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Torture By Any Other Name…

February 24, 2010

The way to torture and get away with it, we learn in the section of the OPR report titled “Drafting the Bybee Memo,” is to simply define that word so as to exclude the types of things you will be doing.

This is, admittedly, no easy feat, as most of the practices proposed by CIA psychologists would — on the common sense view of things, at least — quite obviously count as torture. Examples of these practices include sleep deprivation (“the subject is prevented from sleeping, not to exceed 11 days at a time”); the use of diapers (“the subject is forced to wear adult diapers and is denied access to toilet facilities for an extended period, in order to humiliate him”); and, of course, waterboarding (p. 36). It is as though the CIA were asking Bush administration lawyers to redefine pornography so as to exclude Hustler magazine.

Here’s the story. In the spring of 2002, the CIA contacted the Department of Justice seeking “criminal declination in advance of the interrogation” of Abu Zubaydah due to concerns that “criminal laws, in particular the torture statute” might apply to its use of enhanced interrogation techniques (p. 37). At this point, John Yoo and a second party, unidentified in the OPR report, were assigned to research the statute and begin drafting a memo.

The Bybee Memo, as it came to be known, took the position that the statute’s definition of torture “applied only to extreme conduct, and that lesser conduct, which might constitute ‘cruel, inhuman, or degrading’ treatment, did not rise to the level of torture” — a point emphasized more strongly with each successive draft (p. 43). In the first draft Yoo’s partner defined “severe pain” — which the statute forbade — as “intense and difficult to endure” (p. 44). In a later draft, Yoo added that, where the serious pain is physical, “it is likely to be accompanied by serious physical injury, such as damage to one’s organs or broken bones” (p. 44). Yoo later toyed with the phrase “acts of an extreme, life threatening nature,” though it was ultimately rejected (p. 45).

Yoo’s partner wrote back expressing concern that his definition suggested that, “the bar is perhaps higher than it is for mental pain or suffering” (p. 45). No need to worry about that, however. The statute’s definition of torture was as materialistic as that of Yoo and his partner:

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from –

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death: or

(D) 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 sense or personality.

The Bybee Memo did not fall very fall from the tree. Mental suffering is, according to the statute’s definition, a direct response to physical suffering: it is “caused by or resulting from” A, B, C, and D — all of which involve either direct physical harm or the “imminent threat” of direct physical harm. The reason for the statute’s materialistic bias is, I think, obvious: psychological pain is subjective, and therefore impossible to dispute one way or the other.

The legal debate over enhanced interrogation techniques, in short, comes down to the meaning one small word: severe. If psychological pain is not, of itself, torture, nor is “physical pain or suffering,” which might include trivial things like mild hunger or a slap on the wrist. What the statute requires is severe physical pain, or the “imminent threat” of such pain, and the mental anguish it brings. What, exactly, that word — severe — means was, of course, for Yoo to decide.

It was up to Yoo.

Legal wrangling aside, we can ask whether the “cruel, inhuman, or degrading treatment” of detainees — a description that sleep deprivation, the use of diapers, and waterboarding all answer to — should be tolerated by any free society. These practices may not meet the statute’s definition of torture. But that doesn’t mean they are not torture, or that the word “torture” somehow demarcates the line between what is morally permissible and what is not.

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