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Bradbury on Waterboarding: It doesn't last long enough to be torture
Feb-16-08 12:58 pm


Last Thursday, Acting Assistant Attorney General for the Office of Legal Counsel Steven Bradbury testified before House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. In the course of the hearing, Bradbury defensed the legality of waterboarding. I think our Georgetown colleague, Marty Lederman, has the best take on this:
Rep. Nadler asked Bradbury how OLC could possibly have concluded that waterboarding is not torture -- After all, isn't the whole point of the technique to induce severe physical pain and/or suffering so as to compel recalcitrant detainees to talk? Doesn't its reported effectiveness -- most victims cannot withstand more than 30 seconds of it -- speak for itself? Of course it's designed to inflict severe physical suffering. And if it does so, as Bradbury concedes, it's prohibited torture, no matter what the justification might be.

Bradbury did not respond directly to Nadler's question (although later he tipped his hand as to why he has concluded that the CIA waterboarding is not torture -- see below). Instead, Bradbury tried to reassure Nadler, and later Representative Franks, that the CIA's waterboarding was not as bad as press reports would have it -- that our variant of the technique is materially distinct from the sort of water torture used by (i) the Spanish Inquisition; (ii) U.S. forces in the Philippines at the turn of the 20th Century; and (iii) the Japanese in World War II. In those earlier historical examples, there was a "forced consumption of a mass amount of water," and occasionally the interrogators would stand or jump on the stomach of the victim, sometimes leading to "blood coming of the victim's mouth." Which apparently crosses the line. Thankfully, we do not do such terrible things.
Lederman continues:
Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, "subject to strict safeguards, limitations and conditions, [it] does not involve sever physical pain or severe physical suffering -- and severe physical suffering, we said on 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 comfortable, 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 the analysis."

Let's be very clear: This so-called "analysis" is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible, for reasons I have discussed at length. The fact that Judge Mukasey continues to abide by it is a scandal. And the fact that Congress has not said a word about this legal linchpin of the OLC/CIA regime is even worse.

Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it.
Lederman is correct. And I continue to be profoundly troubled that arguments could be made that the waterboarding experience would not be considered severe simply because it does not necessarily last more than seconds. Give the intensity of the expereince-- witnessed by the fact that victims cannot "last" more than seconds-- it is clearly severe physical suffering. Moreover, lest we forget under its legal definition, torture means not just severe physical pain and suffering, but also mental  pain and suffering. If I am waterboarded and only last 15 second,s I have experienced severe physical suffering for those 15 seconds, But I have also experienced several mental suffering. And who knows how long that mental suffering persists-- especially because of the possibility that they will waterboard me again.

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.


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