The U.N. treaty defined torture as “severe pain and suffering.” The Justice Department witness for the Senate treaty hearings testified that “[t]orture is understood to be barbaric cruelty . . . the mere mention of which sends chills down one’s spine.” He gave examples of “the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs. . . .” Mental torture was an act “designed to damage and destroy the human personality.”

The treaty had a specific provision stating that nothing, not even war, justifies torture. Congress removed that provision when drafting the 1994 law against torture, thereby permitting someone accused of violating the statute to invoke the long-established defense of necessity.

The memo to the CIA discussed 10 requested interrogation techniques and how each should be limited so as not to violate the statute. The lawyers warned that no procedure could be used that “interferes with the proper healing of Zubaydah’s wound,” which he incurred during capture. They observed that all the techniques, including waterboarding, were used on our military trainees, and that the CIA had conducted an “extensive inquiry” with experts and psychologists.