"If Bybee had rejected the notion that a subject felt the fear of imminent death in waterboarding, then his approval of it might be defensible. However, that’s not the case. Bybee specifically states that it does meet that definition. But because it only last a few moments or minutes, depending on the number of times the procedure is applied during a single session, the “imminent death” clause is supposedly immaterial.
This makes no sense at all.
Using Bybee’s reasoning, the “threat of imminent death” part of the statute would have to last for months or years in order to qualify as torture. What could possibly qualify in section 2 (C)? We’d have to make a subject smoke for several years and threaten him with cancer.
Imminent threats, by definition, are short-term situations. If one ignores that, all sorts of actions commonly considered psychological torture would be approved. False hangings, for example, could be permissible as long as they didn’t cause serious physical injury. Faked firing squads would also be permissible. Gas chambers, injections, one could go on and on, and all of it would be legal because it doesn’t last for “months or years”. The more obvious conclusion from the statute is that procedures creating an “imminent threat of death” in and of themselves create lasting severe mental pain, which is what makes them torture.
I’d like to defend Bybee, but in this case, with this memo, I have to agree with the critics. Bybee turned 2 (C) on its head in order to justify the waterboarding request. Given the deep fears of further attacks, one can understand why Bybee wanted to give interrogators the greatest latitude possible, but this reasoning is insupportable," - Ed Morrissey, Hot Air.