Notes on Torture Memo (III)

With the Bybee memo of August 2002, the message is immediately clear. The opening paragraph reveals: “We further conclude that certain acts may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within ... [the Convention Against Torture’s] proscription against torture.” As an aside, it also concludes that the Convention’s relevant clauses may turn out to be unconstitutional if they infringe the President’s authority to conduct war.

To make this case, Bybee looks at a number of cases of torture from other parts of the world to show that the kinds of acts we are talking about in relation to CIA interrogations can be considered comparatively “mild”, if such a word can ever be used in this context. Many acts committed by other nations are of an order of magnitude more shocking. The European Court of Human Rights, for instance, concluded that (i) wall standing; (ii) hooding; (iii) subjection to noise; (iv) sleep deprivation; and (v) deprivation of food and drink – all acts that the US has been documented doing – “were inhuman and degrading but did not amount to torture.” In the same cases, accounts of a prisoner receiving a severe beating were also concluded not to be torture. Although the drafter is far too intelligent ever to make such a crass statement (not least because the memo is a legal opinion on the applicability of the CAT, not a policy paper), the implicit conclusion is that any of these five acts is permissible.

It might be worth responding to these general points at a high level.

First: it is possible to wrangle about what is and isn’t torture, and this is not necessarily a moral abdication – as long as the intent is not to obscure the meaning of the word so as effectively to permit greater latitude to torturers (which one may conclude may well be the case here). But defining the term in a strict and narrow way, as the Bush administration did, does not change the fundamental ethics of personal conduct, it simply speaks to the question of legality. Even were one to accept the Bybee definition of torture – which I think many of us don’t – the appropriate response is not, “Great, this leaves us free to commit cruel, inhuman and degrading acts,” but, “Ok, so a new law should be passed to ban US agents from committing acts that are against what we stand for but don’t technically count as torture in our narrow, legalistic definition of the word.” Just because the law permits it, it doesn’t make it right. This, of course, is exactly what John McCain did in Congress in 2005.

Indeed, the point is clearly made in the already morally dubious argument provided by the Reagan administration that Bybee cites to highlight this distinction between torture and other acts. Torture, they argued, is “to be distinguished from lesser forms of cruel, inhuman or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally or categorically condemned as to warrant the severe legal consequences that the Convention provides in case of torture.” Deplored and prevented, not defended and encouraged!

Second: I cannot believe that anyone except the most ahistorical and legalistic mind can truly believe that the Framers’ decision to leave the prosecution of war in the hands of the executive branch was intended to give the president dictatorial powers in time of war. The constitution was founded by a group of individuals profoundly committed to limiting the scope for executive tyranny, which was the whole intention behind the – now sadly anachronistic – system of checks and balances. Because the question at the time was primarily whether a war was just or not, power over the decision to go to war was passed to congress. This was a clear statement of intent that the president should not, even in times of war, ride roughshod over the principles of justice and accountability on which the system was built, even if the speed of war might require the president to act without immediately consulting congress.

Since the Johnson era, if not as far back as Wilson, the decision to go to war has in practical terms been ceded by the legislature to the executive: which is a failing on their part. But, as with my first point, the legal conclusion that the constitution gives wide latitude to the president to conduct warfare should not be sufficient to show that the president is free to order his people to torture. If anything, it is evidence that the power of the president during times of war needs to be legally contained.

It’s a dangerous thing to talk of the banality of evil outside the context of the Holocaust and genocide. But it’s indubitable, reading this memos in detail, that the Bush White House was governed by a legalistic mentality which seems entirely to fit with its approach to going to war in Iraq. In this worldview, law is not a distillation of moral conduct but a set of constraints on otherwise free action. The function of law is not, then, to clarify appropriate behaviour, but to something be got around. The self-serving conclusion that X, Y, and Z do not compare with grosser acts of torture, refracted through this mindset, ends up leading them to conclude that it’s ok to be cruel, degrading and inhumane.

In this context,  the legal decisions passed on to them by Bybee, Yoo and others are only enabling acts. The real crimes were conducted by the people who ordered the CIA to behave in the way it did. The real crimes were committed within the White House.

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