A Modest Contribution to the Philosophy of Torture
(An ironic and serious discourse)
First published Sept 11, 2006
Last revised Sept 11, 2006
By Russell Johnston
The "short version" of the Definition of torture under International Law given by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, is that torture "means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." We are stuck with this short version, if any at all, because the original international declaration goes on to become circular, with regard to what is “legal”. We should also note just how large a loophole, and how subject to interpretation the unmodified use of the word "severe" is. Medical convention, for example, commonly advises the treatment of wounds that are not considered "severe" by doctors, and according to medical definitions wounds that are not "severe" can and do ultimately cause death. Subsequent definitions of torture such as the Elements of Crime as contained in the finalized draft prepared by the fifth session of the Preparatory Commission for the International Court held in New York in June 2000 are at first glance much more detailed but turn out to leave the word "severe" intact and equally unexamined, so I think I can be forgiven for resting my summary of the international definition of torture just this quickly, noting that these definitions apply within or without the Geneva Conventions either for regular or irregular conflicts or other purposes.
We should say in defense of the Assistant Attorney General of the United States, nameless only for the moment, that very considerable "running room" has been left within International law; which is after all only what many nations can agree upon and not necessarily what unrepugnant governments on a very good day would agree to. We should not assume therefore, that International Law and Definitions either amply state, carefully define, or even marginally approach, a reasonable or ethically sound definition of torture. It is fair to say that they do not yet do so, and that even a sincere attempt to clarify the highly general, and in truth profoundly ambiguous word "severe", within International Law lies somewhere in the future. There may even arrive some joyful future date when even the intentional inflection of pain that is “pretty damned bad” on confined prisoners will be outlawed as well; although of course broad exceptions would then have to be made for reality television shows. To be too flip, perhaps separate “Los Angeles Accords” could be formed to cover these entertainment-related cases; although on a cautionary note, we should remebered that many of the participants in Roman gladiatorial entertainments volunteered, as well. Perhaps it would be imprudent, here, to go entirely overboard when it comes to kindness – and it would certainly be impolitic to simultaneously make enemies not just of the world's most powerful and terrible armies, but a great many advertisers as well.
It should be noted for completeness that "Committing outrages upon personal dignity, in particular humiliating and degrading treatment" is a war crime under Article 8 of the Rome statute of the International Criminal Court, 1998, rather than being defined as torture. However, and in any case, the present Administration does not hold the conflict it is engaged in is a regular war and may still feel that what would otherwise be war crimes are, with regard to such an unusual conflict, too high a standard. Since the Administration's initial key summary definition of torture is what concerns us here, the Administration's policy on humiliation will not be further discussed, despite being intrinsically quite interesting – particularly, needless to say, to those wearing the borrowed panties.
To begin at the beginning, it was a document written by Assistant Attorney General Jay S. Bybee that summarized the statutes against torture and legally defined the perhaps otherwise obscure word “torture” for the President and his subordinates, including the military forces of the United States. That is, this document defined what would be legally allowable in the war against terrorism. In it Bybee defined torture as abuse that resulted in pain ''of such a high level of intensity that the pain is difficult for the subject to endure.''
Additionally, outside this nutshell definition, the Assistant Attorney General further excused actions performed only secondarily for sadistic pleasure, or not for sadistic pleasure at all, if they might result in information being obtained "even if the defendant knows that severe pain will result from his actions.'' Which at least comes close to proving the impossibility of torture, by definition, as a governmental activity, except perhaps as a deterrent. With regard to death threats ''the threat must indicate that death is 'imminent.' '' [in order to be forbidden]! Of interest to philosophers, slow poisons such as Hemlock may pass muster. Presumably threats of death to relatives or infants of the prisoner, or telling the prisoner that their children had already been killed and perhaps eaten by the interrogators, together with some convincingly gruesome theater to persuade them of this, or merely telling the prisoner that they had already been given a slow-acting poison for which no antidote existed, would also be in the clear. [The reader should not imagine that these techniques are products only of imagination.]
