The CIA interrogations followed the law

Laws are a technical business in which both terminology and chronology play a part. So if the law that criminalizes torture defines it in a certain way, that definition—and no more—is what it is, punditry and cocktail-party figures of speech notwithstanding.

In September 2001, there was but one law that defined torture, making it a crime to act with the intent to cause “severe physical or mental pain or suffering.” Severe physical pain or suffering is not defined. Severe mental pain or suffering is defined as “prolonged mental harm” resulting from any of four causes, including causing severe physical pain or suffering.

So, to take the harshest of the techniques used in the CIA program, and the one that has therefore become emblematic of them all, the central question is whether waterboarding as applied by the CIA to the three terrorists who underwent it would have caused severe physical or mental pain or suffering. The procedure used by the CIA involved placing a detainee on a flat surface with his feet slightly elevated, placing a towel over his face, and pouring water over his nose and mouth repeatedly for periods that did not exceed 40 seconds. If that does not cause severe physical or mental pain or suffering, it is not torture, and those who applied it cannot reasonably be said to have acted with intent to cause such pain or suffering.