Wednesday, November 23, 2005

What is Torture? 

Over the past two days Jeff Goldstein has been hosting some very meaningful discussions on torture and interrogation techniques. So much of the discussion, however, basically breaks down to "this is torture - no, this is real torture." It seems, though, that no one has taken the time to actually look it up:
18 USC 2340. Definitions
As used in this chapter -;
  1. "torture" means an act committed by a person acting under the 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;
  2. "severe mental pain or suffering" means the 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 procedures 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; and
  3. "United States" includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.
While that certainly helps in legally defining "torture", it does seem to leave open the question of what constitutes "severe physical pain or suffering." This was one of the key motivations that prompted the Administration to ask its lawyers to research torture and draft the now infamous "Torture Memo." If one is sincerely interested in understanding the legal definitions and ramifications of torture rather than just having a paper political punching bag this memo can actually be quite helpful. I wrote on this before (June 10, 2004), but will, in the interest of clarification, go over two key points in the memo.

First, the memo addresses that 18 USC 2340 requires "specific intent" in order to constitute torture. Likewise, while Article 1 of the Geneva Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits "... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ..." the United States' ratification of this convention in 1994 included the reservation and understanding that "... in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering ..." This distinction of "specific intent" has real importance in determining if an act is or is not torture, since there is a legal difference between specific intent and general intent. If an individual performs acts with reasonable knowledge that they will inflict "severe physical or mental pain or suffering" and thereby violate the statute it demonstrates specific intent and, therefore, is torture. However, if an individual performs acts that he sincerely and reasonably does not believe will inflict "severe physical or mental pain or suffering" but such results do happen it demonstrates only general intent and, while they may still be subject to other criminal statues (e.g. assault, battery, homicide, etc.), it does not constitute torture. For example, if you beat a man and break his legs it is torture (such acts will obviously produce severe and permanent physical pain), however, if you are yelling at and stressing a subject and they have a heart attack and die it is not torture (there was no specific intent to kill).

To complete our definition, however, we must achieve an understanding as to what "severe physical or mental pain or suffering" really means. As noted in the memo, by applying the adjective severe to physical suffering the law seems to contradict the position expressed by Cathy Young that "any interrogation techniques that rely on physical suffering are torture," since there is certainly a difference between "any" suffering and "severe" suffering. Since the law, however, declines to define "severe physical suffering" we must look to other sources in order to determine the basis for this difference. In defining "severe," various dictionaries include terms such as:Additional guidance on understanding "severe physical suffering" may be obtained from 18 USC 113. Assaults within maritime and territorial jurisdiction, which defines "substantial bodily injury" as a temporary but substantial disfigurement or impairment/loss of function and "serious bodily injury" (by way of 18 USC 1365) as including a protracted disfigurement/impairment/loss of function, extreme physical pain or substantial risk of death. Can one reasonably believe that physical suffering "severe" enough to constitute torture is significantly less than that constituting substantial or serious bodily injury in matters of assault or tampering with consumer products? I would say, rather, that these legal standards may provide a minimum basis upon which the possibility of torture may be established.

The law, however, is much clearer when it comes to defining "severe mental suffering." One immediately sees that in order to be considered such the damage done must be "prolonged," or in other words continuing over time. While persistent conditions such as PTSD, clinical depression and other neuroses and psychoses may certainly be evidence of torture it is clear that the temporary mental stress associated with interrogation or even humiliation does not meet this standard. Additionally, the prolonged condition must have resulted from a limited number of specific acts. If, for example, a subject goes "stir crazy" and develops a mental disorder from confinement or intense interrogation that does not include the prohibited acts it cannot legally be considered torture.

Some may say "but that's just legalese and looking for a loophole," but, as Americans, we pride ourselves on being a nation of law, an impartial law that in theory treats all citizens equally. As such it seems to me that any discussion of legal and criminal matters must start with a clear understanding of what the law actually is and not what any random person feels the law should be. Since our interrogators in the GWOT have always been subject to this law I think the McCain Amendment was largely political preening. After all, if this statute is not sufficient then change it or clarify it.

NOTE: I have intentionally not touched on the third point of the memo, that the Constitutional separation of powers may create circumstances whereby specific conduct that would otherwise be criminal would actually not be unlawful. While this is an important Constitutional issue that has largely been ignored in the political bluster it does not have bearing on the definition and understanding of what actually constitutes torture.

Update: Thanks prof, I invite all visitors to stay a while and look about.

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