Friday, April 17, 2009

US Code 2340 on "Severe Mental Pain or Suffering"
Is Suffering by Defninition Something Prolonged?

I just got through the OLC's August 2nd memo on "interrogations." Now, I'm not a lawyer, and no matter how much you know about the analysis of reasoning, you can't have complete trust in your judgments in a domain you're unfamiliar with. There's no doubt lots of background knowledge that's relevant here, and a lot of reasonable assumptions and conventions in the law that non-lawyers don't know about. So what I say here is likely to be wrong at least in some detail.

There's a lot to be said about the 8/2 memo. Perhaps interestingly, my reaction for the first couple of pages was one of relief--it didn't sound as bad as I'd feared it would. Unfortunately, that reaction didn't last. But this is not the sort of thing one should say much about after just one read.

One thing I want to point out here is actually by way of, well, a kind of defense of OLC I suppose. Much of what's gone wrong here is that U.S. Code 2340(2) seems to be rather a disaster. Here is 2340 in its entirety:
(1) “torture” means 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) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
I can't see how any sensible person would accept section (2) as a definition of "severe mental pain or suffering." First, there are clearly ways to inflict severe mental pain and ways to inflict severe mental suffering that are not listed in (2)--that is, ways to do so other than threats of severe physical pain or suffering or death, threats of this to others, or the administering of drugs. (2) apparently entails that, for example, sexual assaults up to and including rape do not count as torture so long as the assualt itself does not cause severe physical pain or suffering.

Furthermore, (2) apparently entails that all severe mental pain and all severe mental suffering is (by defnition) prolonged. So (to use an example off the top of my head) this means that I do not necessarily inflict severe mental pain or suffering on you if I tell you that your entire family has just been tortured to death if I'm sure to say "just kidding!" within a few hours or days. ((D) entails that I can't
threaten to torture your family to death, but that's a different matter.)

I hope there's something somewhere else that rules these things out, but these seem to be the implications.

So we begin with what seems to be a disastrously defective statute. Even an intellectually honest OLC might conceivably go wrong trying to apply this thing.

But this OLC was not intellectually honest, and this becomes clear fairly early on. To just pick out one of their most astonishing bits of sophistry, here they seem to be asserting that all physical suffering is (roughly, by definition, or as a matter of the very concept) prolonged. So there is no such thing as suffereing for a relatively brief period of time (say a few hours or days). This is utter bullshit, of course. To take a salient example, sleep deprivation for up to 72 hours--a "technique" they explicitly approve--apparently would not induce suffering in a person. Perhaps there is some vague suggestion in ordinary usage that suffering must be very prolonged, but there is no more than a suggestion--it does not clearly seem to be part of the concept of suffering. (If this were a clear and explicit part of the meaning, presumably we'd have no use for the term 'long-suffering', which would be redundant.) At any rate, this astonishing view seems to mean that (consistent with other proscriptions against e.g. severe physical pain) you can do pretty much whatever you want to someone so long as you don't do it for very long.

I don't want to draw any hard-and-fast conclusions about all this without carefully studying all the memos, but I have to say, even one read of the first memo has me feeling more than a little sick.


Anonymous Anonymous said...

You are being far to generous to the OLC, and hard on the crafters of the statute. First, it is standard practice in the law to define terms for the purpose of the statute that are not intended to offer good definitions of the term as it is used in ordinary language. (For the purposes of California spors law, for example, a "wrestling match" is defined as a sports exhibition in which "the outcome is known in advance".) Second, it is clear from the context that whever wrote the passage had talk to a psychologist of some kind during the crafting, and is using "prolonged" in a medical sense. In the medical sense, and symptom is prolonged when it's duration is made longer by the cause. This is just the passive sense of "to prolong", and makes more sense than reading it as just "a long time". After all, I prolong your pain if I make it last any longer at all. The word was clearly put in to establish a connection between the act of the torturer and the suffering, to prevent the incentdental suffering of a prisoner who just doesn't like being in prison from counting for the purposes of the statute.

So, the one word "prolonged" can harly let the OLC lawyers off the hook for what is clearly a delibate misreading design to justify torture that was in all likelyhood already going on by the time the memo was issued.

4:55 PM  

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