Brutal Logic

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

It is a grim reality that a well-trained JAG lawyer, asked only if what is being done (or contemplated) meets the legal definition of torture (as distinguished from being morally questionable or even "inhuman or degrading"), might have to say it doesn't, at least if he or she is referring to the Senate's definition. How "imminent" is the threat, how "severe" the pain, how "prolonged" the suffering? That the proposed conduct might strike our hypothetical lawyer as "cruel" or "immoral" can be all too irrelevant if the question asked is, "Does this count as torture?" In an 1825 opinion concerning slavery, Chief Justice John Marshall, who had no trouble recognizing the evil of slavery, nonetheless distinguished the task of the "jurist" (or lawyer) from that of the "moralist," and that distinction remains central to most lawyers' self-concept today.

The Senate also tellingly modified the part of the U.N. convention that prevented sending "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture" (emphasis added). According to the Senate, "the United States understands" the emphasized phrase as meaning only "if it is more likely than not that he would be tortured" (emphasis added). This change has no doubt enabled highly educated and professional government lawyers to justify the American "rendering"—that is, sending—of prisoners, as reported in 2003, to such countries as Egypt, Morocco, and Jordan, by adopting the self-serving skeptical posture that the U.S. does not really know whether it's "more likely than not," as distinguished from "possible," that the prisoners will be tortured.


illustration: Viktor Koen

Details

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    The only thing new about recent revelations is the pictures. For example, on December 26, 2002, The Washington Post published an extensive report on the appalling treatment of prisoners and detainees in Afghanistan, including "rendering" to other countries. "We don't kick the [expletive] out of them," one anonymous U.S. official was quoted as saying. "We send them to other countries so they can kick the [expletive] out of them." Similar stories appeared in such outlets as The New York Timesand The Economist. None appears to have had the slightest impact. The Economist in January 2003 described the American discussion of allegations of torture as "desultory," and nothing that happened before last week would have merited a different adjective.

    Why, then, should we feign shock that inexperienced, frightened, and foolish—it is almost pointless to view them as "evil"—young soldiers would have had little or no understanding of what the limits were on what they could do? They have received not the slightest trace of genuine leadership on this issue.

    The blame goes far beyond the Bush administration. Congress has made no attempt to specify the kinds of interrogation practices that we are willing to accept being done in our name. No outcry was heard when Senator John D. Rockefeller IV, the ranking Democrat on the Senate Intelligence Committee, was quoted as saying that he "wouldn't rule . . . out" turning over a captured high-ranking member of Al Qaeda to a country with no compunctions about torture. "I wouldn't take anything off the table where he is concerned," said Rockefeller, "because this is the man who has killed hundreds and hundreds of Americans over the last 10 years." Rockefeller either was completely ignorant that, or, more likely, just did not care that this suggestion clearly violated the U.N. convention that the Senate had ratified, no doubt with his support.

    Legal sociologists for over a century have distinguished between "law on the books" and "law in action." American "law on the books" regarding torture is murky, inviting abstruse legalistic distinctions. Even clearly stated law might not have been enough to overcome the pressures of the situation; it is probably overdetermined that the "law in action" approaches what many people might simply describe as "lawlessness." But no one should think that the events in Iraq touch only on the military command structure. Many lawyers—on Capitol Hill as well as in the executive branch—have a lot of explaining to do.


    Sanford Levinson is professor of law at the University of Texas Law School. He is the editor of Torture: A Collection , forthcoming from Oxford University Press.

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