Malcolm Nance [Director, SRSI – Special Readiness Services International]: "That the National Director of Intelligence, Mike McConnell would recently come out and opine that waterboarding "[W]hether it's torture by anybody else's definition … for me it would be torture" tells me that the heretofore positive view of torture may be ready to dramatically reverse itself.

First, an aside. Admiral McConnell is a person who falls under the highest risk of capture as the highest level official of the US intelligence community. It would seem to me that as the NDI he should have already been a recipient of some form of Level "C" code of conduct training for intelligence personnel who could become potential peacetime detainees, terrorist hostages or prisoners of war. The reason I mention this is that Mr. McConnell, as executive program manager for all US intelligence should already have seen the waterboarding process in training at one of the agent survivability courses. I am surprised that he chose to offer speculation in a variety magazine about how it could or could not feel. His words betray him. He has seen it, even in a training environment and he doesn't like what he's seen.

I suspect that Mr. McConnell, like Judge Mukasey, is waiting for a clear legal standard for torture (backed up by centuries of precedence) before he will cross the line to condemn the administration's use of it on captured prisoners. In Mr. McConnell's words, he is not sure if it is "legally" torture … but torture is any technique that deliberately inflicts pain, anguish and mental suffering to induce responses by threatening more pain – and it should shock the conscience.

Clearly Mr. McConnell has already been shocked. He states in his New Yorker interview waterboarding already meets his personal definition of "… excruciatingly painful to the point of forcing someone to say something because of the pain…"

Mr. McConnell conjectures quite accurately when he says "If I had water draining into my nose, oh God, I just can't imagine how painful! Whether it's torture by anybody else's definition, for me it would be torture." That is exactly what happens when the water fills the nose, throat and pushes into the lungs. The entire process is designed to make the subject say something to make the pain stop… it's the pain and fear of more pain that makes the victim talk… about anything; truth, lie or all of the above.

As a former intelligence professional, its clear to me that Director McConnell is not just letting his personal opinion roll off his tongue, but he is sending a message across the community that this practice is about to be outlawed in US intelligence. Perhaps he is also trying to assist Judge Mukasey to give him a legal opinion to back him up? Anything is possible. Still he threateningly adds "If it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it." To his credit one can surmise that when the hammer drops he wants to be on the right side of the issue. And woe betides those who chose to be on the wrong side and participated willingly on the President's say so.

Refreshing as it may seem, we will have to wait to see if his presupposition that waterboarding is, as it has always been, illegal or merely turned into a stressful and unpleasant way to talk to terrorists, precedence and rule of law be damned. As JURIST commentators and many other legal scholars have discussed, there is no such finding or discussion necessary — torture is illegal under many US and international statutes today.

Hopefully the Justice Department's criminal investigation of the destruction of videotapes, which it is alleged shows the direct torture of Al Qaeda suspects, will pry open the sense of moral courage among the more righteous members of the CIA and Justice Department. We need to bring to account the people who decided torture is criminal when the enemy does it but acceptable, debatable and legal when we do it."