Marty Lederman’s blogging on the terrorism legislation has been superb. His latest is Three of the Most Significant Problems with the "Compromise". Here is a taste:
The bill would define ˜serious mental pain or suffering" to be basically coterminous with the term ˜severe mental pain or suffering" under the torture act, except that as to conduct occurring after this law is enacted, the definition would cover conduct not only intended to result in "prolonged mental harm" (as is the case under the torture statute), but also conduct intended to result in "serious and non-transitory mental harm (which need not be prolonged)." What does it mean for "serious" mental harm to be non-transitory but also non-prolonged? The bill does not say. Between transitory and prolonged falls . . . the shadow.
More important is the bill’s definition of ˜serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering — and the prospect of ending such suffering by telling one’s interrogators what they wish to hear — is the whole point of using such techniques in the first place. But remarkably — and not accidently — the bill’s definition would not cover all such actual "serious physical suffering."
The definition would require, for one thing, a "bodily injury" — something that would not necessarily result from use of the CIA techniques — even though one can of course be subject to great physical suffering without any "physical injury."