The Myth of an American Torture Program

“I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it and I will not authorize it.Last year, my administration worked with Senator John McCain,and I signed into law the Detainee Treatment Act, which established the legal standard for treatment of detainees wherever they are held.I support this act. And as we implement this law, our government will continue to use every lawful method to obtain intelligence that can protect innocent people, and stop another attack like the one we experienced on September the 11th, 2001.”

Were Enhanced Interrogation Techniques Employed by the CIA Torture?

None of the interrogation techniques employed by the CIA meets the U.S. Code’s legal definition of torture, which requires the intent to cause severe suffering “other than pain or suffering incidental to lawful sanctions,” in the words of the statute. Critics may think the EITs are “what I believe must honestly be called torture.” But what Critics, or I, or anyone else “believes” does not trump what the law actually says, and it is the law (Title 18, Part I, Chapter 113C, § 2340) that our officials must follow, not subjective perception or even international laws that conflict with our own. If people disagree with the law, then there is a political process for changing it.While American law prohibits “torture,” it does allow coercive interrogation.

The central fallacy of the Senate Democrats report is that the EITs “amounted to torture”. But government policy follows the law as written and established by Congress, not what “amounts” to the law in someone’s subjective estimation.Such sophistic language compromises the report’s description of EITs. The techniques cited threats, sleep deprivation, “physical assault,” stripping detainees naked, putting them in “stress positions” are all obviously frightening and painful. But they are not “torture” under U.S. law. Nor is waterboarding, Exhibit A in the left’s indictment of U.S. heinous behavior. That’s why Feinstein slyly says that EITs “amount” to torture rather than explicitly calling them torture, and why she cites international conventions on torture rather than the U.S. law.

Just consult the statute covering torture in the U.S. Code, which defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,” and further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.” The key words are “intended” and “severe.”

As Marc Thiessen concluded in his analysis of the EITs and their legality, “The fact is, none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: because the CIA interrogators did not specifically intend to inflict severe pain and suffering; second, because they did not in fact inflict severe pain and suffering.” And in 2009 Attorney General Eric Holder agreed, when he testified before Congress that waterboarding U.S. military personnel as part of their training was not torture: “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.”

This simple legal reality is why Feinstein in her statements depends on imprecise adjectives like “visceral,” “ugly,” “brutal,” and “harsh” to create a cloud of emotion that hides the fact that EITs were not illegal and were not torture. Furthermore, if Feinstein and other critics think this point is a sophistic evasion and that these techniques are torture, then they should call on Congress to change the law rather than rewriting history to suggest that the CIA did something illegal.

As Jose Rodriguez noted in “Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives”, the term “torture” is inaccurate and that the CIA received guidance from the Department of Justice as to what procedures could be used to avoid “lasting pain or harm” to the detainees.

The fact is, the CIA interrogation program did not inflict torture by any reasonable standard, whether that of the Geneva Convention,that set by the European Court of Human Rights, or American law. It was carefully designed to stay within our laws.

The precise number of CIA officials who were involved in the enhanced interrogation program is classified, but suffice it to say it is a non-trivial number. These brave and decent men and women were put through hell by the Obama administration. They were investigated and cleared of criminal wrongdoing by career Justice Department prosecutors during the Bush administration, only to see Attorney General Eric Holder overrule those decisions and reopen the investigations. After enduring another three-year ordeal, they were cleared a second time by the Obama Justice Department. Yet they continued to be persecuted for their service to our country.

The Bush administration carefully crafted interrogation techniques that could extract information without violating laws against torture. These techniques were all vetted for legality in 2002 and again in 2005 by the Justice Department’s Office of Legal Counsel, documents to this day luridly mischaracterized as the “torture memos.”.

The Justice Department provided written guidance. The media have called this guidance “torture memos,” but they were really “don’t-torture memos,” because they drew a line between “torture” and Enhanced Interrogation Techniques (EITs), coercive methods short of torture as the memos’ drafters believed that term is defined under the relevant laws.
One can argue that Justice Department legal experts drew the line between torture and EITs in the wrong place, but no one who actually reads the memos can say they did not make a serious attempt to draw a line. The charge that they were merely granting license for interrogators to do anything at all is flatly spurious.

The techniques approved, such as waterboarding, were precisely and meticulously calibrated to avoid being torture, which in legal terms requires the intent to cause “severe mental and physical pain and suffering.” Thus a physician and psychologist were present at the interrogations to monitor the detainee’s condition and stop the procedure if necessary.

Moreover, almost 27,000 Air Force personnel had been waterboarded between 1992 and 2001 as part of their Survival, Evasion, Resistance, and Escape (SERE) training, without resulting in serious or prolonged physical or mental harm. If waterboarding were torture, then subjecting U.S. citizens to this training, which includes other interrogation techniques approved for use against captured terrorists, would be illegal.

The fact is, CIA interrogators are good and decent men who went to great lengths to ensure the safety of terrorists in their custody. We should be grateful to them for taking on the thankless and difficult job of interrogating captured terrorists. They elicited information that saved countless innocent lives. Like our soldiers in battle, they took on unpleasant responsibilities so that we could sleep safely in our beds. To call them torturers is not only wrong, it is ungrateful. They are not torturers; they are heroes. Their actions deserve to be defended not just on pragmatic grounds, but on moral grounds as well.

