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10 Oct 2007 01:33 pm

Defining Torture Away

Bret Stephens argued in a Wall Street Journal piece yesterday that the European Court of Human Rights had ruled that several of the techniques used by the Bush administration in interrogating prisoners do not amount to "torture". Let us leave aside the exquisite irony that the Wall Street Journal is now invoking not American law (because they cannot) to redefine torture, nor even English law (ditto), but one ruling on appeal of the much-detested European Court to decide what U.S. law is and should be. The case is much, much less than Stephens made it out to be - and the result maintained the clear illegality of some of the mildest techniques adopted by the US to torture prisoners suspected of terrorism. All the British legal authorities and the British government and the European Court and the European commission found that the five techniques cited were illegal under British and European law - separately or in combination. The British government's own inquiry found the following:

We have received both written and oral representations from many legal bodies and individual lawyers from both England and Northern Ireland. There has been no dissent from the view that the procedures are illegal alike by the law of England and the law of Northern Ireland. ... (d) This being so, no Army Directive and no Minister could lawfully or validly have authorized the use of the procedures. Only Parliament can alter the law. The procedures were and are illegal.

We know that the WSJ believes that the president has the authority to ignore and suspend the rule of law indefinitely. The Brits and all other Western democracies didn't. The British government moreover immediately banned the suspect techniques after they were used against 14 prisoners. It is worth noting that none died during the torture, whereas we have at least two dozen cases in the US under Bush in which the government itself concedes that prisoners were tortured to death; and well over a hundred have died during interrogation under suspicious circumstances. The five techniques in question were as follows:

"(a) Wall-standing: Forcing the detainees to remain for periods of some hours in a 'stress position,' described by those who underwent it as being 'spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.'

"(b) Hooding: Putting a black or navy colored bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation.

"(c) Subjection to noise: Pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise.

"(d) Deprivation of sleep: pending their interrogations, depriving the detainees of sleep.

"(e) Deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the center and pending interrogations."

Notice that the stress position used here, though clearly torture under U.S. law, is far milder than the manacled stress positions used at Gitmo, Abu Ghraib, Bagram, Cropper and elsewhere. Notice also that hooding was viewed as highly controversial, and subsequently banned by the Brits. It is openly used by the US throughout the theater of war, and no one even objects. The noise is mild compared to the Bush-Cheney methods. And the sleep deprivation is nothing like the months of sleeplessness used against some at Gitmo (and pioneered by Stalin). Nonetheless, even these milder techniques were subsequently reviewed by the European Commission on Human Rights which

considered the combined use of the five methods to amount to torture, on the grounds that (1) the intensity of the stress caused by techniques creating sensory deprivation "directly affects the personality physically and mentally"; and (2) "the systematic application of the techniques for the purpose of inducing a person to give information shows a clear resemblance to those methods of systematic torture which have been known over the ages... a modern system of torture falling into the same category as those systems.applied in previous times as a means of obtaining information and confessions.

Stephens is correct that on appeal, the European Court eventually ruled that although the techniques were illegal under EU law, and amounted to "inhuman and degrading" treatment, they did not quite meet the standard for the word "torture." Nonetheless, the British government reiterated its disavowal of all such techniques.

So Stephens is arguing that the American standard should be far lower than the British standard; and that techniques that the European Court ruled were illegal should be adopted by the US; and, of course, that this narrow semantic ruling whould now be used to justify far worse methods used by the Bush-Cheney administration: water-boarding, repeated beatings, chained stress positions, permanent hooding, total isolation for months on end, dietary manipulation, hypothermia, extreme heat, and sleep-deprivation for weeks on end. Stephens, I'm sorry to say, is clutching at straws. The honest argument for those who support torture is to propose legalizing it, to define explicitly what is now allowed, and to get the Congress to revoke the current laws on torture and to leave the Geneva Conventions. If Stephens really believes we need to do this, he and his editorial board should have the decency, if that is an appropriate word, to propose it.

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