Lithwick Tortures the Definition of Torture
Dahlia Lithwick has a highly dishonest piece about torture in the current edition of Slate. She rejects President Bush’s proposal that torture be defined as treatment that “shocks the conscience.” Lithwick appears instead to support the Geneva Convention protections against torture, which go further, and also bar “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
It would shock my conscience to write a piece as dishonest as Lithwick’s — and perhaps my commenter JVW had something like that in mind when he opined: “I think a workable definition of torture is having to endure Dahlia Lithwick’s blatherings in Slate.” I think that the targets of her dishonest attacks would agree, as they have certainly suffered outrages on their personal dignity due to her torturing of the definition of “torture.”
Imagine being Jay Bybee, and reading this:
Here’s another attractive aspect of the president’s “shocks the conscience” language: It can change over time. What former Department of Justice lawyer Jay Bybee deemed “torture” in his infamous August 2002 torture memo—conduct resulting in “organ failure, impairment of body function, or even death”—suggests that not all American consciences are created equal.
If you were Bybee and you read that, you’d be spittin’ mad. Because that quote contains at least one falsehood, and at least two false implications. Not bad for a single sentence.
First, Lithwick falsely implies that Bybee was constructing some free-floating definition of “torture” according to the dictates of his conscience. Not at all. His memo analyzed the meaning of “torture” as defined by a specific Congressional statute: 18 U.S.C. sections 2340-2340A, which defines torture as an act
committed by a person acting under the color of law specifically intended to inflict severe mental or physical pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.
Bybee was limited not (as Lithwick suggests) by his conscience, but rather by this specific statutory definition.
Lithwick also falsely implies that Bybee’s definition of torture excludes the deliberate infliction of mental anguish. This is entirely incorrect and misleading. The statutory definition quoted above undeniably encompasses severe mental pain, and Bybee recognized that in his memo.
Finally, Lithwick flatly misstates the conclusion of Bybee’s memo regarding the definition of severe physical pain or suffering. According to Lithwick, Bybee limited the definition to
conduct resulting in “organ failure, impairment of body function, or even death.”
Lithwick would have you believe that, according to Bybee, you can inflict racking pain on a detainee all day long, as long the detainee stays alive and doesn’t lose an organ, or have his body function impaired.
That is not what Bybee says. Physical torture need not “result in” these catastrophic situations. It must merely resemble the pain that one experiences in such situations. Bybee says that Congress has defined “torture” as follows:
We conclude that for an act to constitute “torture” as defined in section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of body function, or even death.
So physical conduct need not result in “organ failure, impairment of body function, or even death” to fall within the definition of torture under the statute Bybee analyzed. To amount to physical torture, the conduct need only inflict physical pain which feels like the kind of pain you feel when you get a serious injury such as these.
By the way, that’s not a definition that Bybee pulled out of his hind quarters. He looked for other Congressional laws that define “severe pain,” and found one that defines it in just this way. Since there was no other specific guidance available, and the definition seemed to fit, the memo used that definition.
Lithwick is also dishonest later in the piece, when she says:
[S]ince not one person has yet been prosecuted under the War Crimes Act, despite hundreds of documented cases of detainee abuse, it’s hard to believe that the president is really losing sleep over his Justice Department prosecuting CIA interrogators.
The implication is that nobody has been locked up for abusing detainees. Not so.
If you follow Lithwick’s link, you’ll see a Human Rights Watch press release which states that 40 people have been sent to prison for abusing detainees. An appendix to a report cited in the press release shows that at least 24 other people have been tried, of which 10 were acquitted, and 14 received no prison time. Another 57 (at least) were disciplined non-judicially.
You can be tried, without being tried under the War Crimes Act.
And what is the evidence that there are “hundreds of documented cases of detainee abuse”? The Human Rights Watch press release sets forth claims made by the Detainee Abuse and Accountability Project, or “DAA Project,” which is “a joint project of New York University’s Center for Human Rights and Global Justice, Human Rights Watch and Human Rights First.” The press release says:
The DAA Project has documented more than 330 cases in which U.S. military and civilian personnel are credibly alleged to have abused, tortured or killed detainees.