What the CIA did was they developed this program, where they would give terrorists something that did not cross the line into torture. They first started with the least coercive technique first, escalating up to maximum of waterboarding, which is not torture the way it was done by the CIA. And they gave him a chance to resist something. And almost of the people who run the CIA program there were 100 people brought into CIA interrogations only 30 had any enhanced interrogation techniques used on them. The rest said I’ll talk to you, CIA, I will tell you anything you want to know. Thirty of them had enhanced interrogation techniques, and three made it to waterboarding.

But for some reason, Republican legislators and Republican lawmakers are afraid to talk about this. Because they don’t want to be tagged as supporting torture. Well, it’s not torture. In Marc’s book, he explains it in great detail, why what the laws are on torture, you can read the Yoo memos as well, it’s not torture.

CIA Interrogators were not torturers; they’re heroes. They don’t deserve subpoenas; they deserve the Presidential Medal of Freedom. They kept this country safe and stopped the next 9/11. The United States didn’t torture anybody. We did what was necessary to protect our country.

The Bush administration met its responsibility to protect society. And it did so without resorting to torture, by using methods that were lawful, moral, and just.

As for labeling Marc “Pro Torture”. Marc has not advocated torture. He has defended the practices that were used by the CIA in its interrogation program. If you had actually followed his work in detail, you would know that his book discusses, at considerable length, why the practices employed by the CIA were not torture. There is, for example, a chapter in Courting Disaster called “Tough, Not Torture”, which explains what torture actually is and why the CIA tactics, including waterboarding, did not approach the legal line.

This is not analogous to legalistic hocus-pocus by which killing an unborn child somehow becomes not killing because the law denies the child’s personhood. Our law and our practices did not dehumanize the handful of jihadists who were subjected to forcible interrogation tactics. They recognized the personhood of the terrorists, recognized the evil and criminality of torture, and therefore grappled with the reality of torture in order to make certain that our tactics did not cross into that reality.

Our law and our practices did not dehumanize the handful of jihadists who were subjected to forcible interrogation tactics. They recognized the personhood of the terrorists, recognized the evil and criminality of torture, and therefore grappled with the reality of torture in order to make certain that our tactics did not cross into that reality.

Torture is the infliction of severe physical or mental pain or suffering. The physical kind must be excruciating and the mental kind must cause profound and lasting psychological harm. The law has always taken care to distinguish torture from lesser forms of abuse because it is the most heinous of acts. It is important not to trivialize it by applying the explosive label torture to acts that don’t warrant it.

Moreover, there has always been a demanding standard of criminal intent: the accused must specifically intend to torture his victim. The police officer who shoots a murder suspect in a gun fight may inflict severe pain, and know full well when he fires his weapon that severe pain is a certain result, but he doesn’t commit torture indeed, he doesn’t commit a crime of any kind.

Officers of the executive branch have a solemn obligation to protect the American people. It is their highest responsibility. They are not good Samaritans. If there is a serious threat of a mass-murder attack, they are obligated to take all reasonable steps to stop it and what is reasonable depends on the circumstances and the exigency.

The Fact is there is no evidence of any clear-cut, legally binding definition of torture that would expressly exclude any of the enhanced interrogation techniques, when used in very limited circumstances and in a carefully controlled environment in order to elicit information from top terrorist leaders that could save thousands of lives and for which all less harsh alternatives were tried and failed. That is because there is no such definition contained either in the UN Convention itself or in U.S. law.

The Bush-era legal memos placed strict limits on when and how to apply the techniques were specified to avoid any severe long-term physical or psychological harm. They also specified monitoring of the interrogations and high-level signoffs in writing on a case-by-case. Moreover, these techniques were reserved only for the most important and most difficult detainees who were expected to possess valuable, time-sensitive intelligence.

These harsher methods, for example, provided the CIA interrogators with enough actionable intelligence that the government was able to thwart an imminent deadly terrorist attack on Los Angeles. Khalid Shaikh Mohammed, the 9/11 mastermind, gave up vital information that led to the capture of the terrorist leader plotting to hijack passenger planes and fly them into the tallest building on the West Coast, the Library Tower in Los Angeles. He also provided vital information that led to the disruption of an al-Qaeda cell that was developing anthrax for attacks inside the United States.

Such information did not freely flow from Khalid’s lips in a friendly interrogation session. In his initial interrogation by CIA officers, according to former CIA Director George Tenet, Khalid Shaikh Mohammed had defiantly told them, “I’ll talk to you guys after I get to New York and see my lawyer.” Waterboarding changed his mind, and the information he subsequently supplied saved thousands of lives.

The Bush administration lawyers were better off being guided by what the United States Senate stated when it approved the UN Convention Against Torture in 1994, rather than listening to United Nations officials with an axe to grind against the United States. The Senate stated its understanding of torture as an act “specifically intended to inflict severe physical or mental pain or suffering,”which is the definition of torture in the UN Convention itself (Emphasis added.) The Senate went on to define mental pain and suffering as “prolonged mental harm” resulting from such causes as “the intentional infliction or threatened infliction of severe physical pain or suffering or the threat of imminent death (Emphasis added).

As it was entitled to do, the U.S. listed a reservation to its treaty obligations as follows: “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” This was to clarify that the treaty’s prohibition of “cruel, inhuman or degrading treatment or punishment” could not bind the United States to a stricter standard than what constituted “cruel and unusual punishment” under the Eighth Amendment to our Constitution. This reservation was essential in order for the treaty to be lawful, since a treaty cannot supercede the terms of the Constitution as interpreted by our federal courts.