According to the New York Times' Andrew Sullivan "Bybee argues that a case of kicking an inmate in the stomach with military boots while the prisoner is in a kneeling position does not by itself rise to the level of torture." Despite this author's having been so kicked in the past, albeit by more civilian boots and, sadly, a few inches further down, I nevertheless find this example so ambiguous as to be almost uninformative. As some of us who may have glimpsed either poverty or war and it's concomitants are unfortunate enough to know: there are kicks, and then there are kicks. It is not at all unknown, for a victim to die subsequent to receiving even just one italicized kick. At a guess, the Assistant Attorney General may have been less than fully acquainted with italicized circumstances. (It would be entirely churlish and unkind to add: “But the century is young”.) [Cited quotes are of the Assistant Attorney General, but are also borrowed from the same article in the New York Times: "Atrocities in Plain Sight" by Andrew Sullivan, January 13, 2005 http://nytimes.com/2005/01/13/books/review/books-sullivan.html?pagewanted=2
Bearing in mind these other illustrations and examples to the extent that they might be helpful, it may be useful to limit our focus here to the single somewhat curious phrase "difficult to endure". Other points upon which to focus analysis are of course more than possible, notably Bybee's use of the word "intensity". To be far too flip for this topic: if Bybee were much younger and perhaps overly influenced by recent changes in meaning of a now common synonym of the word "intense", one simply shudders to think of what he might have meant by saying the legal equivalent of "awesome pain". Thankfully, it's unlikely Bybee's vocabulary has been much influenced by this contemporary alteration in usage. Moreover, since the phrase "difficult to endure" in Bybee's definition of torture is clearly meant to be the final and cumulative clarification of the preceding terms, including "intense", it seems reasonable enough to isolate that one phrase from the sentence defining torture, in order to begin to decipher the Attorney General's meaning, insofar as it was his aim to be unambiguous.
The Central Question:
Our central question then, now that we have arrived at it, is: What was meant, and what was meant to be understood by Bybee's phrase "difficult to endure"? Note that we shouldn't simply assume that a single explicit meaning was in the mind of the writer, or that it was meant to have a single meaning for all readers at all times; so we have to leave open the possibility, for discussion at least, that it may have been deliberately phrased to be ambiguous or equivocal. Rumors of similar happenings within political contexts have been rife for some time now, I would ironically note. Nor should we discard without examination the possibility that it says everything - that is, that it is in fact self-contradictory.
Even so we might ground our discussion with a bare mention of the range of the possible singular meanings of the characterization of pain from abuse as being "difficult to endure". The possibilities, at their extremes, range from weakened meanings that the phrase might have in ordinary conversation: say, pain which could impair job performance - with lower standards during playoff season - or pain sufficiently distracting as to interfere with the normal conduct of life: say by noticeably limiting one's usual enjoyment of a favorite TV program, all the way to that other extreme of: "pain difficult to physically survive, or which is likely to cause the subject's suicide given adequate opportunity and means." Or perhaps: "was the immediate cause of unconsciousness in the prisoner" (since those who are unconscious may better be said to persist, rather than endure, save in the now-archaic sense of “endure”. (Some Aristotelians may wish to substitute the word "efficient" for "immediate" in the preceding sentence). I am tempted to by the common rules of usage to discard the possibility that what is meant by “endure” could be “persist at all”. However some similar variations of the possible interpretations of the given definition can't be discarded offhand, if only because suicides and attempted suicides have apparently not been uncommon in the detention facilities concerned, nor have deaths in custody.
While it may not be possible to arrive at a single plausible interpretation of this key phrase in the history of the Bush II Administration, we may be able to judge which interpretations are most likely, what might have been in the mind of it's author, or perhaps, from the multiplicity of very plausible interpretations, the very intentional clarity of the author in the first place.
In this task, George Bush II, has not been helpful, as is forcefully argued by a current (Sept. 7, 2006) CBS commentary by Dick Meyer. [“Torturing The Truth: President Bush Has Lied And Continues To Do So” http://www.cbsnews.com/stories/2006/09/07/opinion/meyer/main1981479.shtml]
The president's latest clarification on Sept 6, 2006, which explicitly respected the secrecy of the particular techniques applied to the prisoner Abu Zubaydah stated only that “I can say the procedures were tough, and they were safe, and lawful, and necessary.” Even the veracity of this vague statement has been heavily questioned [“Bush lies about Ramzi Bin Al Shibh, Abu Zubaydah and Torture:”, by Spencer Ackerman, The Plank, http://www.tnr.com/blog/theplank?pid=36597] and "We tortured an insane man", Salon [http://www.salon.com/news/feature/2006/09/07/suskind/].
