“The issue is the issue.”
From Richard Cohen’s column:
The questions of what constitutes torture and what to do with those who, maybe innocently, applied what we now define as torture have to be removed from the political sphere. They cannot be the subject of an ideological tug of war, both sides taking extreme and illogical positions — torture never works, torture always works, torture is always immoral, torture is moral if it saves lives. Torture always is ugly. So, though, is the hole in the ground where the World Trade Center once stood.
Immediately before he gets to this, Cohen (rightfully) says that the issue is not Dick Cheney, “The issue is the issue.” Unfortunately, he doesn’t appear to know what the issue is. The issue with torture is…torture.
Well, let’s start with the dictionary’s definition:
the act of inflicting excruciating pain, as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty.
Let’s note that “excruciating pain” is not going to give us a bright line upon which we can depend, and that the pain can be mental as well as physical.
The United Nations Convention Against Torture defines torture this way:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The last part is bolded because Cohen, in a fit of either ignorance or willful obfuscation, brings up the example of Judith Miller being sent to an American prison for failing to comply with a court order as being “a wee bit of torture.” Clearly, it isn’t. Ms. Miller may have had some sort of mental anguish over being jailed, but she wasn’t tortured. End of story. Now Cohen can stop trivializing the matter.
The Geneva Conventions say this:
Basic protection (applies universally)
The minimum requirement in any event is that “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms… shall in all circumstances be treated humanely” and that there must not be any “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” (GCIII Article 3)
Combatants
“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” (GCIII Art 17).
Non-combatants
Have the right to protection from “murder, torture, corporal punishments, mutilation and medical or scientific experiments…, but also to any other measures of brutality whether applied by non-combatant or military agents.” (GCIV Art 32)
Unlawful combatants and GCIV Article 5
Most unlawful combatants must be treated as POW’s “until their status has been determined by a competent tribunal”. Non-combatants are not given any other specific protection other than the basic level applicable to everyone. In practice however, GCIV is often cited against such combatants (see below). CGIII also does not define when a tribunal is “competent” or not, a loophole in its protection.
There’s no way to honestly read that and see “enhanced interrogation” as being within the intent of the Conventions. There is an important exemption, though:
“Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention [ie GCIV] as would … be prejudicial to the security of such State.” (GVIV article 5)
The important part of this is that the person is “definitely suspected of or engaged in” some dangerous activity. Vague concerns are not good enough in this example. Plus, the person must be “in the territory of a Party to the conflict.” Many people try to read this as saying, for example, “Al Qaeda was operating in Pakistan, therefore Pakistani prisoners are not covered.” I think this is wrong enough to be rejected on its face. Quite the opposite is true – since Al Qaeda has no “territory” (since it isn’t a country) then all of its people are covered.
But more importantly is the fact that no American can ever operate outside of the US Constitution. The US Constitution plainly forbids punishment without due process and cruel and unusual punishment.
So the issue isn’t whether or not torture is effective, or even if one single life has ever been saved through its use. The issue is whether torture can be condoned under American law. It cannot. End of story.
There is no issue.
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