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Correction to This Article
This column misattributed two quotes defining torture -- that it is "difficult to endure" and "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" -- to the torture statute. The quotes came from one of the Justice Department memos.

Torturing Lawyers

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By Kathleen Parker
Sunday, May 17, 2009

It is supremely surreal to find oneself sipping sparkling water in a sunny hotel courtyard, dispassionately discussing the legalities of torture.

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Yet, there we were, an attorney and I, poring over memos about waterboarding as if they were weekend real estate ads. Three bedrooms, two baths, no more than 40 seconds without breathing, fenced yard, a flexible false wall for "walling."

The moment was both ironic and grotesque -- a clown's nose on civilization.

Our purpose was to examine the memos in the context of the growing drumbeat for "justice" aimed at U.S. Appeals Court Judge Jay Bybee and law professor John Yoo, both attorneys who interpreted the law to allow waterboarding, among other interrogation techniques. In the weeks since Barack Obama released the so-called torture memos, both men have been demonized and tried in the public square for expressing a now-unpopular legal opinion. Depending on the outcome of an investigation pending in the Justice Department, the men could face sanctions or, in the case of Bybee, impeachment.

When did we start punishing lawyers for producing opinions with which we disagree? And where does that road lead?

It is easy now to declare that waterboarding is torture. I personally would agree, but then, I have a low tolerance for the sensation of drowning and the perception of imminent death. And, unlike the prisoners whose treatment has been questioned, I've had no preparation for such trials.

Fortunately, the CIA did not consult me when it needed information from al-Qaeda leader Abu Zubaida six months after the Sept. 11, 2001, attacks. Instead, the agency asked government attorneys to interpret whether 10 interrogation techniques, including waterboarding, would violate the 1994 statute prohibiting torture.

Keep in mind: Terrorist chatter at the time was comparable to pre-Sept. 11 levels. And the CIA had determined that Abu Zubaida had crucial information about another attack.

Bybee and Yoo didn't have much to go on since no court had ever interpreted the statute, but the law is fairly specific. It defines torture as inflicting pain that is "difficult to endure" and that is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Contrary to what I and others have written, the memos did not conclude that techniques could be torture only if they cause "death, organ failure, or serious impairment of bodily functions." That would have left open the possibility for a range of clearly unacceptable abuses. Consider this a correction.

Whether one agrees with the Bybee-Yoo interpretation is a difference of opinion but nothing more. Any fair assessment has to include consideration of context and distinctions that matter, including the definition of waterboarding, which varies according to country and century.

I have no interest in defending one against the other, but there are significant differences between what the Japanese did during World War II, for example, and what was authorized by the U.S. government.


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