The Washington Times - May 13, 2009, 11:07AM

As a Senate subcommittee on Wednesday morning heard testimony in Washington on the Bush era interrogation techniques and torture, in Montpelier, Va, the Brookings Institution’s Ben Wittes and journalist Stuart Taylor laid out how the U.S. should handle interrogation going forward.

The talk, a reprisal of a paper authored by the two released a few days ago, argues for three things.

First, Wittes and Taylor say, the torture law should be narrowed and refined. Second, the CIA should be allowed to write its own rules for interrogation, and allowed to use “mildly coercive” techniques. And third, the government should give itself room to allow “highly coercive” techniques in emergency situations when it is allowed by the president on a case by case basis.

Taylor said up front that their proposals would not allow the worst of what was done under President Bush to three “high value detainees.”

“Highly coercive” methods include “such as sleep deprivation and forced standing on a very small number of high-value prisoners if and only if the president and attorney general comply with detailed procedures to ensure restraint and accountability.”

Taylor also argued that President Obama’s current system “gives the government more dirty options” than the plan he and Wittes are proposing. Their paper says this is because although Obama has temporarily eliminated all “enhanced” techniques while a task force studies the issue, he “is free secretly to make exceptions to his order if ever a crisis arises in which he, like Bush, may consider coercion necessary.”

Obama “is not going to go Bush on us,” Taylor said.

“The next president might,” Wittes said.

As for the torture statute, here’s what Taylor and Wittes argue in their paper:

Federal law currently defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.” And it defines “severe mental pain and suffering” to include “the prolonged mental harm caused by or resulting from” any of four distinct behaviors: “the intentional infliction or threatened infliction of severe physical pain or suffering,” “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality,” “the threat of imminent death,” and “the threat that another person will imminently be subjected to” these other harms.
 
There are two problems with this definition. First, “severe” is almost infinitely malleable. The statute does very little to tell an interrogator—or a president—how much pain will trigger criminal liability. Does it have to be “equivalent in intensity to the pain accompanying serious physical injury such as organ failure,” as John Yoo suggested, or will discomfort beyond the scratches and bruises of day-to-day life suffice? What about techniques—such as waterboarding, for example—that leave no permanent mark or damage yet cause excruciating suffering and panic? 
 
Second, the requirement that “mental harm” be “prolonged” introduces an analytical circularity. How can the interrogator know before he performs a technique whether it will cause prolonged mental harm or just temporary mental harm? And how could a jury possibly ascertain his intent? Indeed, why would any interrogator other than a sadist ever intend to cause prolonged mental harm?
 
To correct these problems, Congress should both give texture to the word “severe” and remove the requirement that mental harm be “prolonged,” replacing it with a definition based on intensity and that more textured understanding of severity. Congress might define “severe physical pain or suffering” as, for example, “physical discomfort of such intensity and duration as to be unendurable by an average person.” And it might define “severe mental pain or suffering” as “the mental harm caused by or resulting from” the four currently-listed tortures as well as a more generalized fifth category: “the infliction of any other techniques of mental or psychological manipulation that are of sufficient intensity and duration as to be unendurable by an average person.” Not every technique of coercion hurts enough to render a person willing to do anything to make it stop. Those that do are the ones that deserve the special mark of criminal-law opprobrium. Such a rule will not by any means make completely clear where along the spectrum of coercion pressure crosses the line into torture. It will, however, both offer more guidance than current law does and clarify that certain specific techniques that are now arguable cases fall clearly on the criminal side of the line.
 
To add additional clarity, Congress might follow the Army’s lead and identify a specific set of off-limits tactics—not as a comprehensive list but as a representative sample. The Army Field Manual both identifies the techniques that it authorizes and specifically proscribes techniques to be avoided. The relevant language reads:

If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to, 


• Forcing the detainee to be naked, perform sexual acts, or pose in a sexual
manner. 
• Placing hoods or sacks over the head of a detainee; using duct tape over
the eyes. 
• Applying beatings, electric shock, burns, or other forms of physical pain. 
• “Waterboarding.” 
• Using military working dogs. 
• Inducing hypothermia or heat injury. 
• Conducting mock executions.
• Depriving the detainee of necessary food, water, or medical care

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The paper by Taylor and Wittes is to be part of a forthcoming book called “Legislating the War on Terror: An Agenda for Reform.”

— Jon Ward, White House reporter, The Washington Times

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