Torture is Torture

Posted by on May 9th, 2009 and filed under Opinion. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry


MAINSTREAM U.S. journalists and political pundits greet President Obama’s first 100 days in office with a tacit agreement that he is moving forward to address and suppress a crippling U.S. economy and restore America’s moral standing with the international community.  Now that the president has decided to de-classify legal secret legal memos that high-level Bush Administration lawyers approved in late 2002, authorizing C.I.A. interrogators to engage in conduct that may or may not constitute torture, many are now offering polarizing positions on the subject of torture, with some on the right lane of the political spectrum, including former vice-president Dick Cheney, asserting that the release of state secrets will compromise national security and pave the way for legal prosecution of Bush-appointed lawyers and C.I.A. interrogators, while others on the left lane praise his efforts to reveal past abuses of presidential power and applaud the future prospect of legal prosecutions.   In point of fact, president Obama had no choice but to release them:  the American Civil Liberties Union filed a lawsuit under the Freedom of Information Act.  The White House thus had a weak case for withholding them.

 Read all the major newspaper and web publications on the subject and you learn there is actually a “debate” about the definition of torture.   Torture is torture; there is no way around it.   

 George W. Bush constantly asserted during his presidency that the U.S. “do not do torture”.  He was justified in saying so – but only because his lawyers re-interpreted and therefore re-defined the meaning of torture. 

 Simply put in “legalese”, Bush-appointed lawyers have determined that acts meted out by C.I.A. interrogators through various “enhanced” interrogation techniques “falls short” of “the” definition of torture.  But if you ask ordinary people they tell you that torture is torture; there is no abstract definition.      

 An article in the New York Times last Sunday addressed potential linguistic “mine-fields” mainstream journalists face when educating its audiences about the subject of torture, with some journalists, after consulting with legal experts, preferring to use the word “enhanced” rather than “harsh” or “brutal” when describing the interrogation techniques in detail.  One reader wrote to the New York Times saying this:  “Please find more backbone and fulfill your journalistic responsibilities by describing these immoral and illegal practices for what they were”.  The New York Times reported in detail how the Central Intelligence Agency was allowed to strip “high-level” detainees naked, bash them against walls, keep them awake for up to 11 straight days (italics mine), sometimes with their arms chained to the ceiling, confine them in dark boxes and make them feel as if they were drowning.

 In point of fact there is a search for a legal definition of torture.  Controversial political questions such as torture are inevitably played out in U.S. courts.  U.S. domestic law determines what is and isn’t torture.

In 1994 the U.S. Congress ratified federal anti-torture statute (18 U.S.C. §2340A) in compliance with international human rights law, specifically the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or CAT.  Article 1 (1) of CAT defines torture as “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…information or a confession”.  In tandem, the federal anti-torture statute closely follows CAT’s definition and defines torture as “an act committed by a person under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody of physical control”. 

 I have had a chance to read a recently de-classified memorandum of law written by Jay S. Bybee, then Assistant Attorney General for the Office of Legal Counsel in the U.S. Justice Department from late 2001 to early 2003.  With guidance from George W. Bush, Mr. Bybee is now a federal judge on the U.S. Court of Appeals for the Ninth Circuit.  The Central Intelligence Agency requested legal advice on detainee interrogation; the Bybee’s memo is a response to that request.  At issue is whether C.I.A. interrogators, by utilizing “enhanced” interrogation techniques -including water-boarding – is in violation of the federal anti-torture statute (18 U.S.C. §2340A).  His conclusion:  none of the ten “enhanced” interrogation techniques – including water-boarding – violate U.S. federal anti-torture statute.  

