Marty Lederman, in his analysis of the “compromise” on the detainee legislation, agrees that the compromise will legalize the CIA’s use of their “alternative methods” that constitute psychological torture:
Perhaps most importantly for purposes of U.S. compliance with our treaty obligations, the “compromise” bill would appear to provide a unjustifiably narrow interpretation of the “cruel treatment” that is prohibited under subsection (1)(a) of Common Article 3.
To be sure, section 8 of the bill would purport to establish “cruel or inhuman treatment” as a “grave breach” of Common Article 3. So far, so good. And such treatment would be defined as “[t]he act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.” This is contestable, but not necessarily objectionable in and of itself.
The bit about severe physical or mental pain or suffering merely tracks what is already prohibited under the U.S. torture law. And we have good reason to believe that the Administration has construed that prohibition not to foreclose the use of Long Time Standing, Cold Cell, threats, other stress positions and sleep deprivation, and even waterboarding. Therefore, that part of the definition doesn’t accomplish much, if anything.
So if this definition is going to do any independent work at all, it would have to be with respect to what it calls “serious physical or mental pain or suffering.” But do the definitions of that phrase cover any or all of the “alternative” CIA techniques? More importantly, do they cover all “cruel treatment” under Common Article 3?
I’m afraid that they won’t.
The bill would define ˜serious mental pain or suffering” to be basically coterminous with the term ˜severe mental pain or suffering” under the torture act, except that as to conduct occurring after this law is enacted, the definition would cover conduct not only intended to result in “prolonged mental harm” (as is the case under the torture statute), but also conduct intended to result in “serious and non-transitory mental harm (which need not be prolonged).” What does it mean for “serious” mental harm to be non-transitory but also non-prolonged? The bill does not say. Between transitory and prolonged falls . . . the shadow.
More important is the bill’s definition of ˜serious physical pain or suffering.” One would think that, on any reasonable understanding of ordinary language, the “alternative” CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering — and the prospect of ending such suffering by telling one’s interrogators what they wish to hear — is the whole point of using such techniques in the first place. But remarkably — and not accidently — the bill’s definition would not cover all such actual “serious physical suffering.”
The definition would require, for one thing, a “bodily injury” — something that would not necessarily result from use of the CIA techniques — even though one can of course be subject to great physical suffering without any “physical injury.”
What’s worse, such physical injury would also have to “involve” at least one of the following:
(1) a substantial risk of death;
(2) extreme physical pain;
(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or
(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
As you can see, this definition simply does not cover many categories of actual serious physcial suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.
The result, unfortunately, is a very constrained conception of what constitutes “cruel treatment” — a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide. And therefore the bill would appear to exclude from the definition of “cruel treatment” many cases of actual cruel treatment prohibited by Common Article 3. And when that occurs, it is likely the Executive will construe the statute — and Common Article 3, as well — to permit some forms of cruel treatment that Geneva in fact proscribes, i.e., the “alternative” CIA techniques. Indeed, it’s happened already: The ink was hardly dry on the draft when numerous Administration spokespersons were gleefully informing the press that the bill is a green light to the CIA to reinstitute the “alternative” techniques that Hamdan had effectively interdicted. Byron York has gone so far as to relate that “both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques,” even though such techniques do, in fact, constitue a breach of our Geneva obligations.
For a better understanding of these techniques, their development through years of CIA-sponsored research, and their propagation around much of the world, see the essential book A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror, by Alfred McCoy. [See also McCoy's summary on Democracy Now!] For information on the use of these techniques by U.S. forces and the effects of these torture techniques, see the detailed Physicians for Human Rights report: Break Them Down: The Systematic Use of Psychological Torture by US Forces:
Psychological torture and cruel, inhuman, and degrading treatment can have extremely destructive health consequences for detainees. The effects can include memory impairment, reduced capacity to concentrate, somatic complaints such as headache and back pain,
hyperarousal, avoidance, and irritability.257 Additionally, victims often experience severe depression with vegetative symptoms, nightmares, and “feelings of shame and humiliation” associated with sexual violations, among others.
Thanks to the GOP “rebels,” these techniques will now have Congressional authorization. Further, the tortured will be stripped of all rights to protest their detention or their torture in the courts. Lets hope we don’t get too many “rebels” like these. What veneer of “civilization” remains won’t survive it.
September 23rd, 2006