So basically, if a bunch of lefty researchers deem “credible” hundreds of claims made by detainees — a group that includes Al Qaeda terrorists as honest as Osama bin Laden was when he denied involvement in the September 11 attacks — then in Dahlia Lithwick’s mind, that means the cases are “documented” to the extent that she feels free to imply that there should have been prosecutions.
I don’t think that follows, Ms. Lithwick.
Closely scrutinized, Lithwick’s argument persuades the reader that Bush is right and she is wrong on the issue of defining torture. After all, how could she be right, if she has to be this dishonest to make her arguments?
P.S. OK, how do I really feel? Well, of course, I STRONGLY OPPOSE TORTURE! But if nothing else, Lithwick’s article reminds us that there are different definitions of torture.
I don’t want our people inflicting severe pain unless it’s the direst of circumstances — the “ticking time bomb” type scenarios.
But a little humiliation doesn’t bother me much, if the subject is a terrorist with real information, and our agents believe that the humiliation will get the subject to reveal that information. For example, the government claims that
Khalid Sheikh Mohammed has given U.S. interrogators the names and descriptions of about a dozen key al-Qaeda operatives believed to be plotting terrorist attacks on American and other Western interests.
Now, I don’t know if I buy that, but I think it’s a smart move to say it whether it’s true or not. Confusion and uncertainty can help throw the enemy back on their heels.
Just for grins, we’ll assume it is true. Now, if an interrogator got that information by threatening to drip a drop of Jewish blood onto his tongue, or by having a woman order him around in contravention of his sacred principles of misogyny, I can’t get too upset about that — as long as it was done to get information and not simply to humiliate the guy for fun or revenge. (Even that would be personally satisfying, given how evil the man is — but I can’t support such actions as a valid policy of this country.)
Some have argued that “abusive” treatment will not yield accurate information. I don’t know if that’s true or not. But if it is, won’t the problem cure itself over time? If our interrogators learn that, time after time, a certain technique does not result in our obtaining accurate information, I would assume that the lack of results will eventually cause the technique to fall into disfavor. You only bang your head against the wall so many times without success.
But as long as we’re not really hurting people — and if we can keep it quiet so as not to inflame world opinion against us further — then what’s a little degrading treatment among enemies?
P.P.S. I keep hearing that failing to follow the Geneva Conventions will result in poor treatment of captured Westerners. They might chop our heads off!
One thing’s for sure: exaggerating our misdeeds, and branding mild humiliation as “torture,” does just as much to put captured Western subjects at risk as does engaging in said mild humiliation.
P.P.P.S. The reason that “shocks the conscience” is a standard that provides legal guidance is because it has been used for years by courts analyzing the Due Process Clause. If Lithwick were a legally knowledgeable person who had been a law clerk and that sort of thing, she would know that, and would certainly have told you about it.
What that? She is legally knowledgeable? Well, then — chalk it up to yet more dishonesty.
Mild humiliation = torture? Geez, Gitmo must be one of those Stuart Smalley “you’re good enough … and people like you!” places compared to say, any American high school.
Hoystory (de9da0) — 9/14/2006 @ 12:41 amYes, but what about forced listening to the Red Hot Chili Peppers? Is that pain comparable to organ failure?
That got results, by the way, and led us to KSM.
See Dubya (b13707) — 9/14/2006 @ 1:11 amTo me, being forced to sit in a chair and listen to Red Hot Chili Peppers for days on end is the ultimate torture. Cruel, inhuman, and just plain icky.
Howard Veit (28df94) — 9/14/2006 @ 4:33 amIn case no one else has noticed…our enemies do not recognize the Geneva Convention, wear uniforms, occupy an identifiable geographic state nor have embassies or diplomatic missions. They are simply criminals. Criminals, by their behavior, must lose their ‘right’ to protection under the law. They do not abide the law, so why do we waste our time and money giving them rights? More law of the jungle is needed here not more jungle of Law….shakespeare makes more sense every day…
paul from fl (464e99) — 9/14/2006 @ 4:44 amSorry, Pat. I didn’t meann to make you have to fisk the whole pile o’crap. Good legal scatomancy, though.
