This post is adapted from my new draft article, The Experiential Future of the Law. Comments on the article are welcome at akolber “at” sandiego.edu:
Waterboarded interrogatees are strapped down on an incline, with their feet elevated above their heads, while water is poured over their faces to give the sensation of drowning. A federal statute prohibits those acting under color of law from engaging in acts “intended to inflict severe physical or mental pain or suffering” on people in their custody or control. Does waterboarding constitute the sort of intentional infliction of extreme pain or suffering that can qualify as torture?
We often address the question by focusing on the interrogation technique in the abstract. Generally speaking, waterboarding probably does inflict extreme pain and suffering. In fact, however, whether a person experiences extreme pain or suffering (and whether we can expect a person to) depends on the relationship between the person and the way he is treated. A person who developed PTSD from having nearly drowned in a swimming pool as a child will react differently to waterboarding than will a Marine who has advanced training in how to resist waterboarding. Defacing a religious text may constitute extreme suffering to one person but be largely inconsequential to the next.
Despite variation in interrogatee sensitivity, we seem inclined to rely on broad categories of prohibited interrogation behavior. Another way of safeguarding interrogatees, if we had sufficiently reliable technology, would be to limit the maximum distress an interrogatee is permitted to experience, based on certain biological markers. For example, we can already measure several markers of acute distress, like pulse, blood pressure, levels of stress hormones, galvanic skin response, and others. We’re even getting better at predicting which sorts of interrogation techniques are likely to lead to long-term negative effects. (There may be an unacceptable risk of electrocution that makes it impossible to measure distress during waterboarding, but there are lots of other interrogation techniques; so the general point remains.)
The idea of measuring people’s acute distress seems disturbing, but the concern is misplaced. The harm caused by inflicting some amount of distress is far more troubling than the comparatively slight invasion caused by measuring it. In fact, if you’re permitted to inflict modest amounts of pain or suffering, then perhaps you are morally obligated to measure the distress inflicted to make sure it does not reach a more extreme level.
The reason that the measurement of distress seems so troubling is that it forces us to palpably recognize and quantify the nasty business of intentionally making people suffer. The measuring is not the principle act of harm, however. Measuring merely forces us to confront and better quantify the real concern—the pain and suffering itself. If it's impermissible to measure the pain of technique X, you probably shouldn't be doing X in the first place.
There are several reasons why we might rely on “categorical” methods of banning torture rather than engaging in individualized measurements. I'll name just two. First, we may not be good enough at measuring acute distress. (True, though someday we probably will be.) Second, we may be skeptical of those tasked with measuring distress levels. We fear that they will simply rubber stamp torture. (True again, though it is far from clear that we couldn’t adopt procedures to reduce this concern. If people can be dishonest about measuring distress, they can be dishonest about what categories of interrogation are used.) In any event, we should not lose sight of the fact that even if we ban certain methods of interrogation, those methods are just rough proxies for our true concern, namely the intentional infliction of extreme pain and suffering.
(X-posted).