Congress adopted this definition in a 1994 law criminalizing torture committed abroad. If Congress had wished to declare waterboarding or the other specific techniques used by the CIA to be included within the law criminalizing torture, they could have done so for the past seven years but did not. This is telling, considering Nancy Pelosi was briefed upon these techniques in detail.

It is utterly ridiculous to equate coercive interrogation techniques that entail some psychological stress or embarrassment of suspected terrorists with acts of torture or with any common sense notion of cruel or inhuman punishment. The open-ended notion of prohibiting “mental suffering” is an example of what the United States had in mind when it filed its official reservation to the Convention against Torture. Since the UN has not yet been able to even define “terrorism” much less confront it, it is not surprising that they would show more solicitude for the feelings of suspected terrorists than for the innocent people whose lives might be saved by extracting intelligence from uncooperative detainees.

We were invaded on 9/11 and the terrorist networks that we are fighting have threatened to do it again. The UN Committee also wants Congress to enact a federal torture statute according to the UN Committee’s dictates as to what constitutes compliance with international law. The U.S. Supreme Court has assumed jurisdiction over the issue of enemy combatant detainees’ rights and will presumably decide what is appropriate under our Constitution, irrespective of what the UN Committee may think is ‘legal’ or not under some ill-defined international norm.

On the whole, the UN Committee’s one-sided report is yet another exercise in anti-Americanism that should be shelved along with the vast amounts of other useless paper generated by the United Nations. Despite selective ‘evidence’ submitted to the UN Committee by such ultra-left groups as Human Rights First, the record is clear that the United States does not systematically and purposefully abuse detainees within its custody. Aberrations are investigated and punished.The real battle is between the United Nations as the final arbiter of what constitutes appropriate interrogation of enemy combatants suspected of engaging in plots to harm U.S. citizens versus the supremacy of our own Constitutional system of government in protecting U.S. citizens from such harm. The UN Committee challenges the legal basis for our representative government’s asserted right to interpret our treaty obligations in accordance with our own Constitutional requirements. This is the fundamental choice — preservation of U.S. sovereignty and our Constitutional liberties or submission to the supremacy of an unaccountable, non-democratic UN body. We cannot submit if we are to remain a free country.

Yes, the techniques, which some Bush administration critics want to prosecute, were harsh. But there is strong reason to not call them torture. Grabbing, shaking, open-hand slapping, sleep deprivation, exposure to cold and even the simulated-drowning technique called waterboarding do not scar.

Torture is illegal in all cases without exception. But short of torture are a variety of interrogation techniques that seek to elicit information by inflicting stress and duress; by rewarding cooperation and punishing defiance. Such techniques are aggressive and coercive, to be sure, but they do not necessarily “shock the conscience”the commonly agreed definition of torture.

CIA interrogations were guided by strict protocols and monitored by medical personnel. No one was tortured.Despite the myths interrogators did not “ad-lib” waterboardings; on the contrary, writ-ten approval from superiors was always required in advance.Restrictions were placed on the procedure, such as time limits for how long water could be poured. Khalid Sheikh Mohammed figured them out and mocked his interrogators using his fingers to count off the seconds.

The Department of Justice deemed that these techniques were legal, they deemed that these techniques were not torture. Calling it torture means that CIA officers tortured people. When these people used these techniques, the Department of Justice said this was not torture.

We used these techniques only as a last resort, when traditional techniques had failed. We used the least coercive technique necessary to get the information. And we used the techniques for a moral purpose not to elicit confessions or to punish, but to protect society and save innocent lives. We do not use these techniques to extract confessions or punish individuals for wrongdoing. We use them as a last resort, to get information needed to protect society and the lives of the innocent.

Is Waterboarding Torture?

The real issue ignored in all this renewed handwringing over waterboarding is that it is not torture under American law. The statute covering torture in the U.S. Code defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,” and further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.”

The key words are “intended,” “severe,” and “prolonged.” As John Yoo writes in his indispensable book on the subject, in passing this legislation “Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with ‘specific intent,’ the highest level of criminal intent known to the law . . . . If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, it would not be torture.”

However, the law left vague what “severe” means. So in 2002, the Office of Legal Counsel in the Department of Justice clarified the meaning by looking at other uses of similar language in U.S. law. “The only other place” Yoo writes, “where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’” So too with the use of the word “prolonged” in regards to “mental harm.” By including this language, “Congress prohibited the causing of posttraumatic stress disorder or chronic depression,” but not the “temporary strain” of a tough interrogation.

This analysis led to the definition of torture in the 2002 legal opinion smeared as “torture memos”: “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither “torture” nor “illegal.”

And Attorney General Eric Holder agreed in testimony before the House Judiciary Committee in May 2009. Since tens of thousand of American service members were waterboarded during their SERE (Survive, Evade, Resist, Extract) training, Holder was asked why this training wasn’t torture and hence illegal. Holder correctly replied, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.” This same logic perforce applies to the CIA interrogators, whose intent was to gather intelligence in order to defend us from terrorist attacks.

