This is a fascinating clip of an interview of Karl Rove conducted by the BBC. In the clip, Karl Rove admits that he is proud that the United States used the techniques authorized by the memoranda drafted by the Office of Professional Responsibility lawyers, Jay Bybee, Jonathan Yoo and others, to “keep America safe.” Recall that the techniques these memoranda authorized include sleep deprivation for periods of up to 11 days, chaining people in standing positions with their hands raised over their heads to prevent sleep and/or rest, chaining people in other stress positions, subjecting them to extreme cold for extended periods of time, and, or course, waterboarding.
Rove also argues that reasonable people can disagree as to whether waterboarding constitutes torture, and that he does not believe it is torture - irrespective of the fact that U.S. officials have prosecuted people for torture for acts of water boarding several times in the last 60 years. But in the same argument, he brags that these techniques, including waterboarding, were used to “break the will” to “get valuable information.”
I’ll concede that reasonable people who aren’t familiar with the legal definition of torture, can disagree about whether waterboarding constitutes torture. Such people can, and certainly do, disagree. The real question is, “can reasonable people who are familiar with the legal definition of torture reasonably disagree about the status of waterboarding as torture.”
Torture is defined in numerous laws that apply to U.S. Government officials. The most directly relevant definition of torture is found in our federal statutes, specifically 18 USC §2340(2). Pursuant to this federal statute:
“[T]orture” 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.”
Lawyers apply laws to fact by breaking out each of the elements of a statute and considering them separately. Using this method, the torture statute requires:
(1) a person; (2) acting under the color of law; (3) to commit an act; (4) specifically intended; (5) to inflict severe:
A. Mental pain; or
B. Physical pain; or
C. Mental suffering; or
D. Physical suffering;
(6) upon another person who is; (7) within his custody or physical control.
For sake of brevity, I’m going to assume there is no controversy that waterboarding satisfies elements (1), (3), (6), and (7). That is, waterboarding involves one or more persons committing an act against another person, who is within the waterboarder’s custody and/or physical control. If anyone denies this, check out here, because you’re not worth talking to.
Element (2) can be translated as “acting in his official capacity.” This requirement refers to officials who are authorized to act pursuant to governmental authority. Police, military and intelligence personnel, and all others acting under contract with these government agencies, fall into this category. As it is clear that the water boarding in question was performed by precisely such people, element (2) is satisfied.
Waterboarding, thus, satisfies elements (1), (2) (3), (6), and (7) of the federal torture statute. This leaves elements (4) and (5).
Element (4) is tricky. The law draws a distinction between specific intent and general intent crimes. I commit a general intent crime when I intentionally do an act that creates a specific result. In most states, second degree murder is a general intent crime. I’m guilty of murder in the second degree if I intentionally shoot you and you die. To be convicted of second degree murder, the prosecutor need not prove that I intended to kill you. She only needs to prove that I intentionally shot you, and you died.
To be convicted of first degree murder, to the contrary, the prosecutor must prove that I intentionally shot you with the specific intent of killing you.
As with first degree murder, for waterboarding to be “torture,” the person doing the waterboarding must do more than just intentionally waterboard me. He must intentionally waterboard me with the specific intent (or purpose) of accomplishing the purposes specified in element (5). That is, he must waterboard me with the specific intent of inflicting:
Severe mental pain; or
Severe physical pain; or
Severe mental suffering; or
Severe physical suffering.
Thus, the question comes down to this. Did the U.S. officials who performed waterboarding on U.S. detainees do so with the specific intention of inflicting severe mental or physical pain or suffering?
Waterboarding is designed to simulate drowning - it can easily result in drowning if not performed with proper care. A person waterboards another person with the specific intent of creating the panic of drowning, magnified by the panic of being helplessly immobilized. Anyone who has ever been trapped under water when they needed to get air, even for a short while, has experienced the terrifying panic this situation generates. This type of panic falls squarely within the categories of mental pain and mental suffering. The experience of being waterboarded might also be said to create physical suffering as well, but I won’t insist on what is unnecessary to the argument. Waterboarding clearly satisfies the “specific intent” and "mental pain or suffering" requirements of elements (4) and (5), and that is all it need satisfy.
