Serious

Non-transitory torture legislation

October 3, 2006 2 comments

The Military Commissions Act [pdf] passed by the US Senate last week has been said by many people, including a New York Times leader writer, to authorize torture. How exactly does such an authorization exist in legislation purportedly about the trials proposed for suspected terrorists? Through classic Unspeak, particularly in the use of a single word: serious.

Here’s how it goes. Since the Act is about military commissions, naturally it takes the trouble to define what crimes will be triable by those commissions. In the course of doing this, the Act takes a moment to define what it understands by “cruel or inhuman treatment”. Now, why bother defining “cruel or inhuman treatment”, specifically? Because this is the current preferred gloss on what is outlawed by Common Article 3 of the Geneva Conventions, which requires that prisoners be treated “humanely” and forbids “cruel treatment”, as well as forbidding “outrages on personal dignity, in particular humiliating and degrading treatment”. This fusty old language needed changing, because, in the words of one general, “I don’t know what an outrage on personal dignity is.” And, in case you were wondering, the Act stipulates that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions”. [Sec. 6. (a) (3) (A)] Thus, “cruel or inhuman treatment” is the new interpretation of what is forbidden by Common Article 3. And the Supreme Court has told the US government that its operations are bound by Common Article 3. So the government here gives an indication of what it understands to be the “cruel or inhuman treatment” it will be forbidden from practising:

(12) CRUEL OR INHUMAN TREATMENT.—
(A) OFFENSE.—Any person subject to this chapter who commits 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 shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
(B) DEFINITIONS.—In this paragraph:
(i) The term ‘serious physical pain or suffering’ means bodily injury that involves—
(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty. [§ 950v.]

What is going on here? Well, torture has been defined in section 11 as the infliction of “severe physical or mental pain or suffering”, glossed by appeal to title 18 of the US code. Now, the MCA’s definition of “cruel or inhuman treatment”, normally understood as acts that are not as heinous as torture but still to be abhorred, replaces severe with serious. What is serious?

Well, it appears from (III) above that you can inflict “cuts, abrasions or bruises” as you wish without fear of being “cruel or inhuman” – without being serious. Indeed, it is notorious that American torturers at Abu Ghraib, Bagram and elsewhere have gone about their business in a manner not serious but rather joking, light-hearted, and fun-loving. Naturally, “serious” in this legislation does not have the meaning of earnest or gloomy, but it does put one in mind of the “We were just goofing around” defence.

What, under (IV), counts as “significant loss or impairment” of a bodily member etc? Would, say, losing an ear or a toe count as insignificant under the circumstances? There’s something very vague, isn’t there, about this language of “significant” and “serious”? Almost as though someone would like to raise the bar for what counts as “cruel or inhuman treatment” so that an alternative set of procedures can continue to be used in sessions of the most sensitive questioning. You just have to be creative. After all, it is possible to commit forced partial drowning without necessarily inflicting a “bodily injury”, and if there is no “bodily injury” then you can safely ignore the bit about “extreme physical pain”, because “serious physical pain or suffering” is defined only as a “bodily injury” with the characteristics specified. Extreme physical pain by itself with no “bodily injury” is on this definition perfectly acceptable. So the stipulations above are rather like the gangster boss who instructs his heavies to beat someone up without leaving any marks.

Do you still wonder what “serious” means? There is more clarification:

(iii) The term ‘serious mental pain or suffering’ has the meaning given the term ‘severe mental pain or suffering’ in section 2340(2) of title 18, except that—
(I) the term ‘serious’ shall replace the term ‘severe’ where it appears; and
(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term ‘serious and non-transitory mental harm (which need not be prolonged)’ shall replace the term ‘prolonged mental harm’ where it appears.

Ah. So according to (I), “serious” means what “severe” means, when you replace “severe” with “serious”. Understood. The replacement of words in (II) is more interesting. Title 18’s demand that mental suffering be “prolonged” is a form of language that, as I argued in Chapter Seven of Unspeak, means it is potentially always too early to tell whether something really counts as torture. Since the MCA is currently defining the slightly less grave offence of “cruel or inhuman treatment”, it generously allows that the mental harm need not be prolonged. On the other hand, though, notice that it must be non-transitory. The question of how something has to last before it can be called “prolonged” is simply replaced with the question of how long something has to last before it is no longer considered “transitory”. One second? Thirty seconds? Five minutes? A week? You may adjust your stopwatch to fit.

