The subjective pain of detainees, I noted in a previous post, is irrelevant to the Bybee Memo’s definition of torture, according to which torture refers (or is supposed to refer) solely to the disruption of bodily integrity.
Significantly, the Bybee Memo also includes language that would consider the “specific intent” of an interrogator in determining whether or not he tortured a detainee. In order to count as torture, “the infliction of severe physical pain or severe mental pain or suffering must be ‘the defendant’s precise objective’” (p. 67). The OPR report continues:
Even if a defendant knows that severe pain will result from his actions, he may lack specific intent if “causing such harm is not his objective, even though he does not act in good faith.” However, a jury might conclude that the defendant acted with specific intent. A good faith belief that conduct would not violate the law negates specific intent. A good faith belief need not be reasonable, but the more unreasonable the belief, the less likely it would be that a jury would conclude that a defendant acted in good faith” (p. 67).
Notice the double standard. With respect to detainees, torture refers exclusively to physical processes, without regard for subjective pain; for the interrogator, however, causing severe pain or suffering must be the “precise objective” to count as torture (p. 67). The Bybee Memo grants the interrogator the very subjectivity it denies detainees.
Suppose Zubaydah had experienced severe organ damage due to enhanced interrogation. In order to convict a CIA interrogator of torture, the prosecution would have to prove not only that he damaged Zubaydah’s organs, but that he “intended” to damage Zubaydah’s organs; that he lacked a “reasonable” good faith belief his actions were lawful. The Bybee Memo makes sure to leave Zubaydah’s interrogator an out, even after he has violated its already aggressive interpretation of the statute. Zubaydah’s reports of severe pain would be, by contrast, inadmissible as evidence.
In winning the law’s favor, it apparently helps to be human.