Thursday, March 17, 2005

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.


Paperwight: The "equivalent to organ failure or death" standard of the 2002 OLC Opinion has been formally (and properly) abandoned and repudiated in the December 2004 OLC Opinion, which is the final link in my post. See also my January 7th posts.

Criticalobserver: The notion that "excruciating" pain (or, as you put it, "extreme" pain) is less than "severe" pain is counterintuitive (to say the least) under common meaning. The issue, in any event, is whether the pain caused by the needles-under-fingernails-for-15-minutes is "severe." I think it fairly obvious that it *is* severe -- and is excruciating, extreme, and inhumane, too, for what that's worth. I also think that it shocks the conscience; but, even if you disagree, the "shocks the conscience" test is the standard for the due process inquiry -- not the torture definition. Anwway, it *is* torture, and therefore unlawful -- and it almost certainly would be unconstitutional in cases where the due process clause applies, too.

As far as I can tell, the only reason anyone, with a healthy conscience, will accept to justify torturing someone is that doing so might prevent or alleviate greater suffering elsewhere. To my knowledge, no serious argument or evidence has been put forth that suggests placing sterilized needles under someone's fingernails will have the desired outcome. It is not self-evident that torturing someone in this way, or any other, will make him or her provide accurate information (generally assumed to be what is needed to prevent suffering elsewhere).

Dershowitz has the responsibility to provide a reasonable argument that sticking needles under someone's fingernails would actually have the only effect that might justify torture, stopping worse pain elsewhere. I will guess that he has never done so.

There is little point in going further to argue that torture should be lawful, anymore than some other horrendous act, since doing so is nothing more than a hypothetical exercise at best, and a dangerous distraction at worst.

Few of us would engage in a debate about whether public funds should be set aside to be used to bribe terrorist suspects into giving information. Clearly, we could have the debate, but most of us realize that it depends entirely on whether bribery, in this situation, would have the desired effects. Unfortunately, Dershowitz has been allowed to set the terms of his debate in a way that others who enter into it implicitly accept the idea that torture has the proper effects.

Torture is the intentional infliction of pain or suffering, usually as a form of interrogation or retributive justice. The degree of suffering that constitutes torture, as opposed to non-tortuous distress or discomfort, is controversial and debated among those who favor or oppose aggressive interrogation or punishment techniques. However, sportsbook, an international legal convention ratified by most countries has defined torture as

"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 ... It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

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