Darleen–I agree with your point, but I also think that given the political situation interrogators have a right to know where the lines are. As it stands, it’s a bit like the famous “definition” of pornography.
Dan Collins (208fbe) — 9/14/2006 @ 4:48 amIn all of these esoteric and ultimately irresolvable discussions we lose sight of the key point. What do these commentators believe to be permissible techniques to obtain information? Is it a “please and thank you”, “pretty please”, “oh c’mon”? Instead of accepting a tear-down of existing policy the detractors’ feet must be held to the flame – what is their alternative? Repeatedly demand their solution and once obtained let the people speak with their votes. I guarantee that Lithwick and her loud ilk are in the minority.
Marv Schwartz (f1428d) — 9/14/2006 @ 5:14 amI think that what Lithwick is saying is that if conservatives do it, it’s a crime against humanity. If liberals do it, it’s graduate school.
Dan Collins (208fbe) — 9/14/2006 @ 5:23 amGive it away, give it away, give it away now
Give it away, give it away, give it away now
Give it away, give it away, give it away now
I can’t tell if I’m a kingpin or a pauper
I can see how that worked. 😉
Pablo (efa871) — 9/14/2006 @ 5:44 amThats not quite right. Even after you are convicted, you still have certain rights of protection under the law.
actus (10527e) — 9/14/2006 @ 5:49 amNot unlawful combatants, actus. AQ, etc. act in ways that exclude them from ANY definition of protected individuals under the Geneva Conventions.
Robert Crawford (aa888e) — 9/14/2006 @ 6:17 amShe’s not lying, she’s just on the other side. The interigation subjects’ not knowing what the boundries are is an important tool in the interigator’s kit, just as knowing the boundries are an important tool in the subjects’ resistance kit. Whether or not the rules are broken, allegations of rule breaking can aid a subject’s resistance.
The actions of the terrorists are such that they are not, according to the Geneva Conventions, to be accorded the protections of those Conventions that would be applied to uniformed enemy combatants. Since the Conventions were written in an era where gentlemen pretended to be following the rules, and non-state actors were pretty much non-existant, no level of treatment (good or ill) was prescribed for them. That they’re in legal limbo is not Bush’s fault, but the Conventions.
htom (412a17) — 9/14/2006 @ 6:20 amInformation obtained over scones and a pleasant cup of coffee
Iraqi National security adviser Mouwaffak Al-Rubaie said Hamed Jumaa Farid al-Saeedi gave information that led to the capture or death of 11 other top al-Qaeda in Iraq figures and nine lower-level members. He said those arrested included non-Iraqi Arabs. One hopes he volunteered the information pleasantly.
Dana (3e4784) — 9/14/2006 @ 6:40 amShe uses Bybee’s quote as analogy.
“Here’s another attractive aspect of the president’s “shocks the conscience” language: It can change over time. What former Department of Justice lawyer Jay Bybee deemed “torture” in his infamous August 2002 torture memo—conduct resulting in “organ failure, impairment of body function, or even death”—suggests that not all American consciences are created equal. ”
The analogy is confirmed here:
AG Gonzalez: “the CIA would engage in no conduct that ‘shocks the conscience.’ He added that this concept was context-dependent, since the ‘shock’ threshold may be higher with the likes of KSM–who planned 9/11–than for ordinary detainees.”
WSJ
Read Marty Lederman
Seth Edenbaum (0f8888) — 9/14/2006 @ 7:01 amMany captured weterners are released unharmed by their captors. They do not all have their heads chopped off. One of the reasons for humanely treating prisoners is so that our own prisoners will be treated humanely and if not America can pursue recourse, legally or militarily, without being a hypocrite. I think McCain understands that.
If every captured American had their head cut off then that point would be moot.
