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.