The lack of intent to harm permanently on the part of the interrogators is confirmed by the carefully calibrated limitations imposed on the techniques, as well as the presence of physicians and psychologists to monitor the proceedings and insure that the subject didn’t suffer permanent physical or mental damage. As national security analyst Marc Thiessen writes in Courting Disaster, “none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.”

Critics of waterboarding seize upon U.S. denunciations of waterboarding foreign governments perpetrated against Americans in past conflicts as proof that our practices constitute torture. The keystone of their case is the conviction of several Japanese after World War II for waterboarding American and Allied prisoners of war.

Yet examining the differences between American and Japenese waterboarding throws cold water, so to speak, on this comparison. The few episodes of waterboarding following 9/11 were for very short periods of time and involved cellophane or a cloth placed over the mouth and nose so that no water entered the terrorist’s lungs, nose, or mouth. There was never any possibility, much less an imminent threat, of drowning. Khalid Shaikh Mohammed may have experienced a simulated sensation of drowning, for no more than a few minutes, which caused him momentary panic. But his life was never at risk.

The charges of which the Japanese were convicted reportedly involved the strapping down of prisoners of war to stretchers with warm water poured directly down their nostrils for 20 minutes or longer until they victims were about ready to pass out. In other cases, our POWs were reportedly dunked in tanks of water in such a manner that water was forced into their noses and mouths, and consequently into their lungs, for as long as an hour at a time. Some were slid first into a tub of water and kept there until almost drowned. After being revived, interrogation proceeded and they would be reimmersed. Sometimes, this was accompanied by severe beatings and stompings on the POWs’ stomachs.

All of this was classic “water torture.” Water was forced into the POWs’ noses, mouths and lungs, causing them severe physical distress from the aspiration of fluid and asphyxia. It was used to punish and elicit forced confessions. It bears no resemblance to the very carefully controlled waterboarding, involving no forcing of water into the noses, mouths and lungs of detainees, which was used by the CIA in very limited circumstances shortly after 9/11 to obtain vital life-saving intelligence from only three al-Qaeda leaders, including the 9/11 mastermind Khalid Shaikh Mohammed.

It would be illegal for a foreign adversary to waterboard a U.S. soldier, even if the technique did not amount to torture. American troops are lawful combatants. They wear uniforms or distinctive insignia, follow a clear chain of command, do not hide among innocent civilians, and do not target innocent men, women and children. Because they follow the laws of war, when captured they receive full privileges as Prisoners of War underthe Geneva Conventions — which means it would be illegal for their captors to coerce them in any way, much less waterboard them.

Terrorists, by contrast, are unlawful combatants. They do not wear uniforms or distinctive insignia, or follow a clear chain of command. Not only do they hide among innocent civilians, their primary means of attacking us is to target innocent men, women and children for death. Because they violate the laws of war, they do not receive the privileges that a lawful combatant receives as a POW under Geneva. As a result of their own choices, the United States may lawfully coerce them to provide information about imminent terrorist attacks.

Indeed, it is precisely because they target the innocent that we must coerce them. When an American soldier is captured and taken off the battlefield,he has been effectively disarmed and rendered unable to cause harm to the enemy. But when a terrorist like Khalid Sheikh Mohammed is captured, and he has set in motion a series of terrorist plots, he has not been disarmed. Even in captivity, he still holds the power to kill thousands simply by withholding information. We have a moral obligation to stop him.

Waterboarding as practiced by the CIA bears no resemblance whatsoever to the water torture employed during the Spanish Inquisition, or for that matter by Imperial Japan, the Khmer Rouge or Nazi Germany. One can make an effective case against waterboarding without comparing the men and women of our intelligence community to Medieval torturers.

In response to a direct question about the role of enhanced interrogation in the bin Laden operation, then-CIA Director Leon Panetta confirmed that, “Obviously there was, there was some valuable intelligence that was derived through those kind of interrogations.” His immediate predecessor, Mike Hayden, was even more explicit, declaring, “Let the record show that when I was first briefed in 2007 about the brightening prospect of pursuing bin Laden through his courier network, a crucial component of the briefing was information provided by three CIA detainees, all of whom had been subjected to some form of enhanced interrogation.”

Indeed, Hayden compares those who deny the valuable intelligence obtained as a result of waterboarding and other enhanced interrogation techniques to”birthers” who insist that President Obama was not born in the United States and “9/11 ‘truthers’ who, lacking any evidence whatsoever, claim that 9/11 was a Bush administration plot.” And for those who cling to such notions, in the face of incontrovertible evidence, he has suggested a simple solution: If no valuable intelligence came from those interrogations, they should urge President Obama to destroy all the interrogation reports and never use them again. I doubt The Post would advocate doing so or that President Obama would heed such calls — because he knows his administration uses and depends on that intelligence every day.

Enhanced techniques were never used to gain intelligence. They were used to gain cooperation. They were used to move terrorists like KSM from a state of resistance to a state of compliance. To gauge whether terrorists had made decision to stop resisting and start cooperating, interrogators asked the terrorists questions to which they already knew the answers. In other words, there is no way a terroristc an lie to get the techniques to stop. The only way to stop the techniques is to tell the truth. And once terrorists began telling the truth, the techniques stopped and traditional debriefing techniques were employed -leading to an intelligence bonanza from which the Trump administration continues to benefit today.

We’re often told that waterboarding prisoners and other harsh techniques simply don’t work, and that, more importantly, they violate American values. When they go too far, if they’re used when other methods to extract information haven’t been exhausted, then, yes, they do violate American values.

