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Patrick Philbin, Deconstructionist

February 26, 2010

From the OPR Report:

[Patrick] Philbin told OPR he told Yoo that he “did not like the use of the medical benefits statute for construing ‘severe pain’” . . . He said he thought the clinical terminology of the statute was “imprudent to use in this context,” and that it did not provide “useful, concrete guidance concerning what amounts to ‘severe pain,’” . . . Philbin said this was a practical concern and turned on the fact that there is no readily identifiable level of pain that preceded medical events such as organ failure (p. 57).

Both the statute and the Bybee Memo define “severe mental pain and suffering” in direct relation to physical pain and suffering. Mental pain is, according to the statute, necessarily “caused by or resulting from” physical pain (p. 1). Hence, for Yoo and his partner, “cruel, inhuman, and degrading” treatment — which pertains to the mind, rather than the body — does not “rise to the level of torture” (p. 43). In the passage quoted above, however, Philbin unwittingly deconstructs this mind/body dualism with the observation there is “no readily identifiable level of pain” preceding organ failure. For, if Philbin is correct, it follows that physical pain is as subjective as mental pain, and that both are irrelevant to defining torture.

Here is the dilemma that neither the statute nor its interpreters can resolve. If torture has a subjective aspect, the CIA loses its ability to discount reports of “severe pain” by detainees: torture might conceivably mean anything detainees say it means. To avoid this trap, Yoo and his partners must dehumanize detainees by defining torture as entirely a matter of physical processes (i.e. determining whether or not actions X, Y, or Z will always and everywhere cause organ failure or other lasting harm). Yet if subjective pain is irrelevant to determining what counts as torture, there is no obvious reason to prohibit torture in the first place. As a mere disruption of the bodily integrity of a “non person,” torture can be no more offensive than the felling of a tree or swatting of a fly.

Torture is, on the contrary, morally offensive precisely because of the subjective pain it inflicts. It follows that there can be no singular definition of torture that will objectively indicate in all cases whether or not an act counts as torture. It is, however, possible to define torture in such a way as to render the concept entirely meaningless. By excluding subjective pain, that is precisely what the Bush administration lawyers — building on the fundamental incoherence of the statute itself — did.

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