On not torture…

I think most people have no idea what torture is. Congress is at fault. As Congress has refused to define torture, as a reasonable person I will continue to point out that no one was tortured by the US.

I understand that defining it is a difficult proposition. So a null hypothesis can be used–define what it is not, or more directly, define what proper interrogation is.

As I would define it, proper interrogation would requires proper intent, improper intent, then constituting torture, as well as an analysis of the techniques.

Waterboarding, for example, is not torture in and of itself. If it is used, though in the pursuit of anything but actionable intelligence or it’s confirmation, it could be. It is certainly torture, though, if the intent is to cause pain or discomfort for any other purpose–that’s sadism.

Also, any such technique that is used in the usual Hollywood scenario: I’m going to hurt you until you talk, is torture, and that’s not how interrogations are done. Done right, proper coercive techniques speed up the time it takes for an interrogator to establish a rapport with the subject in a good cop/bad cop routine.

Fully articulated, proper intent, as I see it, requires reason to think that the subject is in possession of the information, reason to think that there is a set of circumstances under which they will divulge it, and that the information be itself actionable or confirmation of other intelligence that lacks that confirmation to be actionable. If any of these elements fail, the interrogator does not have proper intent and their actions may then rise to the level of torture. Those actions also have to be scrutinized before and during, by those authorities conducting the interrogations, and escalating intensity should require higher and higher prior approval. After the fact, all levels of oversight from immediate supervisors, IG, and ultimately Congress, even if that last is the usual lost cause.

Congress did ratify the UN Convention on Torture in 1994. But that’s also no help. It does not meaningfully define torture. The UN is just as negligent in this matter as the Congress.

“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,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.”
— Convention Against Torture, Article 1.1

Just as a starting point, what constitutes “severe”? More broadly, this could be applied in such a way as to prevent all interrogation.

A number of pundits, some who have said so all along, and some emboldened by the recent Senate Democrat report, have been making the assertion that the US tortured detainees. But the fact is, this assertion is completely unsupportable.

Judge Andrew Napolitano, for example, has been steadfast in this assertion. In response to the why both the Bush and Obama administrations have not pursued prosecutions, he claims that this is a political determination. He’s probably not used to the accusation I’m going to level against him, but he has failed to think this all the way through.

Indeed, he is right that both administrations have made political determinations as opposed to legal ones, but he doesn’t address why that should be the case. The reason is that Congress, in writing the legislation that might have applied, crafted the law, deliberately, to leave it a political determination.

The laws of the United States that “outlaw” torture, in fact, do no such thing, because, as discussed, they fail, utterly, to define what constitutes torture. Unconstitutionally vague is an understatement. Prosecution should be impossible in this circumstance and if achieved, would be unjust. The Bush and Obama administrations have made the only just determination that they can–not to try to prosecute. And that presumes, without evidence, that anyone did anything worthy of prosecution.

The US has tortured no one.

(Here is the US Code attempt at a definition: http://www.law.cornell.edu/uscode/text/18/2340)

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