Thursday, June 10, 2004

A Postured Response to Serious Questions 

The critics smell blood. A headline only need mention the words "torture" and "memo" together and a natural Pavlovian response can be relied upon. Throughout news sites and blogs, statements that range from the simplistic "no wonder Abu-Ghraib happened" to the jejune and bias-informed "Bush authorized torture!" have begun taking root and sprouting with such vitality that any self-respecting dandelion would be envious. In reading them, however, I can’t help but wonder if they actually read the source document. Now, I’m not a lawyer (as if that really needs saying), but to me this document reads more like a critical analysis of legal issues than a recommendation or policy paper. There are several points in the paper, but chief among these seem to be the concept a difference between "specific intent" and "general intent", an examinations of what does and does not meet definition of torture and the effect the Constitutional separation of powers between the Executive and Legislative branches may have in the applicability of Federal statutes in this matter.

While in normal daily life we do not regularly make a distinction, in the eyes of the law the difference between "specific" and "general" intent can, quite literally, be life and death. An example cited in the memo illustrates the legal difference between a person who kills another with the "specific intent" of killing them (i.e. the death was the goal of the action) and a person killing another as a result of activities that should have reasonably been known to result in death but when that death is not the actual goal of the activities ("I knew he was in the building, but I set it on fire anyway because I wanted the fire insurance money"), known legally as "general intent". This is important because federal law prohibiting torture (18 USC 2340) defines torture as being manifested by "specific [intent] to inflict [pain and suffering] ". There is, therefore, legal basis to present a defense on the basis that one’s goal was not the pain and suffering but rather the extraction of information. As such, while there may have been "general intent" to cause harm to teh detainee, there was no "specific intent" and therefore, legally, no torture. I don’t know the impact on other potentially applicable laws (assault etc.), but this is a very interesting and important reading and the possible effects should be carefully studied.

Along with the question of intent, the memo addresses the specific terminology used in applicable statutes and looks to their definition. By law, "severe pain or suffering" must be inflicted to constitute physical torture. In light of the wording of the law, therefore, it is quite logical to conclude that regardless of the propriety of the acts much of what happened at Abu-Ghraib would not technically qualify as "physical torture". Likewise, the law requires "severe mental pain and suffering" to be evidenced by prolonged mental harm. In the examples in the memo, a differentiation is made between actions that impose stress, such as traditional police interrogation techniques, and acts that result in long-term or permanent mental disorder (PTSD, clinical depression, paranoia). Also the law enumerates only four specific actions that are prohibited, and, again, only if they result in prolonged mental harm: the application or threat of severe physical pain and suffering; application of drugs that "disrupt profoundly the senses or the personality"; threat of death, and; threats of the other three against another person. This, again, is a worthwhile study of the legal readings of the prohibitions against torture and could prove instrumental in determining if the text suffices.

The stickiest issue is the one that prompted the memo in the first place. As Commander-in-Chief, the President is changed by the Constitution with directing the Armed Forces in protecting nation security. In taday's environment, with even renown liberals such as Alan Dershowitz openly opining when torture may be justified, the Administration did the only prudent thing and asked for a review of the applicable laws and a reading of just where the line between interrogation ends and torture begins. In the course of this review, they concluded the law might not matter. This is because of issues that arise concerning Legislative Branch influence upon and limitation of the Executive Branch in the execution of its prescribed constitutional duties. Just as the President has no grounds to interfere in how the Congress executes its duties, Congress has no grounds, outside of those explicitly provided in the Constitution, to interfere in how the President executes his. This separation of powers is fundamental to the checks and balances in the Constitution and is the basis for the "executive privilege" we hear about and the exact reason the President and Vice President did not testify under oath before the 9/11 Commission. Bottom line: except as prescribed in the Constitution, the President does not answer to Congress, and rightfully so. In fact, it has been Supreme Court practice, when presented with cases where an act of Congress could be read to encroach upon another branch’s constitutional powers, to intentionally seek a reading that avoids such questions. The memo cited cases as recently as 1992 that explicitly demonstrated this canon. This has been especially true in the case of foreign affairs and war powers, including, interestingly enough, an 1862 ruling where the Supreme Court refused to question if the President had "appropriately responded to the rebellion", saying it was a matter "to be decided by him".

This is heady stuff, and emphasizes the grave importance in choosing a President one trusts to act honorably and with the best interest of the country at heart during times of dire emergency. These are, indeed, very important matters that need to be openly and candidly discussed. To instead find some all too willing to ignore the gravity of the questions by attempting to play political "gotcha" is supremely disappointing and tells more, I feel, about them than the ones who initially raised the questions.

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