Torture Lite

Recent stories in the New York Times (see Secret U.S. Endorsement of Severe Interrogations (October 4, 2007) and Debate Erupts on Techniques Used by C.I.A. (October 5, 2007)) make it clear that the Bush administration does not want to allow any meaningful public debate on the proper treatment of detainees.

In August of 2002, the Department of Justice produced what has come to be known as the "torture memo," which concluded that deliberately inflicting pain on a detainee was not "torture" unless the pain was equivalent to "organ failure" or “even death.” According to the NY Times, there was also a separate memorandum that described specific approved techniques.

The "torture memo" was officially withdrawn by the Department of Justice in 2004, after the original author (John Yoo) had left the Department, and after news of the content of the memo had become public. The Department of Justice then put on its website a very sanctimonious opinion titled "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" that declared torture to be "abhorrent" and explained the meaning of terms such as "severe pain," but only in the most general way and without ever referring to any specific way of inflicting pain.

That much has been public knowledge for some time. What is news is that in 2005, after Alberto Gonzales became Attorney General, the Department issued a new, secret memorandum, again approving the infliction of physical and psychological pain. According to the NY Times, this new memorandum specifically approved not only the use of slapping, cold temperatures, sleep deprivation, loud music, and waterboarding, but allowed these techniques to be used in combinations. So it might be possible to slap around a detainee, put him in a 50 degree cell for a few hours with "music" so loud he couldn't sleep even if he could stop shivering, and then, if he does fall asleep, wake him up for some waterboarding, followed by more slapping.

(Incidentally, the NY Times and other sources continue to refer to waterboarding as "simulated drowning" or "making the subject think he is drowning." Let's be clear. Someone subject to waterboarding really is drowning. They cannot breathe, and will suffocate unless the waterboarding stops. The only difference between waterboarding and the cruel, crude, medieval practice of "dunking" is that, during waterboarding, no water can get into the victim's mouth or nose. Big deal.)

Okay, so combinations of slapping, cold temperatures, and waterboarding might not be "torture." But then Congress upped the ante, enacting the Detainee Treatment Act of 2005 and making it a crime for detainees to be subject to "cruel, inhuman or degrading treatment." Well, guess what? Then the Department of Justice declared (secretly) that the same things that they had decided weren't torture weren't even "cruel, inhuman or degrading." According to the NY Times, another secret memorandum was issued by the Department of Justice in late 2005 that reached that very conclusion.

And now, many members of Congress are upset to learn that the Department of Justice has a practice of issuing memos saying that the laws Congress has enacted don't mean what Congress thought they meant and without telling Congress that. (Which Congress should have expected, given that Bush had attached a "signing statement" to the Detainee Treatment Act of 2005 saying that he would ignore the act if he thought he had the constitutional authority to do so. See "Clarification" in this blog.)

And the response by the White House? White House press secretary Dana Perino refused to identify or discuss any specific techniques but declared that "any procedures that they use" are "tough, safe, necessary and lawful." (The "tough" I believe.)

So there you have it. Congress can pass any law it wants regarding "torture" or "cruel, inhuman or degrading treatment," and those laws don't really mean anything because the lawyers in the Department of Justice (who are appointed by the President, remember) get to define what is meant by "torture" and "cruel, inhuman or degrading treatment" and the President doesn't need to tell us (or Congress) what these definitions are.