Containing TortureHow torture begets even more torture.
By Darius Rejali
Posted Friday, Oct. 27, 2006, at 3:58 PM ET
President Bush has insisted that the Military Commissions Act of 2006 is an essential tool for military and CIA prosecution of the war against terrorists. And yesterday, Vice President Dick Cheney argued that choking someone in water to gather needed intelligence is a "no brainer" and that the MCA covered the White House's "fairly robust interrogation program," including this technique. Legislation of this sort is always slippery, and the newspapers and legal blogs are full of disagreements about exactly what the new law means and what its effects will be. But one lasting effect is almost certain: Historically, laws like the Military Commissions Act have powerful corrupting forces on the militaries that use them, making them less able to achieve their ultimate goals.
The MCA creates a two-track system for interrogation: CIA interrogators can use painful, physical, "enhanced interrogation" techniques; military interrogators cannot. But it is only a matter of time before military interrogators will wonder why they are stuck using techniques that are allegedly less effective than the CIA's. Then, they too will start quietly adopting these "robust" interrogation techniques.
Prior to the enactment of the new legislation, the definition of torture, for both military and CIA interrogators, was broad and comprehensive. Torture was defined as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)" on someone in his control. This definition affirmed the definition of torture in the United Nations Convention Against Torture, to which the United States is a signatory.
The MCA changed the definition of torture. In clarifying what "severe physical or mental pain or suffering meant," it created a new standard: Torture must involve a "substantial risk of death, extreme physical pain, a burn or physical disfigurement of a serious nature, not to include cuts, abrasions or bruises; or significant loss or impairment of the function of a bodily member, organ or mental faculty."
http://www.slate.com/id/2152268/Darius Rejali is a Professor of Political Science at Reed College in Portland, OR.