Tuesday, November 08, 2005

It depends on what the meaning of "torture" is.

When former President Clinton said, "I did not have sexual relations with that woman." He pulled a technical trick that allowed him to say that he did not lie --- technically. He redefined "sexual relations" so that it included only intercourse. It did not include oral sex, which fell outside of the meaning of "sexual relations" as he was using the term. Republicans accused him of lying anyway, because the meaning of a term is not determined by some private meaning a speaker decides to assign to it, but by what the hearer would think that the speaker was saying. On these standards, "sexual relations" includes "oral sex."

Now, President Bush tells us, "We do not torture." In doing so, he pulled a technical trick whereby he can say that he did not lie -- technically -- in saying that the United States does not use torture. To do this, he redefined 'torture' to mean 'the unlawful treatment of a prisoner'. According to the Bush Administration lawyers, the only type of treatment that the law prohibits is that which causes permanent organ failure or death. Since, we may assume, that current treatment does not result in any of these effects (which, I hasten to add, we have been assured of, but we do not really know), then none of this treatment technically counts as "torture", on the Bush definition.

It all depends on what the meaning of 'torture' is.

Meaning and the Law

Apparently, "torture" does not mean subjecting a prisoner to excruciating pain, if that pain did not result in organ failure or death. Peter Brooks, writing for Slate, wrote about the twisted logic that the Bush Administration used in order to define its interrogation techniques as “legal”. The task, in this case, is to scour legal documents for definitions that suit the purpose, then tie them together in a way that gets a preferred result.

As Mr. Brooks pointed out, the methodology that the White House lawyers came up with to explain that there is no torture without organ failure or death is the same general rule of law that governs their philosophy of law in general. This is the methodology that advises their choice of Justices, including nominees to the Supreme Court. This procedure – that of looking through texts and interpretations until finding one that fits a desired conclusion – is the essence of “original meaning” that prevents judges from legislating from the bench, or so we are told.

The Implications of Bush’s Definition of Torture

As if the plain meaning of the language, in this case, meant that no person who did not suffer death or organ failure was ever tortured.

I would like Bush to stand in front of a room full of Americans who spent time in a North Vietnamese POW camp (including Senator John McCain) and say to them, "All of you soldiers who are still alive and who have suffered no permanent organ failure as a result of your captivity . . . none of you were tortured. It does not matter how painful your experience was. It does not matter how much discomfort you were subjected to. You were not officially 'tortured' unless you suffered permanent damage."

I would like to see if they would agree with him.

It is also important to note that, if this is going to be the official American definition of torture, then, in any future war (or, even, any war we fight in today), consistency would demand that we apply the same standards. So, I would also like Bush to say to all currently-serving soldiers, "If you were ever to be captured by the enemy then, no matter how harsh your treatment or what they do to you, if they do not subject to you to permanent organ failure or death, then we will not protest that you are guilty of torture."

In fact, Bush has to be interpreted as saying this to every American citizen. "Bush is saying to us, 'If anybody should kidnap or capture you -- say, by hijacking an airplane or simply grabbing you off of the street -- they may subject you to any form of treatment short of permanent organ failure or death, and the American Government will have no grounds to make any formal protest. This is because we have already adopted as a matter of policy that any form of ill treatment that falls short of this limit is legitimate."

This is what your President told you on Sunday, that any treatment short of organ failure or death that you may suffer at the hands of a foreign national is not torture, because Americans subject its prisoners to this type of treatment, and Americans do not torture.

Whatever this President allows to be done to foreign nationals, is exactly what he is telling those foreign nationals that they may do to Americans.

An End, and a Means

Within the same speech in which Bush gave his defense of America’s treatment of prisoners, he also said that the government has an obligation to protect American people, and that “anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law.”

In the White House Statement of Administration Policy given on July 21, 2005, the Administration said that it opposes any legislation that “would restrict the President’s authority to protect Americans effectively from terrorists attack.”

This is a very broad request. In fact, it is reasonable to assume that any restriction on the President at all – restrictions such as laws, or the need to obtain the advice and consent of the senate – any and all restrictions would restrict the President’s authority to protect Americans effectively from terrorist attack.

Which then raises the question: Do we have a President who favors dictatorship over limited government?

Face it, the 4th Amendment restrictions against unreasonable search and seizure and requiring probable cause, the 5th Amendment requirement requiring warrants and due process of law, and to 8th Amendment prohibitions on cruel and unusual punishment, are all limitations on the President’s ability to protect America effectively from terrorist attack. Given the reasoning that Bush is using, if he had been president at the time of that first session of congress, would Bush have had a White House policy that recommended rejecting the Bill of Rights?

Does this President think that placing certain restrictions on the powers of government is a good thing, like our founding fathers did? Or does he think that limiting the President’s power is a bad thing?

What type of American is he?

I guess it depends on what you mean by “unreasonable”, “probable cause”, “due process of law”, “unreasonable”, and “cruel and unusual”. I am certain that, with enough digging, Administration lawyers can find interpretations that effectively repeal these restrictions entirely, given that the President seems to find them too burdensome.

The point is, the President has to think that the list of things worth defending has to be longer than just one item – American lives. American values have to count for something as well. Indeed, a great many Americans have given up their lives in order to protect those values. It is a bit of a dishonor to them to tell them that lives are more important than values. Many of them believed, I trust, that some values are worth dying for.

“The ends justify the means” is not typically found on the list of values worth dying for.

“Torture” is not typically found on the list of values worth dying for.

President Bush needs to recognize that one of the key tools we have for telling the difference between the good guys and the bad guys are their values. “The ends justify the means” and “torture” are not typically regarded as the type of values that help us in distinguishing the good guys from the bad guys.

I would like to recommend that America try being one of the good guys again.


Anonymous said...

Good points. This should be published. Maybe a 'Letter to the Editor'. There needs to be a National outcry against this government that must be acting outside the wishes of it's people.

Radha said...

Clearly thought-out and very well written, AE.

Alonzo Fyfe said...

I thank the both of you for your kind words.

Ironically, I was up late last night thinking that this was one of my worst postings ever, and I almost decided to skip a day -- for the first time since I started this. So, the comments are particularly well appreciated.

Alonzo Fyfe said...


I do not think that life and value can be so easily separated. The statement that "life is more important than a value" is, itself, a value. If your actions favour a life, then your actions still express a particular value.

You may argue that, to you, life has infinite value, and everything else pales in comparison. Yet, I hold that you do not spend every waking moment of every day doing that act which will enhance and protect the most life. I am fully willing to wager that you do things other than save and protect lives. Therefore, you do not act according to the principle that life is the only thing of value.

In fact, it is not. The quantity of life is often balanced against the quality of life. Every day, people weigh the quantity of life against the quality of life, and choose the latter.