Former Acting Assistant Attorney General Daniel Levin
(November 2007)

This story is connected to the current controversy over whether waterboarding qualifies as torture. So that we can all agree on our terms, permit the Ethics Scoreboard to clarify the issue.

Of course waterboarding is torture! Are you kidding?

What else would you call it? Bad manners? A prisoner is strapped to a board and forced to experience something that feels a lot like drowning in the hopes that he will be so frightened or uncomfortable that he will tell interrogators what they want to know. Doesn’t that sound like torture to you? All the legal memos in the world parsing treaties and court language to reach a perverse conclusion that waterboarding somehow doesn’t fit a technical definition of torture can’t change what it is. It’s torture.

Now that we’ve settled that, on to the heroic Mr. Levin, who while he was a high-ranking Justice Department official in 2004 found himself in the middle of the legal word games being used to justify the use of waterboarding on terrorist suspects. Mr. Levine, clearly a dedicated practitioner of the Golden Rule, decided that he couldn’t write a legal argument defending the use of waterboarding on prisoners without experiencing waterboarding himself. Don’t do unto others what you would regard as torture if they did it to you. So he went to a military base near Washington and underwent the process voluntarily.

Not surprisingly, he didn’t care for it. In fact, he told White House officials that even though he knew he wouldn’t die, he found the experience terrifying and felt that it amounted to simulated drowning. His subsequent memo describing the use of torture as “abhorrent” reflected his belief, based on actual experience, that waterboarding qualified for that description.

Shortly after Alberto Gonzalez began his undistinguished and truncated term as Attorney General, Levine was forced out of Justice. But he did the right thing, even though it required courage two-fold: first, to actually subject himself to torture, and second, to oppose the obvious sentiment of his superiors in favor of employing torture.

A judge who imposes life imprisonment or death by electrocution has no ethical obligation to have first-hand knowledge of what he is inflicting on another. These are result-oriented punishments: the purpose of one is to isolate a prisoner from society, and the purpose of the other is to kill him. But when the infliction of an appropriate degree of pain or discomfort is the objective, there is an ethical obligation for the individual with the power to inflict the pain to know exactly what he or she is doing to another human being.

In the classic holiday film “A Christmas Story,” the young hero utters a “dirty word” and is condemned by his mother to hold a bar of soap in his mouth. After the punishment, his mother puts the soap in her own mouth out of curiosity, and her expression leads us to wonder if Ralphie will ever have to endure that particular form of retribution again. With interrogation techniques, the question of whether a procedure qualifies as torture depends on degrees of intensity, anguish, cruelty, severity of pain and humiliation from the point of view of the individual who is subjected to it. Everyone else can speculate; surely classic tortures like branding with hot irons, stretching on the rack, crucifixion and use of electric shocks can be identified as such without much debate. But if there is doubt about how intense, excruciating, painful and cruel a borderline procedure is, there is only one accurate and fair way to settle the matter.

Try it out; put the soap in your own mouth. If you are so frightened of what you will experience that you aren’t willing to do that, well, that answers the question of whether it is torture or not, doesn’t it? If it seems like torture to you, either in the abstract or from actual experience, it is unethical to inflict it on others.

Daniel Levin understands this. As a result, he now regards waterboarding as torture, and doesn’t work for the Justice Department any more. How ironic. For if there ever was a government department in need of an Ethics Hero, the Justice Department under the Bush Administration is it.

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