This kind of reminds me of watching O’Reily debate someone concerned about the environment. If they dare to criticize Bush on his environmental record he attacks them mercilessly. Then when it’s all over he tells us he really cares about the environment and thinks it should be protected. So what are his solutions. Patterico says he strongly opposes torture, but torture is going on now and yet the only criticism is for Lithwick.
Paul (99e27b) — 9/14/2006 @ 7:58 amSeth, Comment # 13:
nk (54c569) — 9/14/2006 @ 8:14 amEven though my personal position is that once you deprive a human being of his freedom you become in loco parentis to that person responsible to provide him with the basic safety and comfort he could have obtained for himself were he free, I stopped trusting Professor Lederman on this issue a long time ago. His resentment of President Bush has led him to wild exaggerations and speculative accusations masquerading as facts. One of his milder ones was after Hamdan came down: He speculated, gleefully I thought, that we could be tried for war crimes because of our interrogation techniques at Gitmo.
She uses Bybee’s quote as analogy.
Yes, I understand that. But she is highly dishonest while doing it, and makes it sound like this is Bybee’s own personal definition of torture.
Patterico says he strongly opposes torture, but torture is going on now and yet the only criticism is for Lithwick.
To say “torture” is going on misses the point of how you define it. Exactly what is going on, and how do we know?
And yes, the criticism is of Lithwick, who is being very dishonest in her piece. Do you deny it????
Patterico (de0616) — 9/14/2006 @ 8:15 amSeth:
Of course it’s context dependent!
Hypo: for one week, interrogators play Red Hot Chili Peppers at a volume enjoyed by many of our nation’s teenagers, and give the subject the same amount of sleep I got in college when doing term papers.
If the detainee is a fighter in a war against our country with no useful information, that might shock some people’s conscience, I guess. Because it would seem gratuitous and mean.
But if the detainee is KSM and gives up valuable information on ongoing terrorist operations — that seems different, doesn’t it. Is you conscience shocked now?
Patterico (de0616) — 9/14/2006 @ 8:48 amTorture was once used to gain confessions when evidence was just not there. There was never any credible evidence of witchcraft presented in any trial. This was one rationale of our Fifth Amendment.
Prisoners of war were often tortured to get false statements that could be used for propaganda, but who believed those lies?
Information extracted through ‘vigorous interrogation’ could be used to save lives. If someone knew the location of a weapon of mass destruction, should said person be afforded the services of an attorney? Should every procedural ‘i’ be dotted and every ‘t’ be crossed?
We are not dealing with a nation as an enemy but a body that is inherently evil and supported by a number of nations headed by dictators.
Nice guys come in last in this game. Dead last.
Arthur Downs (b4ba83) — 9/14/2006 @ 8:49 amDahlia Lithwick has a highly dishonest piece about torture in the current edition of Slate. She rejects President Bush’s proposal that torture be defined as treatment that “shocks the conscience.” Lithwick appears instead to support the Geneva Convention protections against torture, which go further, and also bar “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
Lithwick used hyperbole -sloppily- to back up a simple and straightforward point, which was later confrmed.
This is the core issue:
—Former Secretary of State Colin Powell on Thursday endorsed efforts by three Republican senators to block President Bush’s plan to authorize harsh interrogations of terror suspects.
The latest sign of GOP division over White House security policy came in a statement that Powell sent to Sen. John McCain, R-Ariz., one of the rebellious lawmakers. Powell said that Congress must not pass Bush’s proposal to redefine U.S. compliance with the Geneva Conventions, a treaty that sets international standards for the treatment of prisoners of war. “The world is beginning to doubt the moral basis of our fight against terrorism,” said Powell, who served under Bush and is a former chairman of the Joint Chiefs of Staff. “To redefine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk.”
LINK.
—
“He speculated… that we could be tried for war crimes because of our interrogation techniques at Gitmo.”
Seth Edenbaum (0f8888) — 9/14/2006 @ 10:01 amWe, meaning Bush and co.
Many people would agree. But we can spread that one around a little
She can stuff her “hyperbole” and try being straightforward and honest for a change.
