Brutal Logic

It's bad, it's disgusting, it's wrong. But is it torture? Lawyers have some explaining to do.

For over a decade, the United States has lived with a loose definition of "torture" that is significantly out of line with that of most of the rest of the world and invites the kind of manufactured distinctions that give lawyering a bad name. Moreover, officials in both Congress and the executive branch have winked and nodded at practices such as sending prisoners to countries that will do our dirty work for us. Our chief executive, in our name, professes to be shocked, just shocked, that scandalous practices are occurring in Afghanistan and Iraq. Perhaps George W. Bush would offer the excuse that he reads no newspapers; he gets his information only from self-serving courtiers. There is no excuse for presumably better-read members of Congress and, most of all, those of us who did read the stories and simply went on with our lives as if they had nothing to do with us and concerned only the various "others" living in strange and faraway places.

This emotional distance collapsed last week, with the publication of the photographs of prisoners in U.S. custody in Iraq. The first response was a wave of denunciation by commentators, politicians, and ordinary citizens alike, of the "torture" revealed by the photographs. To be sure, each of the pictures—worth far more than the standard 1,000 words—portrays disgusting, cruel, and altogether indefensible behavior on the part of Americans who should have known better. But was it "torture"? And why does it matter what we—or, more to the point, lawyers—call it?


illustration: Viktor Koen

Details

Special Report:
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    The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says that "the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person. . . . It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions . . . " (emphasis added).

    Any lawyer would immediately wonder what "severe" means in this context and whether the U.N. convention doesn't have the paradoxical result of licensing "non-severe" pain or suffering. And, incidentally, must the "pain" be physical, or does a humiliating assault on one's dignity by being stripped naked count? Interestingly enough, though the title of the U.N. convention indicates that "cruel, inhuman, or degrading" acts are also forbidden, no definition is offered as to what they consist of.

    The U.N. convention also states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture" (emphasis added). This is as powerful a condemnation of torture as can be imagined. By the same token, though, it leaves open the argument that anything less than torture may be permissible during dire times.

    Here, as in so much else, what the U.N. says is scarcely the last word as far as the U.S. is concerned. The U.S. in fact ratified the torture convention in 1994, and it accepted the "no exceptional circumstances" clause quoted above. However, the Senate, as is its prerogative, noted that its "consent" was "subject" to acceptance of its own definition of "torture," which includes the following:

    " . . . the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality . . . "

    One scarcely needs to be a lawyer to understand the potential significance of the words I emphasize or to see why the Netherlands government formally protested that the U.S. definition of torture "appears to restrict the scope of the definition of torture" proffered by the U.N. convention.


    According to an April 2002 Wall Street Journalstory with the revealing headline "Interrogation School Tells Army Recruits How Grilling Works: 30 Techniques in 16 Weeks . . . ," army interrogators were taught to "do just about everything short of torture, which officials say is not taught here, to make their prisoners spill information that could save American lives." The article even noted that the army judge advocate general's corps "keeps a lawyer on hand during interrogations, for quick decisions on the degree of physical or mental pressure allowed." One of the "teachers" was quoted as saying, "What we can get away with depends on" the JAG officers. "One JAG officer might say it's a go, another might say it's torture."

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