The torture debate
Why does the line between coercion and torture seem so shadowy now?
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Although not all of its signatories have stood by their pledge, the Convention Against Torture is a mark of, if nothing else, international semantic consensus.Skip to next paragraph
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Before the Bush administration's pursuit of "enhanced interrogation," the definition of torture was clear, says Darius Rejali, a political science professor at Reed College, in Portland, Ore. "Everybody understood it.... There has never been a debate over the meaning of torture in the international sense."
So why the need for these memos? The CIA felt compelled to ask for the Justice Department's opinion on whether its methods violated national laws prohibiting torture. Long-winded and detached, the memos are the quintessence of legal writing. And yet they're worth a read, if for no other reason than that a layman's standard is sometimes so different from a lawyer's.
What would the average American make of these 100-something pages? In some cases, nothing at all. Two of the milder techniques outlined by Bush Justice lawyer Jay Bybee's August 2002 memo are the "facial slap" and the "facial hold." Setting aside the legal standard, neither seems tough enough to call torture. After all, mothers have been known to command a child's attention this way.
But other techniques raise the average reader's eyebrow. The effects of sleep deprivation, Mr. Bybee writes, get worse the longer it's used. Cramped confinement requires careful logistics to be practiced "humanely." Stress positions, which induce muscle fatigue and ankle and foot swelling, are also dubious. Waterboarding demands particular attention.
All these techniques must pass a litmus test set by US law: They can't be "intended to inflict severe physical or mental pain or suffering," otherwise they're torture. The memos easily parse the physical. None of the pain these methods inflict, Bybee concludes, legally counts.
On cramped confinement, he concludes: "[A]lthough confinement boxes (both small and large) are physically uncomfortable because their size restricts movement ... we do not think that the use of these boxes can be said to cause pain that is of the intensity associated with serious physical injury." It hurts – but it doesn't hurt badly enough.
On sleep deprivation: "While [it] may involve some physical discomfort, such as the fatigue or the discomfort experienced in the difficulty of keeping one's eyes open, those effects remit after the individual is permitted to sleep." Once they let you close your eyes, it's as if the sleep deprivation were, say, just a bad dream.
On waterboarding: "You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain."
But mental harm is murkier. Bybee argues something is torture only if it produces "prolonged" mental harm, and only if it meets conditions set by that US law. One of those conditions is that an act implies "the threat of imminent death." There is, Bybee concedes, no getting around this one: "We find that the use of the waterboard constitutes a threat of imminent death.... [I]t creates in the subject the uncontrollable physiological sensation that the subject is drowning."