GOP Lawyer Rivkin: Waterboarding Not So Bad — It Alleviates Fear of Execution

U.S. Court of Appeals Judge Jay Bybee shocked a lot of people this week when he told The New York Times that has no real regrets about signing off on the Office of Legal Counsel memorandums that have since horrified much of the American public. Sen. Pat Leahy (D-Vt.), as I wrote earlier, has since invited him to testify publicly about that.

Those memos, as we now know, narrowly defined torture as actions that cause pain akin to the pain that accompanies death or organ failure, and led directly to the use of abusive interrogation techniques such as waterboarding (simulated drowning), prolonged sleep deprivation, forced nudity in extreme temperatures and confinement in a box with insects.

But in a recent conversation I had with Republican lawyer David Rivkin, a former Reagan and first Bush administration official and an outspoken supporter of the second Bush administration’s legal justifications for its interrogation tactics, Rivkin explained the sort of reasoning that former OLC lawyers Bybee, John Yoo and Steven Bradbury were employing.

Rivkin said the authorized “techniques” really didn’t rise to the level of torture or “cruel, inhuman and degrading treatment,” as outlawed by the Convention Against Torture and the U.S. law implementing it, because none of the methods inflicted “severe physical or mental pain or suffering,” as the statute defines torture. One of the statute’s definitions of severe mental suffering, however, is the threat of imminent death. (As Spencer wrote here, Bybee himself wrote that waterboarding involves the threat of imminent death, although he still somehow concluded that it wasn’t torture.)

Well, Rivkin argued, waterboarding and those other techniques couldn’t have been torture, because despite the apparent threat, the detainees knew they weren’t going to get killed.

And how did they know that?

“Assuming even an average level of intelligence, you would have to be an idiot to think that they’re going to kill you,” Rivkin said. “So the fact that you’d be killed deliberately is not a plausible scenario.”

He went on to explain his evidence for this:

“I’ve read lots of memoirs of people languishing in gulags … One thing that emerges very clearly is actually how, despite their horribly grim circumstances, the prisoners actually welcomed interrogations. As a way to break the oppressive monotony of the cell or working conditions. So they always welcome even the most sadistic and unpleasant interrogators. And to the extent that you’re worried about being shot eventually, during interrogations you’re not worried about that. We’re all fairly rational beings, isn’t that a rational point?”

“I’ve read probably a dozen memoirs, from Solzhenitsyn to [inaudible]. While they’re trying to elicit information out of you, while this is going on, they’re not going to take you out and put a bullet to your head,” Rivkin said. “They’re at least going to keep you alive for the interrogation. It gives you a sense that for a while nothing ‘s going to happen to you … the way human beings perceive their odds of remaining alive, the way the anxiety level rises post-interrogation about their ultimate fate is certainly a probative factor that goes into your analysis of what is your mental pain and suffering, associated with interrogations.”

I wrote earlier that National Review fellow Andy McCarthy made a similar argument about waterboarding – the more times you’re waterboarded, the more obvious it is they’re not trying to kill you, the less it’s actually a form of torture.

Rivkin took that one logical step further. At least while you’re being interrogated, no matter what they do to you, they’re obviously not going to kill you because they want answers. I mean, duh — even Solzhenitsyn knew that.

So I guess that means Solzhenitsyn wasn’t tortured, either? But because torture is usually done to elicit information, according to this definition, in that case it can’t involve the threat of imminent death. But then, wouldn’t that render that portion of the statute meaningless?

Let’s see if Judge Bybee (who is now facing a campaign for his impeachment) can explain this one.