First, here's Montag's quick capsule synopsis of the August 1, 2002 John Yoo memo to the White House on getting away with torture. Basically what it says is, and I'm paraphrasing here, "Chill the fuck out. The ICC can't prosecute you, Torchie Torturton, for violating our obligations under the Convention Against Torture 'cause we put a sweet loophole* on that treaty. And if some activist judge wanted to try, they'd have an enormous burden of proof to overcome." One of the things that would have to be proven, quoting directly now, is that:
...the defendant specifically intended to cause severe physical or mental pain or suffering. See also ... ("For an act to be 'torture,' it must ... cause severe pain and suffering, and be intended to cause severe pain and suffering."). As we have explained elsewhere, in order to violate the statute a defendant must have specific intention to inflict severe pain or suffering - in other words, "the infliction of such pain must be the defendant's precise objective." ...
Second, another argument was made in one of those memos, and efficiently outlined by Winston Smith as follows:
(1) An insignificant percentage of those who have undergone SERE training have experienced lasting harm
(2) Only methods that inflict lasting harm are torturous
(3) The methods used in SERE training are not torturous
(4) Our interrogation methods were all used in SERE training
(5) None of our interrogation methods were torturous
Lastly, Karl Rove chastises that as even more of these memos have been made public, and our enemies can avail themselves of this information, "all of these techniques have now been ruined."
Rove -- while making the despicable argument the ruining torture techniques is a negative thing -- is also making the most sense. Because the perception of the victim who experiences these techniques has to count for something when determining whether torture has occurred.
Apparently the basis of our interrogation regime, or at least the justifications for it, is this:
We do not torture.
We just want our prisoners to think they are being tortured.
The Placebo Effect. By simulating pain, anguish and death, we can make a subject believe they are injured, helpless and dying... without actually torturing them! (Uhhh... let's just say it's a good thing about that loophole.*)
Alas, Rove is right, though. Now that our enemies know about this, all they have to do when they are, say, being waterboarded for the first or hundred-and-first time, is realize that what they are experiencing is simply a trick of their own mind, and hold out until the moment of eminent death when they can rest assured that their life will be spared.
Problem. What do we do?
Here's how we get our groove back: Make it all illegal. Prohibit that shit. Eliminate it as a legitimate instrument of state power. Have the President or someone come out publicly renounce the practice. After that, when our doodz get all Jack Bauer up in some terrorist's face, terrorist will fucking know they're dealing with some crazy motherfucker don't give a shit about the law. Then they'd better come up with some fucking actionable intelligence tout de suite.
More effective torture through prohibition.
*Sweet Loophole! "...when we ratified that convention, we also, if you will, passed a reservation, which then got codified into US federal law, Section 2340 of the US Federal Code. In that code, we said that psychological torture, which is actually the main form of torture practiced by the United States since the 1950s, is basically not torture." --Alfred McCoy on Democracy Now! And get this: our definition of psychological torture? Includes 'extreme physical pain!' LOL.