It goes without saying, that all procedures are lawful which no law addresses, and that the President has an expansive view of when the Chief Executive's actions are perforce legal simply because he is the President. We cannot even assume that when the President claims that the Geneva Conventions are being respected, he does not mean “since this is not warfare as stated by those conventions, those accords are fully respected by being ignored.”
So to begin without his help, is there a sensible meaning here to discuss, or does the phrase “difficult to endure” simply render the administration's definition of torture self-contradictory? That is to ask: is pain, in the way we commonly use that word, by its very definition, ever something "easy to endure", as are some sorts of discomfort? I wish to say that clearly, in ordinary usage, at least in some contexts, some pain cab in fact be said to be “easy to endure”. For example, we can imagine some cramping from muscle fatigue or the build-up of lactic acid in our muscles happening while climbing up a mountain. Our climbing partner, seeing evidence of that pain on our facial expression, asks us, "Can you endure it?": meaning; can we finish the climb or do we rather wish to turn back. To which query and we respond, "Easily.": meaning that we expected this much discomfort and won't have difficulty finishing the climb, even if we may not want to talk about it a lot right now, thanks so much. We have said in so many words, in proper English that the pain "was easy to endure", and been understood. While this may be an extension of the meaning of “easy”, extensions happen, so it seems not unreasonable to proceed to the conclusion that the Assistant Attorney General's definition of torture is not self-contradictory. (Arguably, extensions of meaning by lawyers are more frequent than by the general public, not less, and even expected.) However, before we do accept this conclusion, we have to consider one more caveat.
To continue our example we might say of the same climber's pain (or pain of precisely that degree and kind) if it persisted for months or years (as can happen with certain genetic diseases of the connective tissue such as Ehlers-Danlos Syndrome) and made, for example, intellectual work considerably more difficult by affecting our short-term memory or just by being distracting, that this same level of pain was "difficult to endure". We would mean, at least, that it made some of our daily or common or important activities more difficult. So in our remark from the mountainside, we haven't necessarily said that our pain was easily endured for long periods.
Human language is of course extraordinarily contextual. In the case we've cited, the word pain is arguably contextual with regard not only to the time period considered, but also our expectations of discomfort when we began the climb, the purpose and importance of the actions that caused it, perhaps the stoic standards of our partner, and even his knowledge of our standards of stoicism, and doubtless still more contexts. We cannot even wholly discard the possibility that "easy to endure" might have a slightly different meaning to admirably manly climbers in Texas, as opposed to, say, for example, the more finely parsed climbers of, let us suppose for this example, Massachusetts or Maine; if the reader will excuse the stereotypes.
So we should not be surprised that what counts as either "pain" or "pain difficult to endure" may change at least slightly according to the context of the remark, such as the time period considered or expected, etc. Notably, it is worth remembering a corollary during the discussions that follow: namely that the omission of context can be a source of ambiguity or confusion, either deliberate or inadvertant. For example: as the Assistant Attorney General wrote that sentence defining torture, was he conscious of any (or of any unusual) context; and if so did he have in mind the context that his likely readers would find themselves in, settled in comfortable government offices in upholstered leather chairs with numerous levers available for ergonomic adjustments, or a less the somewhat less well-appointed detention centers? For example, was he writing with expert readers in mind, i.e., for those who had actually experienced explicit training in torture techniques, including being subject to those techniques, however briefly, as part of that training?
Most aptly, for the purposes of our present consideration of self-contradiction: was there an unavoidable context for Bybee's statement, within which the statement is in fact a self-contradiction in the same way that the statement "Can you feel your pain at all?" would be in some circumstances? Or on the other hand, was there instead, at the time of his writing, a very plausible context that renders his remark without any question, as meaningful?
It would be prudent at this point to note that for most of us, simply being detained particularly for long, or worse, unknown periods is "difficult to endure" in some not unlikely sense of that phrase. We would not, I think (for the most part regardless of political affiliation) laugh out loud if a prisoner detained according to the Geneva Conventions wrote to their family - and the Geneva conventions do allow correspondence - "I find my detention just by itself, difficult to endure." We would, almost uniformly empathize with this sentence, not be puzzled by its semantics. After all, if imprisonment were not "difficult to endure" in some sense, then simple detention (that is, without abuse) would not be used around the world in order to deter people from very serious and even highly profitable criminal acts.
