Monday, August 24, 2009

The rich diversity of opinion from A to B

So the New York Times holds a symposium on the question of “Torture and Academic Freedom.” The question is begged, of course, by the very title of the symposium, but never mind.

Five experts were asked by the Times to comment on the case of law professor John C. Yoo, who while serving in the Bush Justice Department wrote (in the Times’ masterfully weasly words) the “memos that critics say were used to justify the torture of terrorism suspects.” Champions of protecting the United States from terror might say they were used to a different end, but never mind.

The experts were:

• Brian Leiter, University of Chicago Law School
• Kathleen Clark, Washington University School of Law
• Cary Nelson, American Association of University Professors
• Carlos Villareal, National Lawyers Guild
• Brad Wendel, Cornell University Law School

Why these five? The answer becomes clear quickly.

Professor Leiter defends Yoo against the charge of research misconduct, but finds it necessary to add that “One may think (as I do) such views implausible, badly argued and morally odious. . . .” He closes by saying that “John Yoo has earned international moral opprobrium for his views.”

Professor Clark says that “when John Yoo served as a lawyer in the Justice Department’s Office of Legal Counsel, he violated two of his professional obligations as a lawyer: to be candid in giving legal advice to his client, and to adequately inform his client about the state of the law.”

Professor Nelson, whose organization (the AAUP) is dedicated to protecting the academic freedom of professors like Yoo, says that “had he published his views in essays at a time when no U.S. sponsored torture was taking place, his legal opinions might have been seen as more absurd than sinister. The case is thus inescapably moral and political. Such considerations are clearly fair when deciding whether or not to hire a faculty member in the first place. You have a right not to hire someone whose views you consider reprehensible.”

Mr Villarreal holds that Yoo’s actions at Justice “led to the torture, humiliating abuse, permanent injury and even death of detainees who were never tried or convicted of anything. To protect his work in the Justice Department under the guise of ‘academic freedom’ is to protect the yelling of ‘fire’ in a crowded theater.”

Professor Wendel says: “The strongest legal criticism made of Professor Yoo and other Bush administration lawyers is not based on disagreement over policy or even morality. They were not implementing unjust laws; they were actively circumventing just laws.”

This, in short, is what passes for debate at the New York Times. Not one defender of Yoo is asked to contribute. No one is consulted who might dispute Cary Nelson’s claim that universities have a right to blackball those whose views are considered reprehensible by a dominant majority. No one to observe that it is precisely this attitude which is most inimical to academic freedom and has (as Mark Bauerlein wrote recently) “left the humanities scrambling for respect on campus and left humanities professors searching for convictions and grounds.” (Nelson is, significantly, an English professor.)

Intellectuals dearly love to repeat the pseudo-Voltairean boast I disapprove of what you say, but I will defend to the death your right to say it, except that they are far more interested in drawing attention to their disapproval than subordinating it to the defense of intellectual freedom. The very lack of diversity in the Times symposium demonstrates as much.


R/T said...

Add another perspective to the issue: You have lawyers involved in the discussion, and--regardless of whatever else one might say about people in that profession--lawyers ought to be especially sensitive to words and their meaning; this leads to what I see as one of the central problems, the uses and the meanings of the word "torture." Unless that word is properly defined (which might be impossible within the symposium's environment), the rest of the exercise is much ado about nothing (except to the extent that Yoo becomes the target for whatever abuse people seek to heap upon him). Again, I wonder how these folks define "torture." Obviously, more than a few people automatically equate "torture" with something rather evil and unacceptable, but--to my mind--no one has yet really come to grips with a meaningful, useful, and objective definition. Now, with news outlets speaking about possible investigations into those responsible for "torture" during the Bush administration, perhaps it is even more pressing for people to stop throwing an undefined word around so quickly and irresponsibly.

D. G. Myers said...

Exactly why I suggested that the very subject of the symposium begged the question. Not even a tenured professor is secure from the consequences of having assisted in torture—and thus Yoo is arraigned and convicted without trial or even discovery. All five symposiasts agree that he is guilty; the symposium is merely an exercise in moral preening.

Jonathan said...

Dr. Meyers,

I have to be careful here - I respect and enjoy both R.T.'s and your writing on literature.