Thus, it comes down to the question of whether the mental pain and suffering induced by waterboarding is “severe?” There are various ways of defining “severe.” A philosophical analysis of the concept would require a long essay, if not a short book. I’m inclined to define “severe” in terms of the duration over which an ordinary person could inflict it upon himself, voluntarily, without relenting. As this tape shows, Waterboarding can't be endured for very long.
But a better approach is to define “severe” in terms of the stated purpose of the technique. As Karl Rove himself bragged on the tape, and as Dick Cheney has bragged many times publicly, we used these techniques to “break the will” of the detainees.
And what does it mean to have your will broken? It means that you decide that the pain or suffering is so unbearable that you surrender your will entirely to the person who is inflicting the pain or suffering, and agree to do or say anything they demand in order to get it to stop.
Can pain or suffering be unbearable without being severe? I hardly think so.
Ding! Ding! Ding! Ding Ding! We have a verdict. Waterboarding is torture as defined by the seven elements of 18 USC §2340(2).
Or am I wrong? I’m all ears.
Joe
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3 comments:
Joe, you left out a key part of the definition. Actually, what you quote is 2340(1). 2340(2) continues, "“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from . . ." and lists several methods typically used in torture. Yoo agrees with you (or with the part you insist on) that the severe aspect of the pain or suffering of waterboarding is mental, being a panic response rather than pain from physical harm. He argues that it isn't prolonged, though, and therefore doesn't meet the definition.
Yoo maintains "pain or suffering" are to be read as one thing, not two different elements, and then he reads it as basically meaning pain or at least entailing pain as a primary element. A supporting point is that the definition of "severe mental pain or suffering" seems to treat them together as a unit. (Yoo's back-up position is that if suffering is a distinct element, it entails enduring, which entails duration, but waterboarding is brief. I don't think the dictionary is on his side there.) No severe physical pain/suffering, he says.
But the most natural reading is that pain and suffering are distinct ideas. It does seem that waterboarding causes severe physical suffering, which doesn't require pain or damage. (Some have used the example of itching as physical suffering without physical harm.) The discomfort of suffocation is physical, it's argued against Yoo, and it's severe.
If the court went against Yoo on that, the defense would be that the interrogator doesn't intend to cause severe physical suffering, that he believes the only severe part is mental suffering, a panic reflex. He will have been waterboarded himself, and will swear it's mental suffering. The CIA was nuts if they let anyone who wasn't completely convinced of that waterboard someone.
Sanpete, sorry for the delay - out with the flu.
This is an interesting question.
The definition in the Federal statute appears to be completely circular. "severe mental pain or suffering" in 2340(2) is defined as "the prolonged mental harm created by (A) the intentional infliction or threatened infliction of severe physical pain or suffering.
Read literally, we have an infinite regress of definition - "severe physical pain or suffering” means “the prolonged mental harm created by - the “intentional infliction or threatened infliction of severe physical pain or suffering . . . defined as . . . ”
It is a poorly written statute - and I’m not sure how to repair it. But I’m pretty sure most courts would not agree that “pain” and “suffering” are best read as a single concept - courts prefer rulings that give meaning and effect to every word of a statute.
At any rate, it is the mental harm that must be prolonged - and the only way I see to read that is tautological - as an assumption that intentionally inflicting severe mental or physical pain or suffering automatically causes prolonged mental harm.
One could also read the statute as saying one does not torture unless one acts with the specific intent of inflicting prolonged mental harm . . .
But that doesn’t work either. It’s a mess.
Still, the intent of the statute, read in light of these other binding provisions, is prohibiting the intentional infliction of severe pain and suffering. The statute defines the circularly, but a court would, if forced to interpret the statute, fix it to mean just that. It is impossible to deny that waterboarding inflicts pain or suffering (probably both), and that it is an intentional act. So the question really does come down to the definition of “severe.”
Thanks,
Joe
Joe, "severe physical pain or suffering" isn't defined in the statute, only "severe *mental* pain or suffering," so there's no circle.
I agree the statute needs to be written more clearly, though. It should be clear that pain and suffering are distinct elements, and define the terms "severe pain," "severe suffering," etc. Wouldn't hurt to specifically rule out waterboarding and some other examples too.
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