The Torture Proposal


Orwell would have understood David Addington, the brilliant legal thug behind Cheney's and Bush's authorization of torture for the past five years. That's why you have to read the torture bill very closely to see what it does and does not do. The good news seems to me that the Congress has not redefined the Geneva Convention formally. That would have been a catastrophe; and it has been avoided. The consequences for the moral high ground in this long war, the effect it would have on the entire structure of Geneva, the barbarism it would have helped unleash in the coming years, the threat it would have posed to U.S. soldiers in or out of uniform - this has not yet come to pass, however strongly the president wanted it. The evidentiary rules are also better than what Bush wanted, though removing all judicial oversight and any individual's ability to cite Geneva in the courts is a major blow to civilized warfare - and to individual liberty in America.

But - and this is a big but - Marty Lederman's concern about the language in the bill about "cruel" treatment is deeply worrying. Here's Marty's point:

More important is the bill's definition of "serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering - and the prospect of ending such suffering by telling one's interrogators what they wish to hear - is the whole point of using such techniques in the first place. But remarkably - and not accidently - the bill's definition would not cover all such actual "serious physical suffering."

The definition would require, for one thing, a "bodily injury" - something that would not necessarily result from use of the CIA techniques - even though one can of course be subject to great physical suffering without any "physical injury."

What's worse, such physical injury would also have to "involve" at least one of the following:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

As you can see, this definition simply does not cover many categories of actual serious physical suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.

The result, unfortunately, is a very constrained conception of what constitutes "cruel treatment" - a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide.

And therefore the bill would appear to exclude from the definition of "cruel treatment" many cases of actual cruel treatment prohibited by Common Article 3. And when that occurs, it is likely the Executive will construe the statute -- and Common Article 3, as well -- to permit some forms of cruel treatment that Geneva in fact proscribes, i.e., the "alternative" CIA techniques. Indeed, it's happened already: The ink was hardly dry on the draft when numerous Administration spokespersons were gleefully informing the press that the bill is a green light to the CIA to reinstitute the "alternative" techniques that Hamdan had effectively interdicted. Byron York has gone so far as to relate that "both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques," even though such techniques do, in fact, constitue a breach of our Geneva obligations.

So we "formally" leave Geneva alone, but grant the executive branch complete discretion in determining what "cruel" means; and the language of the bill certainly can be construed to allow waterboarding, hypothermia, sleep deprivation, stress positions, and long-time standing. It even allows for a person to be beaten, cut, or near-drowned.

It's important to note that McCain does not believe that this is the case. He believes that the definition of "cruel" here would bar such "alternative methods". But we know from bitter experience that in any ambiguity, this administration has opted for the more draconian interpretation. So therefore all of these techniques, described in detail in Solzheniytsen's "Gulag Archipelago," potentially remain available to this president under this proposal. Barring further clarifications confirming McCain's belief that this bill bars these "alternative methods", I see no legal barrier in this bill to Bush's continuing to authorize them in the future. Worse, the proposal will have declared these practices not to be "cruel". Worse still, its Orwellian abuse of language contains echoes of totalitarian discourse.