So now let me go back and start my train of thought on “torture” from the beginning.
(Here are the OLC memos in question. I’ll be quoting them:
- Memorandum for John Rizzo, OLC, August 1, 2002
- Memorandum for John Rizzo, OLC, May 10, 2005 (first)
- Memorandum for John Rizzo, OLC, May 10, 2005 (second)
- Memorandum for John Rizzo, OLC, May 30, 2005
)
We ratified the United Nations Convention Against Torture. Pursuant to our obligations under CAT, we have a few Federal Laws that define and prohibit torture in different circumstances, the important one of which here are sections 2340-2340A, which apply to CIA agents performing interrogations outside the borders of the United States.
Both our own Federal statutes and CAT share similar definitions of what constitutes torture:
Section 2340(1) defines “torture” as “an act committed by a person acting under color of law, specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
And:
The CAT defines “torture” so as to require the intentional infliction of “severe pain or suffering, whether physical or mental.” Article 1(1) of the CAT provides:
For the purposes of this Convention, 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, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The Senate included the following understanding in its resolution of advice and consent to ratification of the CAT:
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 (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procdures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) 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.
With those restrictions in mind, after 9/11 the Bush administration came up with 10 methods of escalated interrogation which they felt did not rise to the legal definition of torture above:
- attention grasp
- walling
- facial hold
- facial slap
- cramped confinement
- wall standing
- stress positions
- sleep deprivation
- harmless insects placed in a confinement box (to exploit one detainee’s fear of insects)
- the waterboard
As described in detail in the memos, the circumstances under which any of these techniques could be used, with specifications as to the exact application (always under medical supervision and using specially designed equipment to prevent physical harm) are so mild in the context of the history of cruel treatment, that any bonafide torturer would wet himself with laughter at the hysterical debate they have provoked.
The waterboard is singled out in the memos as a technique that may potentially cross the line into torture if not applied according the restraints noted in the memos, and may only to be used in rare circumstances on high value detainees and only after additional authorization from the director of the CIA.
The memos then go on at great length to subject each of the techniques to the letter of the law and found that if performed faithfully according to mandated restraints (frequency, time limits, environmental and medical conditions, etc.) none of the above techniques amount to illegal torture.
Finally, in sharp contrast to those practices universally condemned as torture over the centuries, the techniques we consider here have been carefully evaluated to avoid causing severe pain or suffering to the detainees. As OMS has described these techniques as a group:
In all instances the general goal of these techniques is a psychological impact, and not some physical effect, with a spectfic goal of “dislocat[ing] [the detainee's] expectations regarding the treatment he believes he will receive….” The more physical techniques are delivered in a manner carefully limited to avoid serious pain. The slaps, for example, are designed “to induce shock, surprise, and/or humiliation” and “not to inflict physical pain that is severe or lasting.”
Of course, whether or not one wants to call these techniques torture is purely a matter of subjective opinion, and legality does not address the moral issues therein. The big problem, as I see it, in our debate over these techniques is the careless and/or willfull conflation by the so-called “anti-torture” advocates of morality and legality, which has led to calls for criminal investigation of the lawyers who wrote the memos which ostensibly intended to prevent our government from committing illegal torture.
There is much speculation on the left that the memos were actually part of a conspiracy to commit illegal torture, but I have yet to see any in depth discussion of this. If true, this would be worrying, but what I have yet to see is any arguments equal in detail or measure to these memos as to why any of the 10 techniques discussed therein do amount to illegal torture.
President Obama doesn’t seem concerned with any such arguments, settling instead for his own superficial announcement that “we don’t torture” and the all of these techniques will no longer be used. This is terribly disingenuous for a such a puported thoughtful politician.
If a President is going to accuse a previous administration of “torture,” I think he is at least obligated to produce a coherent and logical argument supporting this statement. Does the Obama Administration have a definition of torture in mind? Do they really think that a stinging open palm slap on the cheek is torture? Or flicking droplets of water in the face of a detainee (a technique that I playfully subject my own children to on occasion, and the inclusion of which in the memos’ discussion of water-based techniques reflects such a profound aversion on our part to real torture that it should close the case by itself)?
The fact is, this has never been a serious discussion of whether or not our country should engage in torture. It’s been a partisan attack by Democrats against an administration dealing with cumbersome new issues of national defense. the word “torture” has been so abused in the process, that some have suggested that the infliction of any discomforts, from loud noises to tasers, as tantamount to torture and crime against humanity punishable as War Crimes.
If, indeed, by some miracle of coincidence aligning partisan hackery and reality, there was some kind of cover-up by the Bush administration to conceal a program of real and vile torture, there should be prosecutions in line that evidence. But until evidence of a real program of torture is revealed, or someone can bother to rebut the arguments of the OLC memos rather than simply try to impugn their origins, this stands as one of the most tasteless (and potentially harmful) exercises in official demogoguery we have seen.
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