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Calling Torture By Its Proper Name

By Jack M. Balkin

A major story in the Wednesday Washington Post detailed an interview that Bob Woodward had with Judge Susan Crawford, the chief gatekeeper (and former counsel to the Army during the Reagan Administration and member of the United States Court of Appeals for the Armed Forces between 2001-2006) regarding prosecutions at Guantanamo. She indicated her belief that "torture" had been used against Mohammed al-Qahtani, the alleged potential "20th-hijacker," and, therefore, that he could not properly be tried. I have offered some comments about the story at The Guardian's website.

There are many things that make the interview extremely important, including Crawford's own identity as a "lifelong Republican" who has obviously worked many years within the Pentagon and its environs. But consider especially the following two paragraphs:

"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

What is crucial is that she recognizes the misleading nature of debates about torture that focus only on one-off occurrences (including, for that matter, waterboarding). Instead, she argues, altogether correctly, that the occurrences of lots of by-stipulation "permitted" actions can add up, in the minds of any civilized observer, to "torture." Thus the second key paragraph:

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani's interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."

She is obviously not arguing that "insults to his mother and sister," standing alone, would constitute "torture," even though it clearly violates any prohibition against "cruel, inhumane, and degrading" treatment. But, taken together with everything else she notes, including the frequency of sleep-deprivation and the lack of any human contact with anyone else but his interrogators, it is surely "torture." One might think this relatively clear.

But the legal affairs editor of the National Review, Andrew McCarthy, begs to disagree. Thus, he has written in the New York Times that

Ms. Crawford?s conclusion is another instance of the military getting it wrong. Isolation and temperature variations of the type we are talking about here are not torture. To contend otherwise is to trivialize something that is truly heinous. It may be politically correct, but it is wrong. American law has always maintained a bright line between the egregious pain and suffering caused by actual torture and other forms of abusive conduct. Ms. Crawford?s suggestion that abusive conduct that has a ?medical impact? meets the ?legal definition of torture? is preposterous.

To put it bluntly, this is an example of moral idiocy. My objection is not that Mr. McCarthy, a former federal prosecutor, might believe that torture is sometimes necessary to serve national security ends. That is a serious debate, even though I have come to agree that we are far better off with a categorical ban on torture than to allow open exceptions. But people who defend what we did to Mr. Qahtani should have the intellectual and moral integrity to call it by its rightful name. It is that test that Mr. McCarthy fails in every conceivable way.

Full post as published by Balkinization on January 16, 2009 (boomark / email).