I think she feels that her writing would lack “snap” if she didn’t distort things. There’s a lotta people out there like her.
Patterico (de0616) — 9/14/2006 @ 10:11 amOne might reasonably wonder if Powell also endorsed the actions of his good friend and former underling in blowing the cover of a top-secret, undercover CIA agent whose work was vital to curtailing proliferation?
Lurking Observer (ea88e8) — 9/14/2006 @ 10:28 amColin Powell says that to redifine Common Article 3 of the Geneva Convention wuold put our troops at risk.
Patterico says “I keep hearing that failing to follow the Geneva Conventions will result in poor treatment of captured westerners. They might chop off our heads!” as if this were some kind of joke position to hold.
Yes I do beleive Lithwick was dishonest in implying that Bybee said organ failure had to be involved for it to be torture when he also said pain equal to pain of organ failure would be torture. By the way, pain equal to organ failure would include water-boarding, which simulates drowning, thus the failure of the lungs, and is practiced by our CIA.
My real question is why all the vitriol for Lithwick while none for the Bush administration which wants to tortue and implement policies that put our men and women at risk.
Paul (aeea58) — 9/14/2006 @ 10:47 amPaul,
Actually our even fighting back against the 9/11 attack put our men and women at risk. Are you against that?
You still have not given a true definition of torture. Just what would you allow and what would you forbid? The men and women out there fighting are put in the positioin that they have to know what they can do and what they cannot. Unless you define it exactly then what you are doing is saying that after the fact you will decide if what they actually did was torture or not. Their ideas on the subject don’t matter, only yours do. If you can give them a real definition of what is permissible, then what you are doing is setting yourself up as the judge and jury of what men and women under stress will decide is required to do their jobs. That leaves the whole subject up to so much political games playing that it becomes an impossible situation.
That is what the real question is. What are you prepared to do given the current situation? Just how far would you go under the situation of someone threatening to kill those near and dear to you. That is the situation our men and women in uniform are operating under. Our nation is under threat from the terrorists and you are sitting here under the apple tree postulating what you would do and then taking another sip of the champagne and eating another spoonful of caviar. They do not have that luxury.
dick (b8e957) — 9/14/2006 @ 11:48 amI don’t know what a perfect definition of torture would be but I don’t think that that is what Bush is after. What Lithwicks article did do a good job of is pointing out that Bush is really only interested in confusing the issue and pushing the envelope. It is obvious that Bush beleives he has the executive authority to conduct war as he sees fit and that includes torture. Any legislation that may be past with White House support would only be in furthering that agenda.
Paul (aeea58) — 9/14/2006 @ 12:09 pmThat’s because it is a joke position to hold. Anyone who thinks our enemies will respect the Geneva Conventions while holding our men is not playing with a full deck.
Xrlq (30d0d9) — 9/14/2006 @ 12:49 pmBut Paul, aren’t you essentially trying to have it both ways? You argue that we need a workable definition of torture, but you are unwilling to take a guess at what it would be. Instead, you just bemoan the fact that the President doesn’t seem interested in defining it either.
In a way I don’t blame you for not wanting to try to define it. No matter what we do, there will always be that hardcore anti-American activist who will say that we are torturing detainees because the prayer mats we give them at Gitmo are chafing their knees, or because the toilet paper is not triple-ply. Undoubtedly they will be able to point to some ill-conceived torture definition that encompasses this, and they will have yet another method of undermining the War on Terror.
JVW (d667c9) — 9/14/2006 @ 12:52 pmPatterico is quite fond of the charge of dishonesty but it seems that he often just reads into peoples statements what he wants to then knocks down his own straw man.
For example he states that when Lithwick says “Since not one person has yet been prosecuted under the War Crimes Act, despite hundreds of documented cases of detainee abuse, it’s hard to beleive that the president is really losing sleep over his Justice Department prosecuting CIA interrogators”
Patterico chooses to read into that “The implication is that nobody has been locked up for abusing detainees.” And that is Pattericos standard for dishonesty. But that is not the implication nor is it dishonest. There is no implication. It is a simple straightforward statement, “Not one person has yet been prosecuted under the War Crimes Act, despite hundreds of documented detainee abuse.” That is a true, factual, statement, the opposite of dishonest, with no need to read any implied meaning into it unless you are desperate to discredit the sourse.
