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Doesn’t the Impact of SERE Techniques Depend on Context?

Anyone following the twists and turns of the increasingly cacophonous torture debate knows by now that one way the Office of Legal Counsel justified its many “extreme” interrogation methods — simulated drowning, slamming prisoners’ heads into walls, prolonged sleep and food deprivation, confinement boxes with insects, etc. — is by saying that all of this was proven not to cause any harm, physical or mental. These claims are based on the techniques’ use on U.S. soldiers undergoing SERE [Survival, Evasion, Resistance, Escape] training.

So on a Federalist Society-sponsored conference call with reporters this morning, David Rivkin, a corporate defense lawyer and former Justice Department official under Presidents Reagan and George H.W. Bush, reiterated the point that SERE trainees were never really hurt by their training; therefore, neither were suspected terrorists. Accordingly, the techniques cannot possibly have violated domestic or international law forbidding torture and cruel, inhuman and degrading treatment.

“It’s in this area that SERE research is so compelling,” said Rivkin. “Researchers went back at frequent intervals and analyzed large numbers of people” who underwent this training, and there was “no evidence to show that SERE training caused mental pain and suffering.”

OK, let’s set aside for a second that the memos also noted that interrogators in real-life situations at CIA black sites probably weren’t following the same laboratory-controlled conditions that SERE trainers follow on a U.S. military base, and, as Spencer has pointed out, that the trainers themselves acknowledged that such practices violate international law.

Focusing purely on the psychological impact of the techniques: if you’re a soldier undergoing training under carefully monitored conditions, isn’t your experience of those SERE techniques going to be completely different than if you’re a prisoner captured by a foreign country and subjected to them by people trying to extract information from you? Isn’t the whole point of using “extreme interrogation techniques” to terrify the subject, so they will cough up useful information?

In other words, if we’re talking about the psychological impact of the techniques, it’s unclear to me how the impact of SERE training on U.S. soldiers even relevant to gauging the impact of those same acts by hostile interrogators on prisoners labeled “enemy combatants.”

As every lawyer knows, the lawfulness of any action depends heavily on its context. It’s a bit odd how easily some conservative lawyers are ignoring this one.

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