RT - You wrote: "Obviously more than a few people equate "torture" with something rather evil and unacceptable..."

Statements such as this suggest there is a position out there to the contrary. It is not only the 'left' or Democrats who consider torture evil and unacceptable. International law, United States' law (both civilian and military) as well as prominent Republicans consider torture "evil and unacceptable".

This "debate" seems to have arisen as a consequence of some on the left equating torture with Republicans, which seems to have forced some Republicans into the unfortunate position of having to either defend torture or deny its existence. The initial premise, of course, is flawed. Yet the rush by some on the right to, in response, deny torture's existence seems only to perpetuate the initial error.

Dr. Meyers,

I agree an editorial bias at the Times exists, but would suggest that Yoo has not been treated with undue harshness. If one engages in politics or public life, is it not nearly inevitable that eventually someone will condemn your actions or positions? Partisan politics, seem to me, to lead to partisan editorializing and attacks. I see little evidence to suggest things operate otherwise, or that it is an extraordinary event when such attacks do occur.

As a Canadian, I expect different national newspapers to support different political or ideological positions. In Europe, this also is common. Why are such editorial practices in the United States seen as so egregious?

Finally, regardless of biased coverage from the Times, I wonder if condemnation of torture is best characterized as "moral preening".

I hope these words don't come across as unnecessarily abrasive or partisan. I firmly believe that agreement in matters of politics is not necessary for a civil or fruitful discussion. Furthermore, as a Canadian I have no stake in your domestic politics. So while I am not in complete agreement with you both, I am interested in your thoughts on the issue.

I genuinely look forward to any response either of you might have.


D. G. Myers said...

Thanks for your bracing response, Jonathan—although you need not be so careful. Unlike some on the literary blogscape, I recognize that you can respect someone while disagreeing with him violently.

Two points in reply.

(1.) I do not deny that torture is “morally odious” (in the self-congratulatory language of Professor Brian Leiter); what I wonder is whether the “enhanced interrogation” methods practiced by the CIA rises to the level of torture, and whether John Yoo’s memoranda, exploring the dividing line between torture and “enhanced interrogation,” can faithfully be characterized as “justify[ing] the torture of terrorism suspects.”

Torture is a scare-word. Anyone who has studied the literature of the Holocaust, as I have, is extremely cautious in applying it to anything but life-threatening and injury-causing physical brutality.

Consider Jean Améry on the experience of being tortured by the Gestapo:

“In self-negation, [the tortured man’s] flesh becomes a total reality. Partially, torture is one of those life experiences that in a milder form present themselves also to the consciousness of the patient who is awaiting help, and the popular saying according to which we feel well as long as we do not feel our body does indeed express an undeniable truth. But only in torture does the transformation of the person into flesh become complete. Frail in the face of violence, yelling out in pain, awaiting no help, capable of no resistance, the tortured person is only a body, and nothing else beside that.”

On this showing, what was done to Khalid Sheikh Mohammed to extract a confession and information does not even approach torture. The purpose of waterboarding him was not to reduce him to “only a body,” because it was precisely his consciousness that the CIA wished for him to spill. There was no violence involved—no blows, no infliction of pain—only the inducing of fear.

And if this becomes the new definition of torture, we will need to arrest a good many fathers and coaches.

(2.) The condemnation of fear-inducing interrogation in the name of torture is moral preening, because it costs the condemner absolutely nothing—it requires no moral courage whatever—and because it translates a political disagreement into a moralistic melodrama in which opponents are always immoral. On this subject see my post commenting on the election of Barack Obama.

R/T said...

Jonathan, part of the problem in this topic is a meaningful, objective definition of the word "torture." How can people discuss the pros and cons of so-called "torture" when no one has agreed upon the word's meaning. Perhaps it is a bit like the Supreme Court's struggle with defining pornography in the middle of the 20th century; I think someone said something to the effect of "I don't really know how to define it, but I know it when I see it." The denotations and connotations of "torture" present complicated problems, and its seems as though the symposium had agreed upon the meaning of the word did not share that with others. How can on proceed to discuss a problem without an agreement upon the problem's definition?

Lee said...

