by Bruce S. Thornton<\/p>\n
Advancing a Free Society<\/em><\/p>\n In his classic essay \u201cPolitics and the English Language,\u201d George Orwell identified a \u201clack of precision\u201d as the besetting sin of politicized writing, either through incompetence or indifference as to whether \u201cwords mean anything or not.\u201d 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\u2019t have happened without information acquired through interrogation techniques demonized as \u201ctorture\u201d and abandoned by President Obama.<\/p>\n As always,\u00a0The New York Times<\/em>\u00a0has led the way in ideological damage control. Its May 5\u00a0editorial<\/a>\u00a0thundered against \u201ccrowing by the apologists and practitioners of torture that bin Laden\u2019s death vindicated their immoral and illegal behavior after the Sept. 11 attacks.\u201d But the glaring begged questions here are \u201ctorture\u201d and \u201cillegal.\u201d In fact, according to US law enhanced interrogation techniques like waterboarding are not torture and hence are not illegal.<\/p>\n This widespread belief that the interrogation techniques are torture gains traction because of the vagueness Orwell spoke of. In the popular imagination, the word \u201ctorture\u201d evokes gruesome images from movies like\u00a0Saw<\/em>, 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.<\/p>\n Laws, however, have to be more specific. The\u00a0statute<\/a>\u00a0covering torture in the US Code defines it as \u201can 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,\u201d and further clarifies \u201csevere mental pain or suffering\u201d as \u201cthe prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.\u201d The key words are \u201cintended,\u201d \u201csevere,\u201d and \u201cprolonged.\u201d As John Yoo writes in his indispensable\u00a0book<\/a>\u00a0on the subject, in passing this legislation \u201cCongress 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 \u2018specific intent,\u2019 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.\u201d<\/p>\n However, the law left vague what \u201csevere\u201d means. That is why, in 2002, the Office of Legal Counsel in the Bush administration\u2019s Department of Justice, where Yoo was a deputy assistant attorney general, prepared what the left tendentiously calls the \u201ctorture memos.\u201d To clarify the law, the OLC looked to other uses of similar language in US law. \u201cThe only other place\u201d Yoo writes, \u201cwhere similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including \u2018severe pain\u2019 where an individual\u2019s health is placed \u2018in serious jeopardy,\u2019 \u2018serious impairment to bodily functions,\u2019 or \u2018serious dysfunction of any bodily organ or part.\u2019\u201d So too with \u201cprolonged\u201d regarding \u201cmental harm.\u201d By including this language, \u201cCongress prohibited the causing of posttraumatic stress disorder or chronic depression,\u201d but not the \u201ctemporary strain\u201d of a tough interrogation.<\/p>\n This analysis led to the definition of torture in the 2002 legal opinion: \u201cphysical 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.\u201d By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither \u201ctorture\u201d nor \u201cillegal.\u201d<\/p>\n 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\u2019t torture and hence illegal.\u00a0Holder correctly replied<\/a>, \u201cIt\u2019s not torture in the legal sense because you\u2019re not doing it with the intention of harming these people physically or mentally.\u201d 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\u2019t suffer permanent physical or mental damage.<\/p>\n The continuing characterization of these valuable techniques as \u201ctorture\u201d represents an Orwellian distortion of language in the service of partisan politics. \u201cThe fact is,\u201d national security analyst Marc Thiessen writes in\u00a0Courting Disaster<\/em><\/a>, \u201cnone<\/em>\u00a0of the techniques used by the CIA meet the standard of torture in US law. This is for two reasons: first, because the CIA\u2019s interrogators did not\u00a0specifically intend<\/em>\u00a0to inflict severe pain and suffering; and second because they did not\u00a0in fact<\/em>\u00a0inflict severe pain and suffering.\u201d<\/p>\n