What is torture? The dictionary defines it as “anguish of body or mind: AGONY.” Unfortunately, there are still a lot of vague terms stuffed in there (anguish, agony, etc.). When does unpleasantness become agony? A legal definition might be more specific. The 1984 Convention Against Torture, which the U.S. signed, defines it as follows:
For the purposes of this Convention, the term "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...
Under this parameter torture doesn’t have to be physical, but the pain or suffering must be “severe.” Obviously, if the definition hinges on the word “severe”, different people will have different opinions of what constitutes torture. There is judgment involved. But, how should the United States legal system judge what is severe? Should it be left to the judiciary? Congress? The President? Our concept of judicial review suggests it would be up to the United States Supreme Court. However, the legal scholars at Slate have come up with a fascinating theory. They believe the definition of torture falls to…. Susan Crawford.
Now, I’m not objecting to anyone having an opinion of what constitutes torture, and Ms. Crawford is just as entitled as anyone. But, why does Slate make this specific military lawyer the final arbiter? (Slate even claims "the Susan Crawford interview changes everything we know about torture"). Here's their explanation:
What changes as a result of Crawford expressly using the word torture? First, the administration can no longer hide behind parsing the language of the Geneva Conventions and the torture statute. Whether or not Michael Mukasey is willing to call water-boarding torture—as the president-elect did on Sunday—a reputable senior military official has put that label on conduct that is arguably not as bad and has been widespread in Afghanistan and Iraq. In her interview, Crawford acknowledges that it was "the combination of the interrogation techniques, their duration and the impact on Qahtani's health that led to her conclusion. 'The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. … This was not any one particular act; this was just a combination of things that had a medical impact on him. … It was that medical impact that pushed me over the edge' to call it torture." What Crawford has done here is astounding. She has repudiated the formalistic (and perennially shifting) definitions of torture as whatever-it-is-we-don't-do. She has admitted that there is a medical and legal definition for torture and also that we have crossed the line into it.
As you can tell from this paragraph, the previous debate between liberals and the Bush Administration has gone something like this:
Liberal: You committed torture!
Bush official: No, we didn’t.
Liberal: Yes, you did!
Clearly, this goes nowhere. Slate is excited, though, because they have found a government official who agrees with them. Of course, the official came to her conclusion by looking at the medical impact of the interrogation rather than whether the suffering was severe, but you can’t have everything. The fact that the official “admitted that there is a medical and legal definition for torture and also that we have crossed the line into it” is “astounding” and good enough for Slate. Whether it might not be the right definition or standard is hair-splitting. The fact that it wasn’t any specific act that led Crawford to her conclusion, but a combination of things, emphasizing that this is merely one person’s opinion, is irrelevant for Slate.
Crawford’s opinions, which were made in an interview with Bob Woodward, are so definitive that Slate concludes the following (emphasis added):
Whatever her reasons for speaking now—the fact that she chose to do so with a journalist whose name resonates around the globe and is indelibly associated with presidential criminality—itself changes the terms of the debate. Whether torture occurred and who was responsible will no longer be issues behind which senior members of the administration and their lawyers and policymakers can hide. The only real issue now is: What happens next?
[snip]
Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.
You got that all you hot-shot DC lawyers? When you're defending Cheney & Co., you can forget about making your simplistic legal arguments, because what constitutes torture is no longer an issue. Crawford has spoken!
Sarcasm aside, I believe in the rule of law. When people claim interrogation techniques rise to the level of torture, I take the accusation seriously. When critics merely label techniques as "torturious" without defining torture, I lose interest. But, when the so-called defenders of the rule of law use the opinion of one person as the definer of said law, I grow hostile, for they are undermining the law itself. Cheney earned his position through a national election - why on Earth should Crawford's definition trump his?