The government, which has been ordered to abide by Common Article 3 in its treatment of prisoners, argues in this legislation that Common Article 3 outlaws only “mental harm” that is “non-transitory”, or a “bodily injury” of a “serious” nature. Anything else is fair game. Congress and the Senate have agreed. Can they be serious? I fear so.

(IANAL, but after writing the above I see that I have accidentally agreed with Marty Lederman on a number of points, which is reassuring at least to me.)

 2 comments

Clever

A handy word

October 2, 2006 15 comments

The Guardian assigns to my review of Mark Z Danielewski’s new book the headline “O how clever”. Does this imply a positively sceptical view of the book’s virtues? Is it even possible to use the word “clever” as simple praise? I had thought it was, but a quick search of unspeak.net reveals its use here, both by me and by commentators, to range from sarcastic to downright abusive. Of course there are lots of insulting compounds featuring the word “clever”: clever clogs, clever dick, or clever-clever. The OED‘s first citation for clever-clever is from George Bernard Shaw in 1896. It would be interesting to know if this predates too clever by half, since then we would see a sort of implacable mathematical lowering of the ceiling for being considered too clever: from clever x 2 to clever x 1.5. Now, if “clever” by itself is bad, the formula has reached clever x 1.

But the intellectual sense of “clever” is anyway more recent than I had supposed. The OED and Chambers Dictionary of Etymology both suggest a root in Middle English clivre, claw or talon. And for most of its history the word has indeed meant manually adroit. In the late 19th century one could still call a drawing “clever”. The first edition of the OED in the early 20th century gives the “current sense” as hovering between the old meaning and the new: “Possessing skill or talent; able to use hand or brain readily and effectively”, although it looks like the word had already begun to have negative associations earlier, as a line from an 1858 poem, “Be good, sweet maid, and let who will be clever”, may indicate.

A sense of “clever” now totally lost to us comes from an 1804 citation: “Clever in New England means honest, conscientious.” These days “clever” means almost the opposite. Its root sense of working skilfully with the hands is not lost but rendered metaphorical: the word implies a kind of intellectual prestidigitation, mere mental tricks and technique designed to bamboozle an honest fellow. But what is mysterious is that, if “clever” is an insult, its negation is still an insult. It ought to be a compliment to say, for example, that George W Bush is not a very clever man. But somehow it doesn’t sound like one.

 15 comments

A proper account

The first requirement of intellectual debate

October 1, 2006 8 comments

. . . Nor is it even half-true to say, of those who advocated an intervention in Iraq, that they concluded “that the ‘root cause’ of terrorism lay in the Middle East’s lack of democracy, that the United States had both the wisdom and the ability to fix this problem and that democracy would come quickly and painlessly to Iraq.

The first requirement of anyone engaging in an intellectual or academic debate is that he or she be able to give a proper account of the opposing position(s), and Fukuyama simply fails this test. The term “root causes” was always employed ironically (as the term “political correctness” used to be) as a weapon against those whose naive opinions about the sources of discontent were summarized in that phrase. It wasn’t that the Middle East “lacked democracy” so much that one of its keystone states was dominated by an unstable and destabilizing dictatorship led by a psychopath. And it wasn’t any illusion about the speed and ease of a transition so much as the conviction that any change would be an improvement.

There will be no war, but there will be a fairly brief and ruthless military intervention to remove the Saddam Hussein regime, long overdue. […] What will happen will be this: The president will give an order, there will then occur in Iraq a show of military force like nothing probably the world has ever seen. It will be rapid and accurate and overwhelming enough to deal with an army or a country many times the size of Iraq. That will be greeted by the majority of Iraqi and Kurdish people as a moment of emancipation, which will be a pleasure to see, and then the hard work of the reconstitution of Iraqi society and the repayment of our debt – some part of our debt to them – can begin, and I say bring it on.

 8 comments