Torture is a powerful word. Take care when you bandy it about.
If as the New York Times reports, a 2005 Justice Department memo actually endorses "waterboarding" as an interrogation technique, then the memo deserves condemnation on that ground alone. But the other reported conclusions in the memo are not so clear cut -- and the conventional wisdom that the memo endorses "torture" is hyperbole.
Whether we like it or not, the memo is an attempt to do what the Administration has to do: define what interrogation techniques are permissible under the law. And yet, reflecting the knee-jerk reaction to the memo, Rory Kennedy lambastes the Bush administration's definition of torture as "severe physical or mental pain or suffering" that results in significant harm of significant duration, lasting "months or even years."
According to Kennedy, that definition is "unrecognized anywhere else." Actually that definition comes from the Torture Act, which is the US law that codifies our obligations under the Convention Against Torture. The Act, which was signed into law by President Clinton, specifically requires suffering that is "prolonged."
To have credibility, Democrats need to confront the unpleasant specifics of the debate. Like many legal standards (consider the ubiquitous "reasonable" in the law) the concept of "severe physical or mental pain or suffering" is not specific enough for interrogators in the field. When the next President takes office, s/he will have to define "torture" and, by default, anything short of torture is going to be permissible. The result will inevitably be that some very harsh interrogation techniques are allowed. This might help explain why Hilary Clinton has carefully refused to rule out specific interrogation techniques -- for which Andrew Sullivan has taken her to task.
So did the Administration get anything right? As noted, the idea that "waterboarding" falls outside the Torture Act is clearly wrong, as Sullivan points out. But the other techniques allegedly endorsed -- head-slapping, sleep deprivation, hypothermia, and stress positions -- what about those? To issue a blanket condemnation of such techniques as "torture" dangerously waters down the power of the word. In reality, such judgments have to be made on a case by case determination, depending on the severity, the duration, and whether multiple techniques are used in combination. These aren't pleasant topics, but the Administration's memo should be an invitation to debate, not an excuse to avoid debate altogether.