I discussed the reopening of the debate about torture and the larger implications of our loss of the consensus that torture is wrong. I speculated:
From here it can go in two directions — either the Dubya Squad will become more brazen about torture as the public adopts a “what’s the big deal” attitude and the nominal opposition decides it’s not an issue that polls well… or the Dubya Squad will be forced to tighten up its secrecy and hypocrisy in the face of public revulsion and opposition protest…
Well, I sure pegged that one right. While I was composing my screed, the U.S. Department of Justice was releasing a brand new torture memo.
Which direction is the Dubya Squad trying to push with this new memo — the brazen or the hypocritical? normalizing torture or keeping it hidden?
The first thing to notice is the timing of the memo’s release to the public — on . Clearly the Dubya Squad didn’t want to make much of a splash. To the extent that they’ve tried to word the memo in such a way that it suggests a spin to the news media, that spin is this: The Bush administration has backed down from an memo that claimed the only acts prohibited by anti-torture laws are those that cause “excruciating and agonizing” pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
So at first glance, this appears to be good news. Given my “brazen” vs. “hypocritical” dichotomy from yesterday, the Dubya Squad has chosen the latter, which, under the circumstances, seems like a good thing. The new memo does in fact:
- repudiate the conclusion from the memo that “severe pain” to meet the threshold prohibited by the anti-torture laws and treaties “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
- back down from the conclusion that in order to be prohibited, mental pain and suffering must be additionally shown to be “prolonged mental harm” that must be “of significant duration, e.g., lasting for months or even years” and suggests for instance that post-traumatic stress disorder might qualify as such harm
- back down from the conclusion that to be considered torture, the “precise objective” of an act must be to cause a prohibited level of pain (rather than the pain being the foreseeable by-product of some technique intended for some other purpose) — “We do not believe it is useful to try to define the precise meaning of ‘specific intent’… In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”
The memo is still an ugly one, and a humane person will cringe while reading its extensive splitting of hairs about what distinguishes “severe” from “excruciating and agonizing” pain, for instance.
Its perspective remains “how much abuse can the administration get away with inflicting under the law” as opposed to “how much abuse can the Department of Justice prevent or prosecute by using the law.” You won’t see any Department of Justice memos that interpret anti-terrorism laws from the point-of-view of someone trying to figure out how much terrorism they can commit before running afoul of the law. Such memos would all be written from the perspective of trying to figure out just how much terrorism-related activity they can plausibly investigate and prosecute under anti-terrorism statutes. If the Dubya Squad actually opposed torture, this is how their Justice Department would approach the anti-torture laws.
The tone of the exercise is a sort of grudging admission that U.S. law does in fact prohibit torture followed by an attempt to find that lowest permissible point of brutality below which nobody may legally go. If there is another memo that says “whatever this maximum permissible brutality level may be, the United States has and will enforce an expectation of behavior that is far more humane” I am not aware of it.
The memo is also pretty narrow in scope. It really only deals with interpreting the law that Congress passed as its attempt to get the U.S. into compliance with the United Nations Convention Against Torture. Other aspects of the earlier controversial memos and directives are not addressed. Perhaps this is just the first of a number of new memos, but it leaves unanswered, for instance, questions about the Dubya Squad’s current position on the expansive “Commander-in-Chief override” that theoretically gives the president authority to ignore all laws and treaties in the course of his war-making authority. Also, a footnote mentions in passing that the anti-torture law under discussion “applies only to conduct occurring ‘outside the United States’ ” and nowhere does the memo try to resolve the Dubya Squad’s schizophrenic position on the status of Gitmo in this regard.
Interrogators torture in an attempt to cause sufficient anguish to a captive that the captive will betray friends and causes, confess secrets, and/or perform other acts that the captive would not do except in an attempt to end the suffering.
It is possible that a captive will do such things voluntarily, or through friendly persuasion or argument, or in order to be released from captivity or in exchange for money or certain privileges. If such things do not do the trick, a captor can choose to give up the attempt gracefully if reluctantly, or may choose to start on the road to torture — trying to make the conditions of captivity increasingly intolerable until they pass the threshold of resistance.
The Dubya Squad is trying to preserve their ability to cause enough anguish to overcome the most resistant captive without having to call what they are doing “torture” — as if “torture” could be best defined by something other than the level of anguish it causes. It is like trying to define murder without referring to the death of the victim — which could be convenient if you’re trying to find some way to make a victim die without wanting to be accused of murdering him.
