by Bruce S. Thornton
Advancing a Free Society
In his classic essay “Politics and the English Language,” George Orwell identified a “lack of precision” as the besetting sin of politicized writing, either through incompetence or indifference as to whether “words mean anything or not.” The liberal media have illustrated the truth of this observation in their desperate attempt to avoid acknowledging that the death of Osama bin Laden wouldn’t have happened without information acquired through interrogation techniques demonized as “torture” and abandoned by President Obama.
As always, The New York Times has led the way in ideological damage control. Its May 5 editorial thundered against “crowing by the apologists and practitioners of torture that bin Laden’s death vindicated their immoral and illegal behavior after the Sept. 11 attacks.” But the glaring begged questions here are “torture” and “illegal.” In fact, according to US law enhanced interrogation techniques like waterboarding are not torture and hence are not illegal.
This widespread belief that the interrogation techniques are torture gains traction because of the vagueness Orwell spoke of. In the popular imagination, the word “torture” evokes gruesome images from movies like Saw, the reports of sadistic abuse inflicted by tyrannical regimes like the North Vietnamese who tortured Senator John McCain, or lurid descriptions of the Spanish Inquisition as found in the stories of Edgar Allan Poe. This imprecision is worsened by the way we casually use the word to describe everyday annoyances like going to the dentist or listening to a blowhard. Such vagueness reduces the word to fuzzy negative emotions, making precise definition and use more difficult.
Laws, however, have to be more specific. The statute covering torture in the US Code defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,” and further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.” The key words are “intended,” “severe,” and “prolonged.” As John Yoo writes in his indispensable book on the subject, in passing this legislation “Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with ‘specific intent,’ the highest level of criminal intent known to the law . . . . If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, it would not be torture.”
However, the law left vague what “severe” means. That is why, in 2002, the Office of Legal Counsel in the Bush administration’s Department of Justice, where Yoo was a deputy assistant attorney general, prepared what the left tendentiously calls the “torture memos.” To clarify the law, the OLC looked to other uses of similar language in US law. “The only other place” Yoo writes, “where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’” So too with “prolonged” regarding “mental harm.” By including this language, “Congress prohibited the causing of posttraumatic stress disorder or chronic depression,” but not the “temporary strain” of a tough interrogation.
This analysis led to the definition of torture in the 2002 legal opinion: “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under US law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither “torture” nor “illegal.”
And Attorney General Eric Holder agrees, or at least he did in testimony before the House Judiciary Committee in May 2009. Since tens of thousand of American service members were waterboarded during their SERE (Survive, Evade, Resist, Extract) training, Holder was asked why this training wasn’t torture and hence illegal. Holder correctly replied, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.” This same logic perforce applies to the CIA interrogators, whose intent was to gather intelligence in order to defend us from terrorist attacks. The lack of intent to harm permanently on the part of the interrogators is confirmed by the carefully calibrated limitations imposed on the techniques, as well as the presence of physicians and psychologists to monitor the proceedings and insure that the subject didn’t suffer permanent physical or mental damage.
The continuing characterization of these valuable techniques as “torture” represents an Orwellian distortion of language in the service of partisan politics. “The fact is,” national security analyst Marc Thiessen writes in Courting Disaster, “none of the techniques used by the CIA meet the standard of torture in US law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.”
Imprecise, emotionally loaded language usually reflects incompetence or politics. In the case of the Times and most other liberal critics, I suspect partisan advantage and ideology lie behind the continued misrepresentation of the techniques that have generated a torrent of actionable intelligence. Unfortunately, their distortions led to Obama’s Executive Order rejecting the same techniques that have generated such useful and life-saving information. This means that the next Khalid Sheikh Mohammed, a goldmine of information after he was waterboarded, will remain mute, and the next Osama bin Laden will never be brought to justice. Worse yet, attacks like those thwarted over the last decade will have a better chance of success.
©2011 Bruce S. Thornton