“Pain” and the “Torture Memos”

The recently-released "torture memos" of the Bush Administration are rife with linguistic sleight of hand, justifying torture with understatement and sophistry.

Much has been written in the last few weeks about what President Barack Obama should or should not do now that his administration has released the infamous “torture memos.” His original intention was to adopt a “reflection, not retribution” stance, which roughly means drawing a thick line between administrations and moving on. While the pundits have debated the merits and demerits of prosecutions and truth commissions, the actual ways and means lawyers managed to make arguments for legalizing torture in a democracy with a long tradition of civil liberties and adherence to the rule of law has received less media attention. Of course, the memos will be the grist of law school professors and civil libertarians, not to mention potential prosecutors and defendants, for some time to come. But what of a layperson’s understanding?

First, the “memos” as such are not really memos in the sense of being a one- or two-pager. Rather, the released documents are lengthy and detailed legal opinions. The 2005 Bradbury opinion on the interrogation of an unnamed “High Value al-Qaeda Detainee” is 46 pages long, with 58 footnotes. They are coldly dispassionate and full of the usual legal disclaimers about being based on limited application to specific facts. Determinations are based on the parsing of the textual meaning of the prohibition against torture in the U.S. Code.

Second, and put simply, it really all boils down to pain and intent. And that is where the hilarity and the horror really begin. In the Bybee opinion on the interrogation of Abu Zubaydah, at issue are the use of techniques now all-too-familiar to us, such as waterboarding, forcible confinement, sleep deprivation, and a variety of stress positions, holds, and slaps. The general conclusion is that as long as the approach taken does not cause severe mental or physical pain of an ongoing nature and was not intended by the interrogator to do so, a particular technique neatly escapes the moniker of torture.

How is this legal and linguistic sleight of hand achieved? Bybee does it quite nicely. Pain is simply defined away, by calling it something else. Acting like the Humpty Dumpty in Alice in Wonderland, words say what the authors want them to say. Pain becomes “stress,” “discomfort,” or “muscle fatigue.” Hitting someone in the face is not really about inducing pain, but rather about invading “the individual’s personal space,” with a goal to “induce shock, surprise, and/or humiliation.” Actual pain, according to Bybee, is akin to “beatings with weapons such as clubs” or the “burning of prisoners,” so, relatively speaking, how can something as innocuous as an “uncontrollable physiological sensation of drowning” (i.e. waterboarding) be said to constitute severe mental or physical pain? Especially since it is limited to a 20-minute repetitive “application.” Because it’s not absolutely medieval, it cannot be torture. As a mother, I can only imagine how Bybee might describe labour. Perhaps as “stress and muscle fatigue associated with natural and repetitive contractions of a short-term nature”? Certainly not pain. After all, most of us moms recover, and do not exhibit any outward signs of ongoing mental or physical impairment (unless you count parenting).

Anthony Lewis, who has long documented the legalization of torture, once condemned the misadventures of the Office of Legal Counsel in the U.S. Department of Justice as the ultimate “la trahison des avocats” – the treason of lawyers. In so doing, he was paraphrasing the terminology of the French writer Julien Benda, who in his 1927 book La Trahison des clercs critiqued the politically engagé intellectuals (“clercs”) of his day for being apologists for dangerous nationalism. The term was later widely employed during the Cold War to attack continental intellectuals presumed guilty of a Leftist and pro-Communist bias – they had supposedly abandoned their reason for their politics. Surely Lewis was right in what might once have seemed a hyperbolic description. In the Bush “war on terror,” lawyers put their prodigious skills of analysis and argumentation in the service of their politics. Under the guise of legal reasoning.