Redefining Torture

By Noah Leavitt, FindLaw.com. Posted August 24, 2004.

Recently, a U.S. government lawyer argued before a panel of the U.S. Court of Appeals for the Seventh Circuit – including the eminent jurists Richard Posner and Frank Easterbrook – about what the definition of "torture" should be.

The context was an immigration appeal, Comollari v. Ashcroft. But as I will explain, the resonance of the argument was far broader.

According to the government attorney, it would constitute "torture" if a sniper shoots a person in an artery, causing him to slowly bleed to death. But it would not count as "torture" if the sniper were to hit his target in the head, causing him to die instantly. So a painless assassination – by the CIA, perhaps? – would not be "torture" under the government's definition.

Readers will recall that a few months ago, several internal Bush Administration "torture" memos were leaked to the public. The memos showed that the government has been actively working to narrow the definition of "torture," so as to almost shrink it into nothingness, defying international law principles directly to the contrary. The oral argument in Comollari illustrates that the government – despite denials – is still engaged in the same enterprise of defining torture as narrowly as possible, regardless of what the law says.

In this column, I will argue that it is time for Congress to step in to reaffirm, by statute, what America considers "torture" – and ensure that this definition is used in a consistent, principled way. U.S. law already contains a clear definition of "torture," as I will explain. But the U.S. government doesn't seem to be listening to that definition. Congress should make sure it does – through investigation, resolution, and if necessary, statute. This issue is too important to ignore. America's honor and morality are at stake.

Currently, the Administration defines torture one way (and far too narrowly), wanting to protect its soldiers from being accused of it. Yet it defines torture another way when it wants to deport someone who seeks asylum on the ground that he reasonably fears being tortured if he is returned to his home country. This is unacceptable and wrong.

Background: The Torture Memos

Shortly after the Abu Ghraib prison abuse scandal broke, several shocking U.S. government internal memos surfaced. The memos, in effect, offered complex but specious legal arguments to justify the U.S.'s avoiding having to abide by the major international and national laws prohibiting torture.

An August 2002 Department of Justice (DOJ) memo stated that the DOJ advised the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war. This memo was reportedly prepared to provide legal defenses for the CIA's harsh methods, in case its agents were prosecuted for violating federal statutes prohibiting torture.

Even more significant was the very narrow definition of "torture" the memo proposed that the President could legally adopt. Under this definition, the only treatment that would count as torture would have to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

In addition, a March 6, 2003 draft report prepared by Pentagon lawyers also defined torture narrowly – and also offered arguments as to why U.S. government agents who torture prisoners could not be prosecuted.

The draft report made the nearly-ridiculous suggestion that if the purpose of the torture was to extract information, not to cause pain, it wasn't really torture: "Even if the defendant [U.S. government agent] knows that severe pain will result from his actions," it suggests, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

The draft report also went on to claim that, "in light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."

And apparently, when U.S. citizens are deemed "enemy combatants" and imprisoned incommunicado in the U.S., they may be able to be tortured here. According to the report, permissible torture recognizes no boundaries – it can be carried out overseas or in the U.S. without regard to any legal prohibitions.

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