But what American values would we be upholding if, on grounds of morality, we don’t employ some nasty interrogation techniques on terrorists and the result is a dirty bomb going off in the United States, resulting in numerous deaths?

The fact that some coercive interrogations are permitted does not mean anything goes. But waterboarding (as practiced by the CIA) falls far short of any reasonable definition of torture, and is clearly not an absolute or intrinsic evil, as defined by the Church (we have waterboarded tens of thousands of U.S. service members — do we torture our own troops?).

How about the Argument that Torture Doesn’t work?

Many EIT critics have regurgitated the same claim that “Torture Doesn’t work!”. And while that may be true, it has no relation to the selected EIT’s used under the Bush Administration. The interrogation techniques were not to elicit information. So the whole argument that people tell you lies under torture misses the point. The purpose of the techniques was to “bring them to the point where they are willing to cooperate, and once they are willing to cooperate, then the techniques stop and you do all the things the FBI agents say you ought to do to build trust and all the rest.”

A Response to Christopher Hitchens

In the summer of 2008 Christopher Hitchens traveled to the mountains of North Carolina to a facility where Army special operations forces undergo SERE (Survival, Evasion, Resistance, and Escape) training. There, at his own request, he was strapped onto aboard, his face was covered with a mask and a towel, as a soldier began to pour water on Hitchens’s face-repeating a practice that tens of thousands of American troops have undergone as part of their military training.

Hitchens described the experience in the August 2008 issue of Vanity Fair: “In the pregnant darkness, head downward, I waited for awhile until I abruptly felt a slow cascade of water going up my nose Determined to resist if only for the honor of my navy ancestors who had so often been in peril on the sea, I held my breath for a while and then had to exhale and-as you might expect-inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge, wet paw had been suddenly and annihilatingly clamped over my face.Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the prearranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me. I find I don’t want to tell you how little time I lasted.”

He then adds: “I apply the Abraham Lincoln test for moral casuistry: If slavery is not wrong, nothing is wrong.Well, then, if waterboarding does not constitute torture, then there is no such thing as torture.”’ (Remember that term: “moral casuistry.”) In undergoing this experiment, Hitchens intended to prove that waterboarding is torture. Instead, he proved it is not. There is a legal definition of torture, which we will explore in a moment. But there is also a common sense definition: If you are willing to try it to see what it feels like, it is not torture.

If Hitchens’s tormentors had offered to attach electrodes to his body, and then turn on the switch, would he have tried it to see what it feels like? I seriously doubt it. What if they had offered tore move his fingernails with a pair of pliers? Or drill his teeth without anesthetic? Or place him on a rack and pull his limbs until they popped out of their sockets? Or employ leg screws to crush his bones? Or pour boiling water or oil into his nostrils? Would he have tried any of these techniques? I suspect the answer in each case would be the same.

The reason he would decline, of course, is that each of these techniques would have caused “severe physical or mental pain or suffering”. the standard for torture in U.S. law. Waterboarding, as conducted by the Central Intelligence Agency, does not cause such”severe” pain or suffering-which is why Hitchens was able to endure it.

More than endure it, he was so unhappy with how he performed in the first time around, he asked for a second try. If that does not prove he was not tortured, I don’t know what does. Most torture victims do not ask for more. The interrogation technique Hitchen’s underwent was unpleasant.It was effective. But it was not torture. To his credit, Hitchens had the courage to undergo the procedure before pronouncing it torture. And in his Vanity Fair essay, he respectfully considers the position of those who do not share his conclusions. He writes

The team who agreed to give me a hard time in the woods of North Carolina belong to a highly honorable group…. These heroes stay on the ramparts at all hours and in all weather, and if they make a mistake they may be arraigned in order to scratch some domestic political itch. Faced with appalling enemies who make horror videos of torture and beheadings, theyfeel they are the ones who confront the denunciations in our press, and possible prosecution….I myself do not trust anybody who does not clearly understand this viewpoint.

Hitchens’s respectful disagreement with people he calls “highly decent and serious” stands in stark contrast to the many commentators, news organizations, and even high government officials who have compared these individuals to the torturers of the Inquisition, Nazi Germany, Imperial Japan, North Vietnam, and Cambodia’s Khmer Rouge. These comparisons are incorrect. The techniques used by the CIA bear no resemblance to the techniques used by the Inquisitors of the Middle Ages or the murderous regimes cited by the critics.

It is important to set the record straight-not only to restore the good name of those who interrogated terrorists in our custody, but also to restore the good name of our country. One of the principal arguments made against enhanced interrogations is that they have harmed America’s moral standing in the world. In truth, what hasharmed America’s moral standing in the world are the false comparisons made by those who declare that America has practiced the same techniques as the most reviled despots and dictators in human history-when in fact we have done nothing of the sort.

The Bush administration placed strict limits and stringent guidelines on how waterboarding could be employed. These limits were spelled out in a series of opinions from the justice Department’s Office of Legal Counsel. They are worth examining carefully,because they give the lie to the charge that the CIA was conducting a twenty first century Inquisition.

On August 1, 2002, in a classified memorandum authorizing the CIA to use waterboarding on Abu Zubaydah, the OLC’s John Yoo and Jay Bybee laid out the legal constraints on its application:

In this procedure, the individual is bound securely to aninclined bench, which is approximately four feet by seven feet.The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,”i.e., the perception of drowning.