"Anyone who has studied the literature of the Holocaust, as I have, is extremely cautious in applying it to anything but life-threatening and injury-causing physical brutality."

Domestic and international laws are not as cautious as you are, fortunately. That what we did constitutes torture -- using either a legal or a moral definition -- seems undeniable to me, given the evidence. Condemning torture in the strongest possible terms is not preening and using the term torture is not a scare word. The facts support the use of the term.

Your reference to the Holocaust is irrelevant. A run-of-the-mill murderer has no recourse in the defense "But I am not a serial killer!" The torture regime we established is widely documented, and has resulted in gross violations of the laws and norms to which we previously claimed to adhere.

The War Crimes Act includes in its definition of torture "the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering." You would reduce the scope of the War Crimes Act so that only "life-threatening and injury-causing physical brutality" would count as torture.

Fair enough, but I recommend that if you run a red light that you not tell the officer who pulls you over that your definition of traffic laws differ from his. John Yoo should have been likewise advised.

D. G. Myers said...

Yeah? Exactly what domestic law are you referring to? Americans are not subject to international law, thank God.

So far from being irrelevant, my example of real torture from Jean Améry shows that we have become a nation of whiners.

If the whiners in this country had their way green lights would be redefined as red after you ran them—if you don’t have the correct bumpersticker on your car.

Jonathan said...

Thank-you both for your responses.

At the outset, let me state that I expect each of us has some time ago come to a personal decision as to whether water-boarding or "enhanced interrogation techniques" qualify as torture.

Dr. Meyers,

I agree completely that the inducement of fear, divorced from physical attacks upon the body, is not torture. As perverse as it makes me appear, I don't think it torture to place a pair of pliers on a table and imply their possible application to the fingernails of a terrorism suspect. Threats divorced from physicality are, as you point out, the tested and proven tools of both fathers and coaches.

We differ on whether making someone feel as if they are drowning qualifies as an attack upon the body. I wonder if holding someone's head under water is substantively different than water boarding, and whether you would consider this alternate use of water as torture.

A question: Isn't torture effective to the degree that someone fears the further application of physical force? Namely, do people reveal information under torture after the first finger nail is pulled because of the pain experienced or because of fear of future pain?

I'm not trying to be pedantic here. Instead I ask the question because if water boarding proves effective due to either pain or fear it seems it acts upon the recipient in much the same way as do more clear cut examples of torture.

Finally, I suspect that when you mentioned the Gestapo, you touched on the reason this debate has become so generally heated and vitriolic.

It seems that since the end of the Second World War, the archetypal torturer has been, for North America and much of Europe, the trench coat wearing Gestapo agent. Thus the attacks upon those who water board are as emotional and bitter, as if the Gestapo was literally operating at Guantanemo Bay. Those who defend the practice are likewise incensed and indignant at water boarding being called torture - "we're not the Gestapo after all".

Everyone then subsequently just talks past each other.

On your second point, thanks for clarifying for me what you meant.


I can't argue with your call for a shared definition of the word "torture". It often seems, however, that there is already a shared definition of torture. The embracing of "enhanced interrogation techniques" instead of "torture" appears as more of a re-branding of the word, rather than the introduction of new techniques, falling outside of the traditional definition of "torture".

I've heard the quote about "knowing it when you see it" attributed to Louis Armstrong regarding Jazz. Combined with your introduction of legal definitions regarding pornography, I think you raise an important question. How does one reconcile a technical, legal definition with a more commonplace and perhaps commonsensical one. As I write this, it occurs to me this is where the fundamental difference seems to be (and perhaps where I may need to modify my position on the matter).

Spanking a child in the spirit of correction, while not something I personally do, does not in my mind (and the mind of many others) qualify as child abuse. Yet under many legal statutes and definitions it does.

So too, with torture and enhanced interrogation techniques. While it may qualify as torture under strict legal interpretations, it is indeed substantively different from more Gestapo-appropriate techniques.

In closing, I am still uncomfortable with, and mostly opposed to, water-boarding in the defense of a constitution that proclaims the liberty and rights of the individual. Yet perhaps I should also acknowledge that a legal definition is not always useful outside of a courtroom.

