Defining Torture Down

Marty Lederman

On Tuesday, NPR broadcast a Jackie Northam story concerning, among other things, the difficulty of defining "torture."

In the course of the story, Alan Dershowitz is heard to say: "When you torture somebody to death—that is, when you kill somebody and use grave pain to aggravate the killing of that person—everybody would acknowledge that’s torture. But placing a sterilized needle under somebody’s fingernails for fifteen minutes, causing excruciating pain but no permanent physical damage—is that torture?"

Professor Dershowitz has gained some notoriety recently for suggesting that U.S. law should be amended to expressly sanction torture under certain regulated circumstances (e.g., with judicial warrants). He has even indicated that this might include the use of needles—but only sterilized needles, mind you—under fingernails. (In fairness to Dershowitz, I should make it plain that his reason for favoring a legal torture regime is not that he necessarily favors the use of torture, but instead that because as an empirical matter the U.S. does and will continue to use torture as a technique, the law should expressly indicate when and under what circumstances it is to be permitted, rather than purporting to categorically proscribe it.)

But until now, I hadn't realized that, for Professor Dershowitz, perhaps the needles-under-the-fingernails technique isn't even "torture" in the first place. If so, this would be akin to Judge (now AG) Gonzales's unwilliness to say under oath that intentional cigarette burns are unlawful.

Even if one agrees with Professor Dershowitz that cruel, inhuman and degrading treatment, and even "torture," as such, should be formally sanctioned in some cases -- which would require the U.S. to formally violate several treaty obligations -- it's very unfortunate to have someone of his stature suggesting publicly that the line between torture and other techniques (presumably under existing law) is so indistinct that one can't determine whether causing excruiating pain for fifteen minutes falls on one side of the line or the other.

Just for the record: Even under the constricted definition of "torture" in current U.S. law, intentionally causing "excruiating" (i.e., severe) pain to a person in one's custody is, unequivocally, torture, and is a felony under all circumstances. Perhaps it's open to argument whether that law should be changed. But I don't really see how there's any ambiguity about whether that technique is, in fact, "torture" as things now stand.
Posted 10:43 AM by Marty Lederman [link]