The individual does not breathe any water into his lungs.During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period,the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth.The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout.You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application

We also understand that a medical expert with SERE experience will be present throughout this phase and that the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm to Zubaydah. As mentioned above, Zubaydah suffered an injury during his capture.You have informed us that steps will be taken to ensure that this injury is not in any way exacerbated by the use of these methods and that adequate medical attention will be given to ensure that it will heal properly.

In 2005, another OLC memo prepared by Steve Bradbury explained the limits in even greater detail. Any American who reads these words should take enormous comfort and pride in the care taken by the Justice Department and the CIA to ensure that the detainee is not harmed during the procedure, and the strict limits placed on its application.

Read more of the response in Marc Theissien’s book Courting Disaster.

Was the CIA’s Enhanced Interrogation Techniques Unconstitutional?

Enhanced Interrogation Techniques did not “shock the conscience” under the 5th and 14th Amendments. The 5th Amendment prohibition on cruel and unusual “punishment” is inapplicable.

They did not constitute “cruel, inhumane and degrading treatment or punishment” under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment because under U.S. law, those terms are limited to constitutional requirements.

In response, the Attorney General “forcefully reiterated the view of the Department of Justice that the techniques being employed by the CIA were and remain lawful and do not violate either the anti torture statute or US obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment. In the course of the discussion, the Attorney General and Pat Philbin gave a lengthy explanation of the law and the applicable legal principles. Their explanation squares completely with the understanding under which the CIA has been operating.

Do Americans Oppose Enhanced Interrogation Techniques?

Despite these efforts to foist the enhanced interrogation report on the American people, three polls indicate most Americans reject the report’s findings. An ABC/Washington Post poll found 59% of Americans believe the enhanced interrogation program was justified while only 31% said it was unjustified. A Pew Research poll had similar numbers: 51% justified, 29% not justified. So did a CBS News poll by a margin of 49%-36%.

The American people are not stupid. Most Americans realize the enhanced interrogation program was initiated in the aftermath of the 9/11 terrorist attacks and was only used against terrorist suspects. They believe this program was justified and have little sympathy for liberal partisans trying to score political points by claiming al Qaeda members with possible knowledge of imminent terrorist attacks may have been treated roughly. Most Americans also know there is no comparison between the enhanced interrogation techniques used by the CIA against terrorist suspects and actual torture.

The American people understand we face an enemy unlike those we’ve fought before, and we are in a war where good intelligence is our most powerful weapon. They further understand that those quick to smear our CIA interrogators as torturers have done so with a highly selective presentation of the facts.

Does the Use of Enhanced Interrogation Techniques destroy America’s Moral Standing in the world?

In the real world beyond our borders, genuine torture is used daily without the sort of legal limits or oversight imposed on our interrogators. And most of the time, the torture is not used to gain life-saving information, but to punish political enemies, terrorize political opponents, or just indulge sadistic cruelty. That is a real “stain.”

There are critical differences between the techniques used by the CIA which were vetted by the Department of Justice, usually overseen by physicians, and subject to precise rules governing their application and the horrific torture going on in countries like Iran. It is childish to fail to recognize that being slammed against a wall or deprived of sleep or confined in a coffin is nothing even close to the genuine torture going on all over the world. I haven’t heard any of the journalists who volunteered to be waterboarded asking to have their fingernails wrenched out with pliers, or electrodes attached to their genitals.

None of those sadistic torturers were trying to obtain information vital for protecting lives, none had physicians and psychologists present to monitor their victims’ health and safety, and none left them without permanent physical damage. In fact, most of those victims died after hours of excruciating agony; not a single detainee in CIA custody has died as the result of supervised interrogation, or suffered permanent injury. However, this sort of irresponsible reporting, exploiting the lurid connotations and imprecision of the word “torture” in everyday use, convinced many in America and elsewhere that the United States was the peer of some of the most brutal and murderous regimes in history.

Neither the Guantanamo prison camp nor harsh interrogations has inspired allies to leave our side, businesses to stop trading and investing here or immigrants to leave our shores. Foreign governments are all too happy to criticize in public, while privately supporting our efforts, which only protect their security, too.

Past U.S. presidents rightly didn’t allow foreign opinion to dissuade them from using the most effective means to victory. Harry Truman dropped the bomb on Japan to end World War II; Abraham Lincoln allowed Sherman’s destructive march through the South. Appeasing foreign opinion is no substitute for the need to make the tough decisions that will defeat a determined enemy.

The Bush administration set a very high bar — of the roughly 100,000 people detained in the course of the war on terror, only 30 individuals had any enhanced techniques applied, and just three were waterboarded. And Marc pointed out in Courting Disaster, the evidence is overwhelming that those waterboarding sessions helped stop terrorist attacks and there was no other way to get the information needed to protect the country.

It is also worth noting that a terrorist like KSM — who has killed thousands and has set in motion plans to kill thousands more — remains an unjust aggressor even while in custody. By withholding information about imminent attacks, he holds the power to kill. According to the Catholic Catechism, those in power have a moral obligation to render an unjust aggressor unable to cause harm.

Like the decision to go to war, the decision to use enhanced interrogation should be used sparingly, under strict controls, and only when they are absolutely necessary to defend society. Just as America always goes to war reluctantly, recognizing that war is a tragedy, even when it is necessary and just, so too do we use these techniques reluctantly — even though we know they are necessary and just.

