National Review's Andy McCarthy, fresh off of considering whether not wearing a tie with your button-down is proof of Islamist sympathies and cheering the birthers, attempts to argue that what the CIA IG report describes isn't torture:
Here, it is necessary to clear up some Holder-induced confusion. The attorney general, like his president, claims that all waterboarding is torture (which is not true) and implies that interrogation practices under Bush’s CIA program were forms of torture even if the DOJ guidance permitted them (which is further still from the truth). That lays the groundwork for Holder to posit that any CIA practices that went beyond what the DOJ permitted were certainly torture.
Well look, not even the CIA claimed that its use of waterboarding wasn't torture, as McCarthy has over and over, on the basis that it's been used to train American soldiers to resist torture. McCarthy makes the argument again here, noting Holder's testimony that "U.S. government trainers who waterboard military and
intelligence personnel cannot be guilty of torture. " The IG report quotes an interrogator who acknowledges that the difference between SERE waterboarding and CIA waterboarding is that the latter is "for real." McCarthy somehow missed that part of the report.
McCarthy then goes on to argue, presumably with a straight face, that the mock executions staged by the CIA were not really mock executions:
This is where the “mock execution” comes in. In assessing whether the interrogator intended to inflict prolonged psychological damage, threats to third parties are relevant. If one were to tell a detainee that if he didn’t cooperate he’d be killed just like X non-cooperator, and then a mock execution of X were staged before the detainee’s eyes, that would be egregious. If a mock execution of X were staged before the detainee’s eyes but without threatening the detainee that he was next, we get into the same “lack of certainty” we saw with the element of imminence. And the threat would be vaguer still if the detainee were told nothing but heard shots fired, was shown an apparently dead body, and was left to speculate about what had happened and what it might portend for him.
This is absurd. McCarthy puts "mock execution" in scare quotes, but the section in the IG report he's discussing is titled..."mock executions." That's the term the Inspector General uses.
The IG report says that the "debriefer entered the cell where [suspected Cole bomber Abd al-Rahim] Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri's head". A gun is not a comb. A gun is for killing people. Given that, just the day before, Al-Nashiri was led to believe he was listening to what he thought were people being executed nearby (complete with an interrogator posing as a detainee corpse) there is no "lack of certainty"-- the entire point was to make Al-Nashiri think he was going to be killed if he didn't cooperate. The line between threatening and implying here is being so deliberately walked that it reveals intent: to threaten someone with death in a manner that one can plausibly argue that they weren't threatening someone with death.
Moreover, American laws define torture partially as "the threat that another person will imminently be subjected to death, severe physical pain or suffering". Al-Nashiri, after being lead to believe that he was in a country known to torture detainees by raping their female relatives in front of them, was told by an interrogator that "we could get your mother in here" and "we can bring your family in here". Again, the intent to convince Al-Nashiri that his relatives might be harmed is the entire point of the deception--it's not the slightest bit nebulous unless you want to argue what the definition of "is" is, which may be why McCarthy doesn't address it.
Not only does the implied threat of raping Al-Nashiri's relatives not make it into McCarthy's weak defense of torture, neither does the CIA's explicit threat to alleged 9/11 architect Khalid Sheik Mohammed that "We're going to kill your children." Although one can imagine McCarthy's response--"Not knowing the tone of voice the statement was made in, it's impossible to ascertain specific intent..."
At any rate, not only is McCarthy arguing that torture techniques authorized by the Bush DoJ aren't torture, he's arguing that techniques that weren't specifically authorized aren't torture either, because they also weren't specifically prohibited--as Daphne Eviatar has written, that may have been done deliberately to encourage abuse, in which case it may be a crime. There's also the issue that McCarthy's standard for torture can't be met by an agent of the United States government--it requires a kind of "intent" that, since interrogators were looking for intelligence information, they don't have.
Obviously, that is why the Obama-Holder Justice Department has argued in federal court that government officials do not commit torture, even if they actually do inflict severe pain on a detainee, unless it is clear that torturing the victim was their purpose. If they had a different purpose, there is no torture.
McCarthy not entirely wrong on torture being an "intent specific" crime. It's just that for McCarthy (I'm unaware of the case he's referring to with regards to the administration, but I'm looking into it), one can't "specifically intend to inflict severe mental pain or suffering" if that's not the sole motivation. The statute doesn't say that, and I'm hard pressed to understand how shackling a diapered person in a stress position so they can defecate on themselves without being moved out of it isn't intended to "inflict severe mental pain or suffering." The point is to inflict such suffering in order to get the person to talk.
McCarthy also writes that "We trivialize the concept, and the barbarities committed by history’s monstrous regimes, when we apply the label “torture” to conduct that, though disturbing, does not approach this level of horror."
Even if you agree with McCarthy that our torture techniques gleaned from such models of respect for human rights as China aren't torture, what McCarthy is saying is that as long as an intent to cause harm wasn't the primary motivation for torturing someone, the CIA could do just about anything to the detainees in their custody and it wouldn't be torture, barbarities or otherwise. The CIA officers themselves were more tethered to reality than McCarthy is--they were concerned they might face prosecution as a result of what they were doing.
-- A. Serwer