Thanks to both for the discussion.

D. G. Myers said...

By the way, in section (d)(A) of the War Crimes Act, “pain or suffering incidental to lawful sanctions” is explicitly exempted from the definition of torture.

So the question whether the CIA’s “enhanced interrogations” techniques constitute torture is not as open-and-shut as the American Left would have it.

John Yoo’s work at Justice was carefully to define what those “legal sanctions” might be.

D. G. Myers said...

Furthermore, here is how the Act defines “severe mental pain or suffering”:

It is “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. . . .”

Neither waterboarding nor the various oral threats delivered by CIA interrogators can possibly be twisted to fall within the scope of these definitions—except by those who feel more threatened by the CIA than al-Qaeda.

Jonathan said...

Sorry for the double post - I couldn't fit the following into my response in a way that satisfied.

In the run-up to the invasion of Iraq in 2003, I saw posters in the Student Union Building at the University of British Columbia that portrayed United States military personnel as SS Storm Troopers - the analogy, of course,being Germany/Poland, U.S./Iraq.

I found it both offensive and ludicrous, but it continued to appear around campus of a couple of months.

I mention this to illustrate part of what I find so distressing about the debate around torture and "enhanced interrogation techniques": the assistance it gives the historically ignorant to make such comparisons and still appear reasonable. Of course those who differ respond with an appropriately emotional response, and all hope for a civil, civic conversation is lost.

By engaging in water boarding, I wonder if the damage to how the United States is perceived outweighs any intelligence benefits.

D. G. Myers said...


The U.S. Constitution does not proclaim “the liberty and rights of the individual.” It proclaims the liberty and rights of the American citizen.

Khalid Sheikh Mohammed, who sought to destroy the country defined and governed by the U.S. Constitution, neither merits nor qualifies for its proclamations.

As for a definition of torture. Here is mine, although perhaps you will disagree. Torture is the deliberate infliction of physical pain that may cause death.

Waterboarding is by all accounts a terrifying experience, but no one is in any danger of dying from it. Perhaps it damages the reputation of the United States, but if it protects American citizens from terror attack—as the waterboarding of Khalid Sheikh Mohammed decidedly did—then I can accept the damage to my country’s reputation.

Anonymous said...

To suggest absolute standards of suffering is to take a stance that denies the legitimacy of the suffering of some whose experiences does not fall into the defined category.

Suffering, like joy, is highly subjective. Anything could be torture, if that is what the victim feels it to be. It is, therefore, intellectually irresponsible to suggest that water boarding is not torture because it does not meet some absolute standard of suffering defined by someone who has never suffered. One can only ask the victim if he felt it was torture and his response is the only intellectually defensible definition.

D. G. Myers said...

Nonsense. If legal definitions are subjective then anyone is at risk of arrest and conviction at any time.

Anonymous said...

But they are subject to arrest at any time. All that need to happen is for someone to make a frivolous accusation.

Jonathan said...

Dr. Meyers,

It's not that I disagree with your definition of torture. Rather, I am sincerely puzzled at what it seems to omit. If torture is defined by its ability to cause death, have you not removed from being classified as torture the following: the breaking of fingers; the removal of fingernails; suspension by various parts of the body; caning of the feet; or flogging of the back, among many other techniques designed to elicit information?

Water boarding is as you say terrifying. It is terrifying because it is simulated drowning that if done incorrectly may, in fact, cause death. The terror you admit it provokes could also be interpreted as causing sufficient "suffering" (distinguishable from physical pain, at least by the statutes you quote).

A final question. You point out that the Constitution only proclaims the liberty and rights of the United States citizen. How then does the United States legal system deal with non-citizens on a daily basis if not under the guidelines laid out in the Constitution? Are non-citizens not entitled to the same rights to counsel or freedom from abuse? Is it not for this reason the White House has argued prisoners held overseas are not subject to the protection of the Constitution. The rights to liberty and the pursuit of happiness may be reserved for citizens, but the expectation that state power is applied according to the Constitution is not, I believe, conditional.

That we won't come to any substantive agreement on this matter is, I trust and hope, no impediment to future fruitful discussion.


R/T said...