Gina Haspel and Torture

Gina Haspel, Trump’s pick to succeed Mike Pompeo as head of the CIA, is a thirty-year veteran of the agency, one well respected by intelligence professionals from both parties. If confirmed, she will be the first woman to run our most important security agency. But despite this feminist victory, the Dems are likely to muddy the waters at her confirmation hearings by smearing her with allegations she oversaw “torture” at a black site in Thailand in 2002. Typical of what we can expect is the New York Times editorial titled, “Having a Torturer Lead the CIA,” even as the charge about the black site was shown to be untrue.

Once again, the party bereft of ideas and principle resorts to emotional obfuscation and accusation to advance their ideological prejudices. So, once again, it is necessary to lay out the facts and partisan hypocrisy behind the “torture” charge that has damaged our ability to gather the intelligence necessary to defend our safety and security.

Start with the imprecise or even willfully distorted language that always perfumes unsavory ideologies. In everyday use, “torture” can mean anything from a visit to the dentist to the sadistic mayhem of brutal regimes like Iran or North Korea. As a result, indiscriminate, lurid connotations and emotions attend the use of a word like “torture,” which of course is what makes it so useful for partisan smears.

Laws, however, have to be more precise. The statute concerning torture in U.S. law defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” The law further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.”

The key words are “intended,” “severe,” and “prolonged.” As John Yoo, who was a deputy assistant to the AG during the Bush administration, wrote in his book on the subject, in passing this legislation “Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with ‘specific intent,’ the highest level of criminal intent known to the law . . . If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, it would not be torture.”

However, the law left vague what “severe” means. That is why, in 2002, the Office of Legal Counsel in the Bush administration’s Department of Justice prepared what the left tendentiously calls the “torture memos.” To clarify the law, the OLC looked to other uses of similar language in U.S. law. “The only other place” Yoo writes, “where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’” So too with “prolonged” regarding “mental harm.” By including this language, “Congress prohibited the causing of posttraumatic stress disorder or chronic depression,” but not the “temporary strain” of a tough interrogation.

This analysis led to the definition of torture in the 2002 legal opinion: “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither “torture” nor “illegal.”

But once the Democrats turned against the Iraq War and began exploiting it for partisan advantage during the 2003 primaries, “waterboarding” became the dog-whistle for those eager to condemn the Bush administration’s use of “torture.” Pandering to their blame-America-first base, the same Democrats who had demanded everything be done to prevent another 9/11 tossed their previous support down the memory hole. When Barack Obama was elected in 2008, one of his first actions as president and first fulfilled campaign promise was to issue Executive Order 13491 that rejected waterboarding and other EIT, and stripped our intelligence agents of an invaluable tool.

And an effective one. Despite the lies about the ineffectiveness of waterboarding, former CIA directors Michael Hayden, George Tenet, and Leon Panetta, along with the CIA Inspector General’s report on enhanced interrogation techniques, have said that waterboarding and other now forbidden techniques produced actionable information. In his memoirs George Tenet wrote about the interrogation of Khalid Sheikh Mohammed — the mastermind of 9/11 who personally decapitated Wall Street Journal reporter Daniel Pearl.

According to Tenet, “From our interrogation of KSM and other senior al-Qa’ida members and our examination of documents found on them, we learned many things — not just tactical information leading to the next capture. For example, more than twenty plots had been put in motion by al-Qa’ida against U.S. infrastructure targets . . . All these plots were in various stages of planning when we captured or killed the pre-9/11 al-Qa’ida leaders behind them.” As ex-CIA chief Hayden said, the charge that EIT yielded no useful intelligence “is so untrue” that it “actually defies human comprehension. We detained about 100 people, we had a Home Depot-like warehouse of information from those people.”

More important, in 2009 the Obama administration’s own AG, Eric Holder, confirmed the legality of waterboarding. Since tens of thousands of American service members were waterboarded during their SERE (Survive, Evade, Resist, Extract) training, Holder was asked why this training wasn’t torture and hence illegal.

Holder correctly replied, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.” This same logic perforce applies to the CIA interrogators, whose intent was to gather intelligence in order to defend us from terrorist attacks. The lack of intent to harm permanently on the part of the interrogators is confirmed by the carefully calibrated limitations imposed on the techniques, as well as the presence of physicians and psychologists to monitor the proceedings and insure that the subject didn’t suffer permanent physical or mental damage.

In sum, as national security analyst Marc Thiessen wrote in Courting Disaster, “none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.”

But despite their earlier recognition that waterboarding was legal and effective, the Democrats continued to peddle the torture lie over the following decade. In late 2014, Senator Dianne Feinstein and the Senate Intelligence Committee’s Democrat members released their “Torture Report.” This sensationalized and duplicitous document allegedly detailed the “brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values,” a crime Feinstein said was “a stain on our values and on our history.”

Conveniently left out was the Dems earlier support of EIT. Despite their later claims they were shocked, shocked by the use of EIT. Jose Rodriguez, a 31-year veteran of the CIA who ran the interrogation program, detailed the hypocrisy and untruths of the report. He reminds us that in the aftermath of 9/11, lawmakers demanded that the intelligence agencies do everything possible to stop another attack.

