(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340(2) of this title), except that—
(i) the term “serious” shall replace the term “severe” where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
Hence, some definitions were different after the the Military Commissions Act of 2006 was enacted, and some were not. Water boarding appears not to have taken place subsequent to 2006, and I am unaware of any legal basis for applying definitions in criminal statutes retroactively. However, it seems as though even well before 2006, substantial efforts were made to avoid the intentional infliction of "severe" or even "serious" physical or non-transitory mental harm, prolonged or otherwise.
Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.
"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."
One of the functions of an attorney is to advise his client how to achieve his lawful goals legally; one aspect of this function is to base his advice on statutory definitions and case law. It is not a proper function of an attorney representing a client to elevate his own notions of morality, or of what "every reasonable person would know," either to a position of superiority over what the law says or over the lawful goals of his client. Should he feel compelled to do so, he should cease representing the client, because he cannot in those circumstances provide adequate representation.
As a reading of the quoted portions of Title 18 U.S.C. Sections 2441 and 2340 should suggest, statutory construction can be a tedious process. Should it be desired to make changes, that should be done by amending the pertinent statutes to provide, with adequate specificity, what is desired for prospective application. For the meaning of laws to be second-guessed long after the fact by those who seek to elevate and apply retroactively their own notions of morality above the definitions provided by statute, is confusing and pernicious. Here, it has led to arguments driven by partisan politics and the associated desire for revenge — which sometimes backfires. That may be happening. A recent poll indicates that:
Only 28% of U.S. voters think the Obama administration should do any further investigating of how the Bush administration treated terrorism suspects.