So why the need for these memos? The CIA felt compelled to ask for the Justice Department's opinion on whether its methods violated national laws prohibiting torture. Long-winded and detached, the memos are the quintessence of legal writing. And yet they're worth a read, if for no other reason than that a layman's standard is sometimes so different from a lawyer's.
What would the average American make of these 100-something pages? In some cases, nothing at all. Two of the milder techniques outlined by Bush Justice lawyer Jay Bybee's August 2002 memo are the "facial slap" and the "facial hold." Setting aside the legal standard, neither seems tough enough to call torture. After all, mothers have been known to command a child's attention this way.
But other techniques raise the average reader's eyebrow. The effects of sleep deprivation, Mr. Bybee writes, get worse the longer it's used. Cramped confinement requires careful logistics to be practiced "humanely." Stress positions, which induce muscle fatigue and ankle and foot swelling, are also dubious. Waterboarding demands particular attention.
All these techniques must pass a litmus test set by US law: They can't be "intended to inflict severe physical or mental pain or suffering," otherwise they're torture. The memos easily parse the physical. None of the pain these methods inflict, Bybee concludes, legally counts.
On cramped confinement, he concludes: "[A]lthough confinement boxes (both small and large) are physically uncomfortable because their size restricts movement ... we do not think that the use of these boxes can be said to cause pain that is of the intensity associated with serious physical injury." It hurts – but it doesn't hurt badly enough.