Indeed, Feinstein in May 2002 told the New York Times that “we have to do some things that historically we have not wanted to do to protect ourselves.” In her comments on the Report’s release, however, Feinstein referred to the Geneva Conventions and said, “No exceptional circumstances whatsoever, (including what I just read) whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” No matter that the Geneva Conventions don’t apply to terrorists, or that the EIT are not legally torture. Twelve years later, the political advantages of moral preening had trumped the recognition that hard choices have to be made sometimes to fulfill the federal government’s highest duty to keep its citizens safe.

Rodriguez also explodes the report’s canard that the enhanced interrogation techniques were not legally sanctioned. They were in fact reviewed in 2002 and 2005 by the DOJ’s Office of Legal Counsel, and in 2009 were also investigated by Eric Holder’s DOJ, which did not file charges against those accused of being illegal torturers. Rodriguez also debunks the claim that the CIA withheld information concerning their use from government officials. Rodriguez should know, since he was there when the CIA briefed Senator Feinstein, House member Nancy Pelosi, and other Congressmen on the techniques.

Indeed, Feinstein tacitly admitted her duplicity when she said that EIT “amount to torture.” But government policy should follow the law as written and established by Congress, not what “amounts” to the law in someone’s subjective estimation. The EIT cited in the report -threats, sleep deprivation, “physical assault,” stripping detainees naked, putting them in “stress positions”are all obviously frightening and painful. But they are not “torture” under U.S. law. Nor is waterboarding, Exhibit A in the left’s indictment of U.S. heinous behavior. That’s why Feinstein slyly said that EIT “amount” to torture rather than explicitly calling them torture, and why she cited international conventions on torture rather than the U.S. law.

Gina Haspel is an excellent choice to be the Director of the CIA. Democrats who attack her during confirmation hearings because of the stale “torture” canard will confirm yet again that they are rank partisans of a party that for two decades has put its own political interests ahead of the safety and security of the American people.

Gina Haspel was on the ground around the world, including in the Thai jungle where captured Al Qaeda terrorists were interrogated. And Haspel proved to be much tougher than some of the male politicians back in Washington D.C. who wanted to fight the terrorists who had murdered thousands of people in this country, but expected them to give up their secrets without any inconvenience or pressure.

Haspel and the people under her did the difficult and unrewarding job they had to do for their country. And, like the Vietnam veterans of a previous generation, they returned from Asia to jeers and smears. The women and men who had gone into the heart of darkness had their names dragged through the mud and their careers destroyed by the Democrats and their radical leftist media allies.

Senator Dick Durbin compared them to the “Nazis, Soviets in their gulags” and “Pol Pot”. CNN’s Anderson Cooper echoed him, “if you envision Nazis doing this, and I even hate to say this, if you envision the Khmer Rouge doing this.” And Senator McCain, who is already attacking Haspel, sleazily compared it to Pol Pot, the Spanish Inquisition and the Japanese torture of Americans during WW2.

Now many of the same activists who originally took credit for stopping Haspel in ’13 are back at it again. And some turncoat Republicans like McCain have joined them. Senator McCain has accused Gina Haspel of being involved in “one of the darkest chapters in American history”.

One of the darkest chapters of American history came when we stopped fighting Islamic terrorists and instead turned on those who did. We have nothing to atone for when it comes to our treatment of terrorists. We have something to atone for when it comes to how we treated the men and women who put their lives and careers on the line from Afghanistan to Benghazi to fight Durbin and McCain’s pals.

“The ‘First Woman CIA Director’ Is a Smokescreen,” an Atlantic smear insists. “Gina Haspel’s gender is the least important fact about her.” Like so many other examples of the pro-terrorist genre, it treats us to piteous images of the poor terrorists and the cruel CIA people who made them feel very bad.

And yet there is something very powerful in the image of a woman standing up to Islamic terrorists.

Al Qaeda, the Taliban, the Muslim Brotherhood and the various strains of the Islamic movement envision a world in which women are segregated and enslaved. The female interrogators who turned the tables on captured Al Qaeda and Taliban prisoners were making a meaningful feminist statement. They were doing what the abused women in Iran, Pakistan and Afghanistan would never be able to do.

They fought back.

The media’s idea of a feminist heroine is Linda Sarsour. And Sarsour’s idea of feminism was protecting a sexual harasser, praising Saudi Arabia and Farrakhan. That’s also Tamika Mallory’s idea of feminism. Gina Haspel’s idea of feminism was going after the Islamic terrorists looking to realize Sarsour and Farrakhan’s idea of a perfect Islamic society where women and non-Muslims know their place.

Gina Haspel’s nomination sends a message to Islamic terrorists and their domestic collaborators. And it shows that real feminism looks nothing like the Women’s March. It looks like the new head of the CIA.

To Summarize:

• The Enhanced Interrogation Techniques Employed by the Central Intelligence Agency did not constitute Torture
• Waterboarding as Employed by the Central Intelligence Agency and Bush Administration, did not constitute Torture.
• The Enhanced Interrogation Techniques Employed by the Central Intelligence Agency were not Unconstitutional
• Most Americans are in Favor of both Torture and the Use of Enhanced Interrogation Techniques
• Gina Haspel did not oversee nor commit Torture against any Detainees.
• They took great care to stay within the confines of the law and to ensure the safety of those in their custody. For their efforts, they have been vilified as torturers by critics who know next to nothing about what went on at the “black sites” where they worked.