I wonder how much of the reaction to Gov. Palin's remarks are driven by Palin Derangement Syndrome, which seems to be as common among the Country Club Right as it is on the Left.
Sarah Palin’s comparison of waterboarding to baptism, even in jest, was bad judgment. If I were Gov. Palin, I’d lose all the baptism jokes, since they manage to provoke devout Christians and authentic Muslim moderates as much as they do jihadists. But I think it is a mistake so off-handedly to agree with the Left’s political and hypocritical claim that waterboarding, as applied by the CIA to three high-value al Qaeda detainees under careful (albeit controversial) guidelines, amounted to “torture.”
As we discussed ad nauseum during the debate over “enhanced interrogation,” there is no question that waterboarding can amount to torture (and, indeed, can result in death) depending on the technique used. Nevertheless, torture—if we are talking about the crime, as opposed to using loose rhetoric about physical or mental abuse—has a legal definition. It requires the infliction of severe pain and suffering by a government official who deliberately and consciously intends to torture his victim. (Title 18, U.S. Code, Sec. 2340 et seq.) Moreover, to qualify as psychological torture, the infliction needs to be “prolonged mental harm” of the kind caused by the infliction or threatened infliction of severe pain, or “the threat of imminent death.” (It can also include things irrelevant to our consideration, such as use of mind-altering substances or the threat that third parties, like family members, might be tortured or killed.) Waterboarding the way the CIA executed was highly uncomfortable, but it did not cause severe pain, it was of short duration, and it did not cause fear of imminent death (the detainees were told that they were not going to be killed).
As I’ve previously noted, Attorney General Holder conceded in congressional testimony that the use of waterboarding in the training of some U.S. military personnel was not torture because there was no intent to torture. Furthermore, the Obama Justice Department adopted the Bush administration’s very narrow legal definition of torture before a U.S. appeals court in a case involving JohnDemjanjuk, the late alleged Nazi concentration camp guard who raised fear of torture in fighting his deportation to Germany. And as Karl Rove has recounted, when bipartisan congressional leaders (including Nancy Pelosi, then the ranking Democrat on the House intelligence committee) were briefed on what the CIA was up to on the interrogation front, their main concern was “whether we were doing enough” to extract information from detainees.
None of this necessarily means the use of physically abusive interrogation methods,waterboarding included, was good policy. People who want a categorical ban on such tactics constantly avoid addressing the ticking-bomb scenario and similar questions that bring the logic of their position into stark relief: forced to choose, they would prefer the occurrence of a preventable atrocity and the loss of perhaps thousands of lives to interrogation that harms a hair on the head of a culpable terrorist. In turn, people who argue against categorical bans (as I have done) often avoid addressing the inevitability that tactics they endorse for dire circumstances will be applied in less dire circumstances—and that our resistance to a ban, even though highly qualified, could encourage rogue regimes in their more routine use of abusive practices.