The Trouble with Defining Torture
February 9, 2012 | Posted by: David Behm
Category: Human Rights, International Law & Diplomacy, Prisoner Rights, Public | 10 Comments
The definition of torture, as codified in Title 18 of the United States Code Section 2340, does little to prevent what we have come to see in the news. Torture or harsh interrogation of detainees by Americans has made its way to the front pages of our papers over the past decade. From the prisoner abuse and torture at Abu Ghraib Prison in Iraq, to Khalid Sheikh Mohammed being waterboarded 183 times, the War on Terror has led not only to the approval of harsh interrogation techniques, but also to some abuses. While the abuse at Abu Ghraib was perpetrated by somewhat rogue soldiers who were punished for their crimes, the government has allowed harsh interrogation of terror suspects, and the definition of torture has allowed for these techniques to be used.
The United States Code defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” 18 U.S.C.A. § 2340 (West 2012). Further,
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) 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; (C) the threat of imminent death; or (D) 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.
18 U.S.C.A. § 2340 (West 2012). The problem with this definition is its workability. To one person on the street, keeping a prisoner awake for 36 hours may not fit any of these definitions, while to another person it might “disrupt profoundly the senses.” The same can be said for stress positions, a 20-hour interrogation, and waterboarding. Ultimately, the meaning of the definition depends on who you ask, which does little to help interrogators trying to do the right thing.
Further, government agencies are little help. Ali Soufan, a top FBI Interrogator, testified before Congress that harsh interrogation techniques are slow and unreliable and he recommended the use of the Informed Interrogation Approach, which involves having knowledge beforehand about the detainee’s past and building a relationship with the detainee. On the other hand, the CIA claims that the interrogation of Khalid Sheikh Mohammed (who was waterboarded 183 times) saved numerous lives, both here and abroad, and “led to the arrests of al Qaeda operatives that same month, while they were plotting attacks on American soil.” Both accounts have fair points, but should be taken with a grain of salt. Since the FBI has a policy not to use harsh interrogation techniques while the CIA does employ such techniques, it makes sense for each agency to defend its own policy.
In sum, torture is not an easy thing to define. The definition we have is vague and cannot be used to clearly put any tactics in the column of either “torture” or “acceptable interrogation.” Congress can work on the definition and the president can issue executive orders, but at the end of the day the definition of “torture” is a philosophical and moral issue, complicated by the threats facing our country today. It is hard to get just right, so until someone comes up with a practical, workable definition, we simply have to trust our government not to go too far.
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I guess I’m just a simple fella. If you aren’t willing to endure it for a day, it’s torture. If you wouldn’t let your loved ones endure it for a day, it’s torture.
sean s.
I think that there may be some techniques that can be debated with no clear answer, there are others that clearly fit into the definition of torture, and do not fit into the ideals this country believes it holds itself up to.
To the idea that we believe waterboarding is a useful and effective device, I would say it is not. It is a technique we have prosecuted when it was done by our enemies, and even our own in earlier wars. Some accounts of Khalid Sheikh Mohammed say that he only cooperated when traditional interrogations, and not waterboarding, were used.
I was thinking about this, and I think I have come up with an idea to remove the harshest, and most controversial techniques. I call it the 10-minute rule. If a technique is initiated for 10 minutes, does it cause severe injury or death, or cause a major medical emergency? If so, the technique is illegal. Waterboarding for 10 minutes would cause death. any physical violence for 10 minutes would cause death. Cutting for 10 minutes could lead to death. Electroshock for 10 minutes could cause severe nerve damage.
Other techniques, extreme cold or light or sound, that’s up for a greater debate.
@Sean, it’s a start, but I think most dentistry would qualify.
Tom, perhaps under David’s 10-minute rule, dentistry would qualify. But my rule was “endure for a day.” I have never heard of anyone enduring dental procedures for a whole day!
sean s.
… and in general, I believe torture should be looked at much like we look at the use of lethal force: something used rarely, only in extreme circumstances, and requiring compelling justification.
Given the manifest and general unreliability of torture, justifications should need to be extraordinary, if any justification is possible at all.
sean s.
“…we simply have to trust our government not to go too far.”
Our government has proven time and again that it cannot be trusted to do the right thing. What we know about it is appalling, the things it does out of sight are probably even worse. Whether it’s torture or anything else, trusting government to do the right thing is asking for trouble. This is particularly so when you have a government run by and for corporations and not “We the People.” Trust must be earned. If American history reveals anything, it is that our government cannot be trusted to do the right thing. It must be forced to do so.
Nick: “Trust but Verify”?
sean s.
Simply look at the Geneva Convention on torture, and the subsequent trials. We don’t
need to rely on the government to define the term torture for we have seen that the governemnt has abused said term to kill individuals
Hi, Sean. So you suggest the old Reagan chestnut, “trust but verify”? If it were only that easy. We spend $100 billion a year on secret or “black” projects of which no one outside the White House and a few in Congress have any knowledge of. And even then I submit programs are occurring with no oversight whatsoever.
As for torture, according to most experts, it does not work. The ironic thing is that George Bush was expressly warned of an attack on the US and did nothing. Had he been paying attention, 9/11 would have never occurred. Then his knee-jerk reaction was to impose a quasi-totalitarian government on the people and allow atrocities to occur. Which reminds me of another old saying: “We have met the enemy and it is us.” We have taken on many aspects of the old USSR, which many a politician denounced at the time.
“We have met the enemy and he is us” From the comic strip Pogo.
http://www.igopogo.com/we_have_met.htm