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Writing behind the paywall at the National Journal, Stuart Taylor makes a sustained effort to defend Jay Bybee and John Yoo. He expresses his support for the analytical approach that Yoo pioneered in the memos, starting with the idea that while techniques like waterboarding may well be “torture” as the term is commonly used, it is not “torture” within the specific definition that Congress put forward. That is the key Yoo premise: that Congress chose to punish only some exotic exceedingly rare kinds of torture. Indeed, Yoo doesn’t seem to be able to identify anything that always constitutes torture, even if it results in death. David Luban makes short work of the Taylor apology in a recent post:
The 1971 OED: “severe or excruciating pain or suffering (of body or mind)….”
Webster’s Third International (1971): “intense pain”
Webster’s Second International (1953): “severe pain” and “extreme pain”
American Heritage Dictionary (1976): “severe physical pain”.
In other words: the colloquial meaning of ‘torture’ is virtually the same as the legal definition. The OED definition, by the way, is so similar to the CAT definition that it seems likely that whoever drafted article 1 of CAT may have drawn on the OED.
Another argument that Taylor makes goes back to the use of the SERE techniques: “10,000-plus SERE trainees have almost unanimously reported that waterboarding caused no severe physical pain and no prolonged mental harm.” As readers of Philippe Sands’s book The Torture Team know, this was the precise rationale used by the Bush Administration “war council” lawyers in developing their procedures. Responding to him, Luban notes that the memoranda do not say what Taylor seems to think they say. They say that an individual engaged in training in the program claimed that the SERE program never caused prolonged mental harm, because the drop-out rate was very low. But this is no real basis for comparison, because the mental harm caused in a controlled training environment cannot be compared with its use in an unpredictable, menacing environment connected to human intelligence gathering.
The arguments Taylor makes here weren’t good arguments five years ago, and repeating them like a broken record doesn’t make them any better.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:
The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.
Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.
Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:
An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.
A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”