The Calculus of Torture

Yesterday, Steven Bradbury, the Justice Department official who heads up the Office of Legal Counsel, testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. We posted video of him explaining how the waterboarding practiced by the CIA was miles away from that practiced by the Spanish Inquisition — it was a much more careful and controlled practice (there’s no jumping on the victim’s stomach or vomiting of blood).

But that wasn’t even the most crucial part of his testimony. Bradbury writes the legal opinions that tell the administration how far they can go. And when he (and earlier John Yoo) advised the administration that it was legal to waterboard prisoners, they had their reasons.

With regard to waterboarding, Bradbury explained with chilling sangfroid his legal reasoning. We’ve provided a full transcription of his answers below. It’s the most detailed description of the Justice Department’s analysis with regard to a particular interrogation technique ever given.

If you read on, you’ll learn that “something can be quite distressing or uncomfortable, even frightening, but if it doesn’t involve severe physical pain and it doesn’t last very long, it may not constitute severe physical suffering.” And you’ll also learn that while the victim from waterboarding might panic from the sensation of drowning, the real question is whether “those factors cause prolonged mental harm.” Bradbury concluded that waterboarding does not.

The Military Commissions Act of 2006 drastically changed the equation, Bradbury testified, and the Department hasn’t yet made an analysis of whether waterboarding is legal under its requirements. So for now it’s off the table.

First, Bradbury discussed the torture statute under questioning by Rep. Trent Franks (R-AZ):

FRANKS: Is it your testimony that waterboarding is indeed not torture and if so what, briefly, would you offer as the difference?

BRADBURY: Let me say, first of all, let me make it very clear as I tried to do in my testimony there are a lot of laws that apply here beyond the torture statue and waterboarding has not been used by the CIA since March 2003. There’s been no determination by the Justice Department that its use today would satisfy those recently enacted laws, in particular the Military Commissions Act, which has defined new war crimes for violations of Common Article 3, which would make it much more difficult to conclude that the practice were lawful today.

But under… strictly speaking, just under the anti-torture statute, as we’ve said in our December 2004 opinion, there are three basic concepts: severe physical pain, severe physical suffering, and severe mental pain or suffering, which is specifically defined in the statute. And if something subject to strict safeguards, limitations, and conditions does not involve severe physical pain or severe physical suffering… And severe physical suffering, we said in our December 2004 opinion, has to take account of both the intensity of the discomfort or distress involved and the duration, and something can be quite distressing or uncomfortable, even frightening, but if it doesn’t involve severe physical pain and it doesn’t last very long, it may not constitute severe physical suffering. That would be, that would be the analysis.

Under the mental side, Congress was very careful in the torture statute to have a very precise definition of severe mental pain or suffering. It requires predicate conditions be met and then, moreover, as we said in our opinion in December 2004, reading many cases, court cases, under the Torture Victims Protection Act, it requires an intent to cause prolonged mental harm. Now that’s a mental disorder that is extended or continuing over time and if you’ve got a body of experience with a particular procedure that’s been carefully monitored that indicates that you would not expect that there would be prolonged mental harm from a procedure, you can conclude that it’s not torture under the precise terms of that statute.

The last thing on the torture statute I’d like to say, though, Mr. Chairman, is that the Attorney General has made it clear that if – he’s essentially taken, he’s taking ownership of this issue in the sense that if there were any proposal to use this technique again, the question would have to go to the Attorney General and he would personally have to determine that it satisfies all the legal standards, including the torture statute. And by the way he’s not simply going to rely on past opinions that may have addressed it years ago, he would make an independent and new judgment today as to whether he agrees with that conclusion.

And later in the hearing, he was questioned by Rep. Steve King (R-IA):

KING: But I think also some statements that have been made here need to be clarified. One is the statement that we know what waterboarding is. I don’t think there’s a consensus on this committee as to what waterboarding is. I think we understand from the testimony what some of the historical examples of the more ancient versions of waterboarding are, but I go back to a statement made earlier by the chairman that “as your lungs fill with water,” and I would ask Mr. Bradbury, are you knowledgeable about any activity that would include a modern version of waterboarding in which the subject’s lungs would fill with water, literally?

BRADBURY: No, I’m not.

KING: And I am not either. And so I just point that out to illustrate that we don’t have a consensus on what we see as waterboarding. You did illustrate how it was used by the Japanese in World War Two…..

KING: But I’m interested in one piece of this subject. You went into the details of it to some degree. If your lungs don’t fill with water and the fear definition that you gave, how does one define how this is torture under that definition if there isn’t a physical pain that’s involved and if the lungs aren’t filling with water, could you go back to that fear factor or the mental pain factor, the fear definition that you gave, Mr. Bradbury?

BRADBURY: Yes, Mr. King. Briefly, there is a specific definition in the anti-torture statute of severe mental pain or suffering and it requires certain conditions, certain prerequisites or factors be present, and that those factors cause prolonged mental harm. And one of the factors, the one that raises most questions with respect to this particular procedure, is the question of whether it involves a threat of imminent death. And what’s pointed to there is the physiological sensation that’s created, physiological or mental sensation, almost like a gag urge of drowning. And the question is whether that’s a threat of imminent death.

And as I would understand it, as I think the chairman may have suggested, it’s a reaction that even if you’re involved in training, as I understand it, the subject would have. So whether or not you know that it’s not really involving drowning you have this physiological reaction and that’s the acute nature of it. And if that is a threat of imminent death then you need to ask, is it the kind that would be expected to cause prolonged mental harm? That is, an ongoing or persistent mental disorder as a result of that? That’s what the cases have focused on with respect to the Torture Victims Protection Act and that would be the… the analysis would turn on that.

KING: Thank you. Just a short concluding-

BRADBURY: And may, I’m sorry, Mr. King, may I point out, though, I don’t want the committee to lose sight, there are new statutes on the books and one of them is a new statute that cruel and inhuman treatment, war crime, added by the Military Commissions Act in the fall of 2006. That’s a crime that took this definition from the torture statute and changed it. It eliminated the prolonged mental harm requirement and made it serious, but non-transitory mental harm, which need not be prolonged. That’s a new statute, became effective in the fall of 2006, the Department has not analyzed this procedure under that statute and as I think you can tell from the change in the language that statute would present a more difficult question, significantly more difficult question with respect to this particular….

KING: That language doesn’t sound vague. Are you aware of any version of waterboarding that’s currently practiced where there has been a result of death?

BRADBURY: I am not.

KING: That’s my point. Thank you Mr. Chairman, I yield back.