 Any act warranted to meet the definition of torture under U.S. domestic law must satisfy all five elements situated within the federal anti-torture statute:  (1) the torture occurred outside the U.S. (2) the defendant acted under the color of law (3) the victim was within the defendant’s custody or control (4) the defendant specifically intended to inflict severe pain or suffering (5) that the act inflicted severe pain or suffering.  The Bybee memo tells us that the elements (1), (2), and (3) are clearly satisfied without doubt, but elements (4) and (5) are not so clear.  The memo was specifically written to address elements (4) and (5) by squaring them with facts supplied by the C.I.A., the most unequivocal of which is the fact that a C.I.A. interrogator attempts to gain valuable intelligence from a detainee with a mental health expert present (usually a psychiatrist) in the event that such procedures need to be discontinued.   These facts presented by the C.I.A., Mr. Bybee concluded, do not violate element (4) as contained in the statute:  those carrying out the interrogation techniques would not have the specific intent to inflict severe physical pain or suffering.  His reasoning:  there is a constant presence of medical training personnel during interrogation sessions.  But the memo goes on to say that medical personnel, who has the authority to stop the interrogation, “indicates that it is not your [the C.I.A.] intent to cause severe physical pain”. 

 Other facts presented by the C.I.A. that informs Mr. Bybee’s legal conclusion tells us that “these acts will not be used with substantial, repetition, so that there is no possibility that sever physical pain could arise from such repetition”.  These facts, however, do not square with definitive news reports that Khalid Sheikh Mohammad was water-boarded 183 times and Abu Zubaydah 83 times.  A New York Times report tells us that two captured detainees were water-boarded a total of 266 times!  Mr. Bybee tells us that water-boarding “constitutes a threat of imminent death” but does not produce “prolonged mental harm” and that “you [the C.I.A.] do not anticipate that any prolonged mental harm would result from the use of the water-board”.  However, Mr. Bybee has written that when “these acts are considered as a course of conduct, (italics mine) we are unsure whether these acts may constitute a threat of severe physical pain or suffering”.  At present, we do not know how many times in succession and for how long, C.I.A. interrogators subject a particular detainee to water-boarding in a given day.  Conservative news reports tell us that the person undergoing water-boarding “feels” he is drowning but is not “actually” drowning and that no water is entering the person’s lungs.  The truth is that the person “is” drowning until the wet cloth is removed.    

 Critics point to Mr. Bybee’s legal reasoning, where he argues that the phrase “pain and suffering” within the language of the federal anti-torture statute “is best understood as a single concept”; therefore the water-board technique, which in his view inflicts no physical harm, does not inflict “severe [mental] suffering” in the long run.   You accidentally stub your little toe on a chair and some seconds later you feel an excruciating, sharp pain that lasts for about a minute and the mental suffering subsides.   In contrast, subjects who undergo repeated episodes of water-boarding face an increased probability of suffering significant mental harm.   Although the memo declares that subjects who are water-boarded will experience “imminent death” through violent physiological episodes but no lasting psychological effects, critics dispute the claim that subjects will not suffer emotionally in the long run.   Nina Thomas, adjunct clinical associate professor of New York University’s postdoctoral program in psychotherapy and psychoanalysis, tells us that interrogation techniques like those used by the C.I.A. undoubtedly create lasting psychological effects, such as paranoia, anxiety, hyper-vigilance and “the destruction of people’s personalities”.     


This Friday the Pentagon is set to release hundreds of photographs from investigations into detainee abuse, with Defense Secretary Robert Gates raising concern that publicizing details of U.S. interrogation practices could cause a backlash against U.S. troops in Iraq and Afghanistan.   Once again, the American Civil Liberties Union is on the case; it has spent years suing the U.S. government for release of the photos, arguing that some photographs indeed show cases of detainee abuse.   The courts have ruled twice in A.C.L.U.’s favor.

 While the memo showed a masterful synthesis of facts and “legalese”, it significance pales in comparison with “on the ground” episodes of detainee abuse at Guantanamo Bay and at global “rendition” prison sites , with some military officials straying far from detainee policies.  Further, human rights activists, including Muslims themselves, must put pressure on the Obama administration to prosecute Bush administration lawyers, among them Mr. Bybee, who authorized the use of torture techniques through faulty legal reasoning.  

 The writer is a recent revert to Islam and can be contacted at: 

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