Laying the Groundwork for a Defense against Participation in Torture

According to the former chief of training at the Navy's Survival, Evasion, Resistance and Escape (SERE) school, waterboarding is a "controlled drowning" that "occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team." When waterboarding is used as part of mock interrogations during SERE training, "A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience to horrific, suffocating punishment, to the final death spiral." (1) Since waterboarding entails introducing liquid into the airway and risks letting water get sucked into the lungs, if it is to be demonstrated at all it makes sense for it to be done under close medical supervision. After all, a mock interrogatee could potentially die during waterboarding, even if only by accident. So why risk it? Well, a lot of military training is risky. Waterboarding, like other coercive interrogation techniques, is used during SERE training to prepare soldiers for what they might face at the hands of our enemies. The rationale is that some of our enemies might be unreservedly evil. They might believe our soldiers to be less than human. They might, like the Nazis, believe they are fighting "a decisive battle between two ideologies" and "an entirely new kind of war" in which "different standards" must be used. (2) Certainly, Al Qaeda has not adhered to the laws of war and has brutally tortured and murdered captives. In sum, when fighting evil totalitarians we need to train our soldiers based on the reality that they might be subjected to torture during interrogation. One question this raises is whether one can be trained to withstand torture. The training environment is artificial, of course. Soldiers are there voluntarily. A medical team is standing by, and the soldiers know their torturers won't actually kill them (at least not intentionally). But even so, experience shows that soldiers often withstand torture without releasing valuable information. During the Vietnam War, despite torture, only about 5 percent of the four hundred airmen captured signed anti-American propaganda statements, let alone divulged sensitive information. (3) Others have behaved similarly: In an examination of 625 instances of torture in France between 1500 and 1750, between 67 percent and 95 percent of victims never confessed, even "on the rack, under repeated drowning, crushing of joints, and the like." (4) When the victims of torture do "talk," they often--and perhaps intentionally--provide unreliable as well as true information. In fact, there is very little evidence that torture is effective as an interrogation technique, and some evidence that it can backfire dramatically. (5) But I digress. The real question at hand is how to hold to account the medical personnel needed to support waterboarding detainees. The method is so dangerous, according to the SERE trainer, that it can be carried out with any degree of safety only if a medical team is at hand. (6) This means, as Newsweek put it, that "presumably" medical teams have monitored the waterboarding of detainees by the CIA. (7) This would be consistent with written assertions from the administration that prisoners are "medically and operationally evaluated as suitable [for coercive interrogation] (considering all techniques to be used in combination)." (8) It would also fit with the leaked assessment of the International Committee of the Red Cross, referring to conditions at Guantanamo, that U.S. physician involvement in coercive interrogations there constituted "a flagrant violation of medical ethics." (9) Beyond ethics, participation in water-boarding could also put these physicians in significant legal jeopardy as parties to a war crime. But this is where the story gets strange. Torture has long been illegal under U.S. law. Since 1984, the legal definition of torture in the United States has been "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. …