Alan K. Henderson's Weblog


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Wednesday, December 14, 2005

What Is Torture?

For some time Andrew Sullivan has been railing against the Bush administration for sanctioning alleged acts of torture. In this post he strives to prove that one particular act of coercion - waterboarding - constitutes torture. This is the CIA definition of waterboarding, as excerpted in Sully's post:

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

For those of you who brought your copy of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, turn to Part 1, Article 1 (emphasis added):

For the purposes of this Convention, the term "torture" means 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

What is wrong with this document: First is the use of the word severe. No legal definition is provided for this generally subjective term; therefore, its inclusion in the document clouds rather than clarifies the meaning of "torture."

The final clause is particularly troubling. The convention recognizes "severe" punishment as "torture," unless that punishment constitutes "lawful sanctions." The 1889 Japanese Constitution used such weasel words in those articles which enumerate that subjects have certain rights "within the limits of law." Thus in Meiji Japan, the lawmakers were above the Constitution, and whoever enforces the Convention gets to arbitrate what is and isn't "severe" and what is and isn't a "lawful sanction."

The legal definition of torture must be more specific. One critical issue unaddressed by the Convention is long-term effects. What sort of trauma arises from waterboarding? Does it even rise even to the level of that associated with such "lawful sanctions" as the Soviet gulag or Saddam Hussein's dungeons? I'd like to know.

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