May I throw something into this mix of ideas? A word like “torture” can be viewed simply as a sign. Certain (perhaps most or all) words and acts signs are open to some different interpretations; however, agreement upon a standard interpretation is often essential. Consider the humble example (previously mentioned) of the traffic light. A red light means nothing in and of itself. It merely is an object that can be scientifically and physically measured in certain ways. However, we have all agreed that the red light in a traffic environment is a sign within a specific context that requires a driver to stop at that signal. Without that sensible and pragmatic agreement, we have chaos. Apply that simplified notion to any word or concept. Now, with respect to “torture” and “interrogations,” we have careless interpretations (mostly from the left—in my view) that fail to consider the contexts for the application of the words (and acts). We will continue to have problems as long as leftists subjectively skew the definition of “torture” and “interrogations” to include psychological or physical discomfort without an appreciation for the contexts in which interrogations occur. As for those who would those who demonize any and all psychological and physical interrogations—without giving any objective understanding to the very grave contexts—would you prefer to have your family or yourself victimized by allies of someone who you could have interrogated but delicately demurred to do so because of your quibbling and dangerous failure to understand and accept properly contextualized definitions of the words “torture” and “interrogation”?

D. G. Myers said...


You ask, “If torture is defined by its ability to cause death, have you not removed from being classified as torture the following: the breaking of fingers; the removal of fingernails; suspension by various parts of the body; caning of the feet; or flogging of the back, among many other techniques designed to elicit information?”

Excellent challenge. You are right; my definition makes no room for such obvious tortures.

How about this revision, then? Torture is the deliberate infliction of physical pain that may cause death or permanent physical injury.

D. G. Myers said...

But they are subject to arrest at any time.

Good thing you are posting anonymously, then. By your own lights (“One can only ask the victim if he felt it was torture and his response is the only intellectually defensible definition”), you have assaulted me, because I feel assaulted by your naive relativism.

Anonymous said...

But I am a victim, too. I feel threatened by your response. I feel threatened by your truth.

Anonymous said...

Torture is the deliberate infliction of physical pain that may cause death or permanent physical injury.

So by your own standard feelings don't matter.

D. G. Myers said...


Thanks again for demonstrating the utter vacuousness of relativism.

Feelings do not matter. Only objective standards do.

Lee said...

The U.S. signed (18 Apr 1988) and ratified (21 Oct 1994) the U.N. Convention Against Torture. The Constitution has this to say about treaties the U.S. enters into (and the convention is a treaty): "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing" (Article VI). Domestic? International? I'm not a lawyer, so let's just call it "The Supreme Law of the Land."

Absent some relativistic definition of these terms, torture is defined by our Supreme Law of the Land as "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."

Waterboarding was illegal torture when the Japanese did it, when the Cambodians did it, rightly condemned in the harshest terms. It was torture when we chose to do it. Moreover, waterboarding is the tip of the iceberg. We did MUCH more than waterboard, as any cursory glance as the documentary record indicates. For those interested in the record, I suggest starting with Jane Mayer's The Dark Side and Stephen Miles's Oath Betrayed, or any of the documents the ACLU used FOIA to obtain. Also, add Glenn Greenwald to your RSS feed and follow his links.

The example of Jean Améry shows that we have become a nation of whiners in a way analogous to the whining of a victim of an IED. Stop whining about your mere lost limb! You might have been killed! Right. Very persuasive. Also, again irrelevant since the word "whiner" does not appear in the Supreme Law of the Land.

As for "pain or suffering incidental to lawful sanctions," I don't understand the logic of your claim. It is illegal to inflict pain and suffering in order to obtain information (including in wartime), but if you're doing something legal like counteracting aggression and you incidentally inflict pain and suffering, that is legal. Waterboarding is the infliction of pain and suffering to obtain information. How is that not open and shut?

Jonathan said...


I agree with the general position of your comment, but unfortunately must disagree with your evidence.

Indeed the United States ratified the U.N Treaty Against Torture, but with "certain interpretive understandings" "which shall apply to the obligations of the United States under this Convention"

The legal definition of torture in the United States - as laid out in the treaty - is thus slightly different than that put forth in the body of the U.N. treaty. There's a bit more interpretive leeway possible.