Also when Lithwick says “it’s hard to beleive that the president is really loosing sleep over his Justice Department prosecuting CIA interrogators.” she is stating that the point of this paraghaph is about CIA interrogators. If you go to her link you will see “The Department of Justice has not indicted a single CIA agent for abusing detainees; it has indicted only one civilian contractor.” a point central to Lithwicks supposed “dishonest” argument and one therefore unmentioned by “honest” Patterico.
I think it would behoove everyone to actually read Lithwicks article and links in full and not rely on what Patterico thinks she implied.
Paul (aeea58) — 9/14/2006 @ 12:59 pmJVW, if you read my comments you will see that I never argued we need a workable definition of tortue. What I will say is that any definition coming out of the Bush administration would only be in furtherance of their ideological beleif that the executive has the right to torture unfettered by congress or the courts, which I think is a dangerous position.
I think if we got through Vietnam, WWII, Korea, and all the rest OK we will be OK for now without changing anything with regards to torture. Maybe some day if we get a responsable govt. in place in America they could come up with a workable definition. For now, me or Bush coming up with one would just be more trouble.
Paul (aeea58) — 9/14/2006 @ 1:16 pmPaul,
paul from fl (001f65) — 9/14/2006 @ 1:17 pmYou are getting wrapped up in the wrong issue here. The issue at hand is the performance of torture in order to secure information to fight a an enemy of our culture. I don’t care if my enemy is tortured according to your sensiblities or mine. I want to win. I want security for my countrymen. The enemy doesn’t give a damn about us and declines to behead someone based on an intuitive sense of the PR value of it, NOT because we granted some dirtbag “rights”. Stop spinning your wheels about Paterrico being honest or what Lithwick said or didn’t. For once, God please for once, can we wage a war and not a PR campaign? War is a dirty business filled with intended and unintended consequence. But the ultimate point is to win.
At. All. Cost. Until we recognize that fundimental truth we will spin ourselves and our culture into the dustbin of history.
JVW, if you read my comments you will see that I never argued we need a workable definition of tortue. What I will say is that any definition coming out of the Bush administration would only be in furtherance of their ideological beleif that the executive has the right to torture unfettered by congress or the courts, which I think is a dangerous position.
Yeah, I tried to point out that you and those who take your side definitely are not interested in trying to define torture yourselves, you just don’t want to let Bush do it. This is why I accused you of trying to have it both ways.
In essence you are staying that you don’t want the Bush Administration to be able to define torture, and I am saying that I don’t want Bush’s antagonists to be able to define it.
JVW (d667c9) — 9/14/2006 @ 1:30 pmThats a different story than “criminals.” But I’m not so sure about your conclusion.
actus (10527e) — 9/14/2006 @ 5:10 pmHow is the definition she favors any less subject to context or evolving standards? Much that was done to the captives in Gitmo and Abu Ghraib was considered degrading and humiliating by them (fake menstrual blood, close phsical proximity to women, domination by women, etc.), but would be laughed at by most westerners (unless they struck on the idea of pretending to be ready to crack so their torturess would continue to flash her boobs). Most people in the west would also laugh at being licked by a dog, lightly smacked with the bottom of a shoe, or being forced go watch someone rub a Koran on a pig’s butt.
Ultimatey, this is a matter of conscience. And, if it is to have any meaning at all, the consiences we have to satisfy are ours, not theirs. Otherwise, seriously lacking telepaths as we do, we are forced to allow the enemy to decide what interrogation techniques are “humiliating and degrading.”
Terry Shipman (1ad8db) — 9/15/2006 @ 9:11 pmAnd, after shocking everyone’s consciences with my spelling and typing ability, it’s off to bed for me.
Terry Shipman (1ad8db) — 9/15/2006 @ 9:13 pm