The matter of torture has raised its ugly visage once again last week, this time in the hearings for President Bush's nomination for the post of Attorney General, Michael Mukasey. Mukasey was asked whether waterboarding was torture, in response to which he wiggled and waggled and never answered the question, an evasion which cast momentary doubt upon his confirmation.
What Mukasey should have said is that the question the Senators asked really can't be properly answered until Congress has legislatively established a meaningful definition of torture. Everyone is "against torture" in the abstract, of course, but few can say with any precision what torture is and under what circumstances, if any, it should ever be permitted.
The United Nations Convention on Torture, which is frequently cited as authoritative and to which we are a signatory, is so vaguely worded as to be not much help. Article 1 says:
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind...
The difficulty is the phrase "severe pain or suffering." What constitutes "severe"? What metric do we use to assess mental pain to determine whether it is severe? What is severe for one person may be easily tolerated by another.
Another problematic construction is the phrase "intimidating or coercing." Anyone who is a prisoner and held under armed guard is going to be ipso facto intimidated and coerced. It would appear that, taken literally, the Conventions rule out holding prisoners.
Article 16 of the document states that in addition to torture all acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1 are also to be forbidden.
But this is no help either. What is inhuman and/or degrading is highly subjective. It is degrading to be yelled at or to be shackled or even detained by another, for heaven's sake. The U.N. Conventions, if taken seriously, make an interrogator who raises his voice to a prisoner subject to being charged with a war crime. This is ludicrous, of course, which is why no one takes the U.N. Conventions seriously. They define torture so broadly that almost anything the military does with detainees could be construed as falling afoul of the guidelines.
As matters stand torture is pretty much in the eye of the beholder. What is needed is for the Congress of the United States to do what President Bush has urged it to do and conduct a debate on these matters and produce more lucid guidelines as to what will be permitted to our interrogators and what will not.
Until then, questions like the one asked of Mukasey will remain pretty much meaningless.
RLC
