For over a decade, the United States has lived with a loose definition of "torture" that is significantly out of line with that of most of the rest of the world and invites the kind of manufactured distinctions that give lawyering a bad name. Moreover, officials in both Congress and the executive branch have winked and nodded at practices such as sending prisoners to countries that will do our dirty work for us. Our chief executive, in our name, professes to be shocked, just shocked, that scandalous practices are occurring in Afghanistan and Iraq. Perhaps George W. Bush would offer the excuse that he reads no newspapers; he gets his information only from self-serving courtiers. There is no excuse for presumably better-read members of Congress and, most of all, those of us who did read the stories and simply went on with our lives as if they had nothing to do with us and concerned only the various "others" living in strange and faraway places.
This emotional distance collapsed last week, with the publication of the photographs of prisoners in U.S. custody in Iraq. The first response was a wave of denunciation by commentators, politicians, and ordinary citizens alike, of the "torture" revealed by the photographs. To be sure, each of the pictures — worth far more than the standard 1,000 words — portrays disgusting, cruel, and altogether indefensible behavior on the part of Americans who should have known better. But was it "torture"? And why does it matter what we — or, more to the point, lawyers — call it?
The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says that "the term 'torture' means 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. . . . It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions . . . " (emphasis added).
Any lawyer would immediately wonder what "severe" means in this context and whether the U.N. convention doesn't have the paradoxical result of licensing "non-severe" pain or suffering. And, incidentally, must the "pain" be physical, or does a humiliating assault on one's dignity by being stripped naked count? Interestingly enough, though the title of the U.N. convention indicates that "cruel, inhuman, or degrading" acts are also forbidden, no definition is offered as to what they consist of.
The U.N. convention also states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture" (emphasis added). This is as powerful a condemnation of torture as can be imagined. By the same token, though, it leaves open the argument that anything less than torture may be permissible during dire times.
Here, as in so much else, what the U.N. says is scarcely the last word as far as the U.S. is concerned. The U.S. in fact ratified the torture convention in 1994, and it accepted the "no exceptional circumstances" clause quoted above. However, the Senate, as is its prerogative, noted that its "consent" was "subject" to acceptance of its own definition of "torture," which includes the following:
" . . . the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality . . . "
One scarcely needs to be a lawyer to understand the potential significance of the words I emphasize or to see why the Netherlands government formally protested that the U.S. definition of torture "appears to restrict the scope of the definition of torture" proffered by the U.N. convention.
According to an April 2002 Wall Street Journal story with the revealing headline "Interrogation School Tells Army Recruits How Grilling Works: 30 Techniques in 16 Weeks . . . ," army interrogators were taught to "do just about everything short of torture, which officials say is not taught here, to make their prisoners spill information that could save American lives." The article even noted that the army judge advocate general's corps "keeps a lawyer on hand during interrogations, for quick decisions on the degree of physical or mental pressure allowed." One of the "teachers" was quoted as saying, "What we can get away with depends on" the JAG officers. "One JAG officer might say it's a go, another might say it's torture."
It is a grim reality that a well-trained JAG lawyer, asked only if what is being done (or contemplated) meets the legal definition of torture (as distinguished from being morally questionable or even "inhuman or degrading"), might have to say it doesn't, at least if he or she is referring to the Senate's definition. How "imminent" is the threat, how "severe" the pain, how "prolonged" the suffering? That the proposed conduct might strike our hypothetical lawyer as "cruel" or "immoral" can be all too irrelevant if the question asked is, "Does this count as torture?" In an 1825 opinion concerning slavery, Chief Justice John Marshall, who had no trouble recognizing the evil of slavery, nonetheless distinguished the task of the "jurist" (or lawyer) from that of the "moralist," and that distinction remains central to most lawyers' self-concept today.
The Senate also tellingly modified the part of the U.N. convention that prevented sending "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture" (emphasis added). According to the Senate, "the United States understands" the emphasized phrase as meaning only "if it is more likely than not that he would be tortured" (emphasis added). This change has no doubt enabled highly educated and professional government lawyers to justify the American "rendering" — that is, sending — of prisoners, as reported in 2003, to such countries as Egypt, Morocco, and Jordan, by adopting the self-serving skeptical posture that the U.S. does not really know whether it's "more likely than not," as distinguished from "possible," that the prisoners will be tortured.
The only thing new about recent revelations is the pictures. For example, on December 26, 2002, The Washington Post published an extensive report on the appalling treatment of prisoners and detainees in Afghanistan, including "rendering" to other countries. "We don't kick the [expletive] out of them," one anonymous U.S. official was quoted as saying. "We send them to other countries so they can kick the [expletive] out of them." Similar stories appeared in such outlets as The New York Times and The Economist. None appears to have had the slightest impact. The Economist in January 2003 described the American discussion of allegations of torture as "desultory," and nothing that happened before last week would have merited a different adjective.
Why, then, should we feign shock that inexperienced, frightened, and foolish — it is almost pointless to view them as "evil" — young soldiers would have had little or no understanding of what the limits were on what they could do? They have received not the slightest trace of genuine leadership on this issue.
The blame goes far beyond the Bush administration. Congress has made no attempt to specify the kinds of interrogation practices that we are willing to accept being done in our name. No outcry was heard when Senator John D. Rockefeller IV, the ranking Democrat on the Senate Intelligence Committee, was quoted as saying that he "wouldn't rule . . . out" turning over a captured high-ranking member of Al Qaeda to a country with no compunctions about torture. "I wouldn't take anything off the table where he is concerned," said Rockefeller, "because this is the man who has killed hundreds and hundreds of Americans over the last 10 years." Rockefeller either was completely ignorant that, or, more likely, just did not care that this suggestion clearly violated the U.N. convention that the Senate had ratified, no doubt with his support.
Legal sociologists for over a century have distinguished between "law on the books" and "law in action." American "law on the books" regarding torture is murky, inviting abstruse legalistic distinctions. Even clearly stated law might not have been enough to overcome the pressures of the situation; it is probably overdetermined that the "law in action" approaches what many people might simply describe as "lawlessness." But no one should think that the events in Iraq touch only on the military command structure. Many lawyers — on Capitol Hill as well as in the executive branch — have a lot of explaining to do.
Sanford Levinson is professor of law at the University of Texas Law School. He is the editor of Torture: A Collection, forthcoming from Oxford University Press.