So, can Bybee's use of "difficult to endure" in this context survive as meaningful if the detention making the abuse or "pressure" possible, is or can be, in and of itself "difficult to endure"? We should conclude it it is in fact consistent, if the context of imprisonment was in the mind of the Attorney General and his readers and was discounted by them, or if you like, taken into fully into account, and if they (consciously or unconsciously) expected each other to do this without comment, thus transforming the meaning of the word "difficult" to that of: "difficult, even relative to a statistically-normal prison environment." This seems quite reasonable to the author. It remains that treatment causing immediate unconsciousness such as severe electrical shock provoking extreme pain more than qualifies as “difficult to endure”, and to press the point, if the reader will pardon the pun, would so qualify whether the interrogator was skilled enough to repeatedly find the exposed genitals of the prisoner, or not.
We have concluded, that obviously, within a prison context, "difficult to endure" is at least somewhat strengthened in it's meaning. Given the possibility of this interpretation of the definition within a prison context, we can I believe conclude that the legal definition of torture given by the Attorney General is not a single-statement contradiction. However, given the difficulty that detention itself imposes on prisoners, and unless some other reasoning can also be put forward which allows Bybee's statement to be seen to be without contradiction, we must by the same token conclude that his remark was in fact meant to refer to pain stronger or even much stronger than similar ordinary remarks by us about pain, might.
We have now discarded the possibility that Bybee willfully penned a contradiction (as opposed to uinformative, ambiguous or equivocal definition) since we have already given at least one consistent interpretation of the statement, within an obvious and plausible context, that renders the definition meaningful. It may be reasonable to say that no-one with enough acumen to become Attorney-General, even given the current state of the democratic electorate, could be both dense enough not to see any context within which their own remark was meaningful, and shrewd enough to know the political value of issuing a contradictory statement, both at the same time. A meaningful interpretation is simply too obvious. We may apply at least this much of a philosophical "principle of charity" – whatever our suspicions about how much charity Mr. Bybee might extend to us should we fall both under his jurisdiction, and his suspicion.
To repeat, we have not yet shown the absence of ambiguity or equivocation, and it may not be too much to say that while truly kindly and intelligent people could be supposed by some not ever to equivocate; clearly intelligent administrators do sometimes equivocate. Perhaps it was Lichtenberg who said long ago that intelligent people do not have to lie – precisely because they have other means available to them. I have even known one entrepreneur who expanded equivocation into an entire and extensive theory practice of management in all its aspects; who was in every other way intelligent, but whose company has since ceased to exist, unequivocally.
Weak interpretations of the definition of torture
Now despite having by this point discarded the weakest possible interpretations of Bybee's definition of torture, even without considering his illustrations, we should quickly mention at least some of these discarded interpretations if only so as to be sure that we agree roughly about what should count as those weak enough to discard – that is, those which cannot be what the Assistant Attorney General meant to convey.
Perhaps the weakest interpretation would be to render "difficult to endure" as: events the subject would "prefer not to endure", "not willingly endure without consideration", or "would tend to cause the subject to leave the room". This rendering, surely, is easily discarded, if only because "difficult to endure" is clearly meant to be subsumed by "intense" and thus must mean, at the very least, intense. And of course, in the cases we are now considering "leaving the room" might have proven difficult.
Secondly, amongst our discarded weak interpretations, one might have suggested "the least pain that any person of any age above infancy would find, or say that they find, difficult to endure" or "don't do anything that would worry even a hysteric or someone suffering a histrionic or borderline personality disorder." Not just subsequent events suggest that the Assistant Attorney General of the United States and his superiors did not intend to dramatically limit what interrogators could do, well beyond the strictures of the Geneva Conventions. etc. Quite the reverse. We can certainly discard this or similarly "liberal" interpretations.
Another possibility is the comprehension of "difficult to endure" as meaning "pain stimulation you couldn't get most poorly paid subjects of a medical pain study to endure.” While College students may be made of sterner stuff than once upon a time (having by now suffered repeated mishaps in the half-pipe) we should discard this possibility too - since it's not likely that a study all about being kicked with military boots could go forward without a fairly high dropout rate, even at State Universities. Perhaps especially at State Universities.
