The torture debate

There has been no shortage of confusion, follow-up questioning, even sheer surprise at the series of Bush administration memos released in April by the Department of Justice. The "torture memos" are legal opinions, requested by the Central Intelligence Agency, about methods the agency wanted to use – and did use, even before the legal opinions were issued – to interrogate terrorism suspects in its custody.

The argument the memos have fueled produces equal heat from all reaches of the political spectrum. Those who sympathize with the memos say they show that extreme measures are necessary to extract information from reluctant captives – and that those measures, particularly in a post-9/11 world – are perfectly within the law. Opponents of the Bush policies say the memos are lazy legal opinions, issued to support a premeditated conclusion and serve the political whim of the Bush administration.

And those are the most nuanced arguments.

Why do we struggle so mightily to parse torture – to define and redefine what was formally outlawed in the United Nations Convention Against Torture that 146 nations, including the US, ratified?

Like so many controversial topics, the torture memos have become the punch line of partisan punditry. At the end of April, conservative Fox News personality Sean Hannity volunteered to be waterboarded for charity; his liberal counterpart, Keith Olbermann, promised on MSNBC to donate $1,000 for every second Mr. Hannity lasted. 

Like the debate they fuel, Hannity and Mr. Olbermann miss the point. Torture isn't about how long one volunteer lasts on the waterboard. Torture is, in fact, the opposite: It's about the helplessness of the person strapped to the waterboard.

"The absence of control, the absence of any kind of ... mutual agreement about what is respected ... all of that is stripped away," says Uwe Jacobs, the clinical director of Survivors International, an outreach organization for torture survivors living in the US. "It's the same thing you see in rape. What is it, precisely, that makes rape in many cases so traumatic for people? It's not the physical pain they experience.... It is the total invasion of a space that has to remain private."

UNTIL THE 9/11 ATTACKS, no one would have thought it controversial to call waterboarding "torture," Mr. Jacobs and others say. Historians, sociologists, and political scientists have written libraries about the characteristics of torture – the powerlessness of the tortured and the absolute power of the torturer; the firm – at times, religiously sanctioned – belief in the utility of pain to extract truth.

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.

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."

He notes that even though doctors and others monitor the subject, their presence doesn't lessen the fear because "the subject is not aware of any of these precautions." And yet: "Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering." More plainly, the imminent death threat is secondary.

The primary issue is the bigger picture: Does a practice result in "severe mental harm," and does that mental harm last? If the answer is no, Bybee asserts, then – even if it's waterboarding, and even if we all agree that the body thinks it's going to die – it doesn't count as torture.

Bybee concludes that there's no long-lasting mental harm from waterboarding because the US military waterboards its service men and women during high-intensity Survival, Evasion, Resistance and Escape (SERE) training, designed to toughen them against techniques they might experience at the hands of an enemy. The CIA informed Bybee that no SERE students suffered lasting psychological effects. Only two dropped out, and only "on rare occasions some students temporarily postponed the remainder of their training and received psychological counseling." In other words, if US soldiers can handle the waterboard, so can Al Qaeda suspects.

EVEN IF ALL AMERICANS AGREED with the policy conclusions of these memos, the authors' ethics are in question. The Justice Department is expected to release this month findings of a year-long review into whether three memo authors violated professional ethics. Such a breach is clear, says Scott Horton, a visiting professor of law at Hofstra University in Hempstead, N.Y., and a lecturer at Columbia University's law school. "It would take roughly 20 minutes using legal search databases to identify a long series of cases ... dealing with waterboarding, in which courts looked at its practice and made conclusions about its legality. Every single one ... say[s] it's a crime." Not one, he notes, is mentioned in the memos.

What was disclosed in a 2005 memo by Stephen Bradbury, Bush's principal deputy assistant attorney general, was concern about the Constitution's preclusion of punishments that "shock the conscience." He notes that there is "significant evidence that the use of enhanced interrogation techniques might 'shock the conscience' in at least some contexts." He acknowledges that the State Department's definition of torture seemed at odds with the Justice Department's. In State's annual human rights reports, it objected to torture techniques – including some described in the memos – used in Egypt, Syria, Indonesia, and Iran.

But Mr. Bradbury says the constitutional standard is "highly context-specific." In this context, when the techniques are used to pursue intelligence "to protect against grave terrorist threats," he writes, the CIA is in the clear. The countries of concern to the State Department, he argues, used techniques "that go far beyond" the CIA's. Furthermore, those countries use torture for different reasons, and the CIA tries to "minimize the risk of suffering or injury and to avoid inflicting any serious or lasting physical or psychological harm." His logic: The CIA's ends are justified, just as its means are judicious.

SWIRLING AROUND THE MEMOS' FINDINGS are inflamed disagreements about whether torture works – indeed, whether the possibility of a ticking time bomb is enough to outweigh our otherwise universal moral hesitation. Politics aside, no reasonable person likes torture. No such person believes that beating the soles of someone's feet, or hanging someone by their wrists, or pulling off someone's fingernails, is anything but reprehensible. It's probable that these are the gruesome practices President Bush had in mind when he insisted, "We don't torture."

The fact that Americans disagree on that may not be a promising sign.

In his 1946 essay "Politics and the English Language," George Orwell wrote, "[P]olitical speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan can indeed be defended, but only by arguments which are too brutal for most people to face."

Professor Horton says, "You could just add to the list of examples, 'enhanced interrogation techniques' for torture. 'Enhanced' – stronger! Better! Brighter! – who could object to that? Language is a weapon that's used by the administration in their campaign for support for what they're doing."

So have we just been duping ourselves? If so, and we're willing to ask why we perpetuate – by another name – practices we'd have decried as torture years ago, what could we say? That this is how it always happens, according to Professor Rejali.

Two years ago, he published "Torture and Democracy," a history of modern torture. "Every time a country engages in these techniques," he says, they reevaluate the definition of torture. "When France used their techniques, all of a sudden they were 'pushed interrogation.' The Germans called it 'sharpened interrogation.' " So what does our use of, and argument over, "enhanced interrogation" mean?

"Our debate," Rejali says, "is no different than [that in] any other country."