Non-transitory torture legislation
October 3, 2006
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.)