Going on to only slightly more plausible interpretations of Bybee's definition of torture:
Since there have been Sufi saints such as Al-Arabi, and Nuri (who offered himself in the place of Raqqam) famous for having having found even execution itself not difficult to endure, being visibly unperturbed by the prospect, and other accounts of those who have smiled throughout torture, amongst native peoples and otherwise, we should not interpret the phrase as intending to allow any and all conduct that at least one human could possibly suffer unflinchingly, or without showing great disturbance: else the Attorney General truly has, not so much defined torture as proven it impossible and a nonsense term. While administratively convenient, this would contradict other signed treaties and statements that implicitly assert that at least some one kind of activity must in fact count as torture for the Government of the United States. So we must logically discard this interpretation as well.
This leaves (at least) the possibility that it was intended that abuse no greater than what most prisoners could endure without visible distress, become the intended standard. However, photographs belie this and it must be presumed difficult to "break" prisoners without altering their facial expressions here and there.
There is at least one strong definition we should also in all fairness discard, namely the possibility that Bybee meant "pain difficult for the interrogator to endure witnessing", not so much because such fellow-feeling seems in fact not to have been a common or significant barrier limiting how prisoners were (and perhaps are) treated at various detention centers where (what the administration later characterized as) torture or illegal abuse occurred; but because, even disregarding the lack of context directly suggesting this, the Assistant Attorney General surely could not have been unaware of all very nearly all of: history, Millgram's experiments regarding torture, and the possibility that at least one interrogator might have the personality traits of a sadist or psychopath; and therefore he could not possibly have been concerned only that the interrogators not be too much discomforted by what they were doing and thus having to witness as well. Surely even a weak principle of charity must grant this much, even if it were thought that such a blanket absolution cannot be given to all members of the administration.
Stronger and more plausible definitions of torture
Our difficulties in understanding the Assistant Attorney General still remain. Even charitably crediting the U.S. Government with not wishing to issue an equivocation, we are left without having made much progress in our quest to clarify the limits of what the present government intended to allow. For to succeed we must find at least one person, if not a quorum of reasonable people, who after being kicked, and perhaps repeatedly kicked, in the stomach with military boots, would say that the experience was "easy to endure", or at least "not hard to endure", simply in order to take even one further step in that quest. Otherwise, we have a flat contradiction, which as I have said earlier, however convenient (as well as darkly evil) is something the government just wouldn't do to us, nor more than God would tease Descartes. At this point it must seem an obvious procedure to the reader to go comb through the Iraqi population for ex-prisoners who would cheerfully assent to this assertion, but alas, I have an intuition that such a project would be doomed. (Possibly in more than one way, but at least, doomed to failure.)
Our one last hope of clarity may then be to examine the question of context further, in order to clarify Bybee's definition of torture: After all, it is now well know that the two sexes, as well as the population in general, may not even possess precisely the same biochemical or neurophysiological pathways for pain. Studies have shown, for example, that even some common analgesic drugs have very different efficacy for men and women, and therefore, drug testing protocols now insist on the inclusion of subjects of both sexes. Additionally (it will instruct no-one to say) many have learned, both in and out of prison, or fraternities, to endure pain to various degrees.
One is, mischievously, tempted to suggest in this light, that the intended meaning of the Attorney General's phrase can in truth only be closely determined by examining empirically and in considerable detail what his own personal pain thresholds are, particularly at the extreme cutting-edge range of the spectrum he described and condoned; although of course the doctrine of methodological conservatism in science would compel any conscientious researcher to go beyond just that much pain, in order to be quite certain that the negative hypothesis had been disproved, as it were.
It might even be thought necessary (for completeness) to test the upper pain thresholds of all those who received Bybee's document and later governed their conduct by it, although - if for no other reason - present academic funding limitations and bothersome ethics committees make such an extensive trial unlikely. However seductive these suggestions are, by which I mean of course to say, however logically seductive they are - purely in the interest of semantic completeness one understands - I do hope the International Courts will note (should I now find myself in front of them) that I, here, do not in fact suggest this empirical procedure, even as a matter of Philosophical thoroughness, for reasons not necessarily limited to the expense or lack of cooperation of the intended subjects. In fact, I do not even recommend such a procedure even under the understanding it might result in useful information.
I am however tempted to suggest that one Impeachment while no doubt "difficult to endure" for those impeached; would be humane. Or perhaps felony trials, as advised by Nat Hentoff of the Village Voice [http://www.villagevoice.com/news/0636,hentoff,74349,6.html.
Until then, In summary, we may say (with abject apologies to the Victorian writer Charles Lamb) that President Bush II has unequivocally outlawed torture – if anyone can discover what that is.
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