Thursday, June 24, 2004

Imagine a legal document that limited the definition of torture to acts “by which severe pain and suffering” is caused. Under such a document, interrogation methods that produce mild or even moderate pain would not constitute torture.

Imagine another legal document that says psychological torture only occurs when a few specified interrogation techniques cause “severe” and “prolonged mental harm” that persists after the interrogation is over. Under this standard, sleep deprivation and other disorienting procedures may well not be torture.

These documents exist — but they are not the controversial memoranda written by Justice and Defense Department lawyers. No, these documents were written by the United Nations and by Congress. The first document is the Convention Against Torture, adopted by the U.N. General Assembly — hardly a shill for aggressive security measures taken by the United States. The second definition comes from the Torture Victim Protection Act, a law passed by Congress.

In the ill-informed hysteria that has followed reports of the administration memos, lawmakers and commentators have accused the administration of trying to use legalisms and technicalities to “justify” torture, in the words of Sen. Joseph Biden, or to “narrow” its definition, in the words of Sen. Dianne Feinstein.

However, as the documents cited above show, the administration’s lawyers were not trying to change the definition of torture — rather, they were trying to pin down what that slippery term means in the first place. “Torture” is not defined with any precision in international or U.S. law. There is no authoritative enumeration of the practices that constitute torture. All we know from the established definitions is that the term, while vague, is not all-encompassing.

The people actually charged with implementing executive policies — in this case, CIA and military officers — need more guidance than a buzzword like “torture.” When the governing law provides only vague legal standards, administration lawyers routinely are forced to fill in the blanks. This happens in antitrust, securities and many other legal fields. It inevitably entails line-drawing. When the president asks for such lines to be drawn, he is not looking for a way to “get away” with torture. Quite the opposite — he is trying to establish what torture is, so as to know what can be done that is not torture.

The assumption that seems to underlie the criticism of the memos is that anything other than the broadest conceivable definition of torture is unsatisfactory. But that view has no basis in existing law or common sense. Both the U.N. and congressional definitions agree that to amount to “torture,” practice must cause “severe” pain and suffering. Thus, obviously not all unpleasant or even aggressive treatment is torture. Surely slapping a detainee once, while it may be sometimes unjustifiable, would not rise to the level of “torture.”

Surely it would not be “torture” to afford to enemy combatants the same treatment we afford our own troops. Yet our own soldiers often work in conditions of extraordinary heat, discomfort and privation. They are subject to prolonged sleep deprivation or interference with sleep patterns; indeed, boot camp is an institutionalization of sleep deprivation. Many civilians would consider the life of a soldier to be “torture.” Thus the legal definition of “torture” in the military context must be more than what would be found personally uncomfortable by civilians.

Since there are aggressive measures that fall short of torture, it means lines must be drawn, and this is what the administration has been trying to do. The lines may be drawn in the wrong places at times. But there is nothing suspicious, disreputable or shocking about trying to translate vague prohibitions into concrete rules. Indeed, it would be cause for outrage if we had learned that the administration had failed to consider carefully what investigative tools are and are not legally open to us.

A major concern is that setting a high threshold for torture would invite similar behavior by our enemies. If we were dealing with different enemies, this concern might have some bite. But al Qaeda and the Ba’athist remnants do not subscribe to the Convention Against Torture or the Torture Victim Protection Act. They execute innocent civilians in cold blood — not because we did so first, but because they disdain reciprocity and law.

It is a testament to our humanity that we have lawyers painstakingly ascertaining our obligations to detainees. But this does not mean that we must resolve all ambiguities against ourselves, or to call “torture” that which has not been deemed so by international law or Congress.

Eugene Kontorovich is a professor at George Mason University Law School. He writes about international law and the constitutionality of national security measures.

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