Monday, April 20, 2009


I don’t usually get driven into a state of real anger by what I read in the newspaper. In middle age I suppose there is no outrage, no abomination, nor human tragedy, nor folly, nor deceit about which I have not by now read in much detail and at depressingly regular intervals. However last Thursday was a galvanizing exception.

While hiding behind my copy of that morning’s
New York Times over breakfast at the Brown Palace Hotel in Denver, Colo., I found myself reading lengthy extracts from long and badly written memoranda in which attorneys of the Justice department (and others) attempted to argue that certain disgusting “methods of interrogation,” conducted in secret, may not be defined as torture under the U.S. criminal code.

These memoranda, the publication of which no fewer than four former directors of the Central Intelligence Agency did their utmost to prevent, are deeply shocking and ought to justify the aggressive prosecution of any and all offenders—as a matter of urgent moral necessity, and for the common good.

The plain meaning of torture was as clear to the persons who conceived, framed, and drafted the relevant law as it must be to anyone else with a brain and a conscience, and it is perhaps a moot point whether the decision of officials in the Bush administration to seek legal advice on this point in 2002 is any more outrageous than the willingness of at least a handful of lawyers to provide it.

Here we have the chilling spectacle of high officials—reasonably intelligent (I suppose), comfortably housed, with graduate degrees from good schools, people moreover with parents, spouses, children—trying in vain to demonstrate that the physical pain, mental suffering, and fear that is administered to prisoners of the state are not bad enough to qualify as
bona fide torture—coldy assessing these (without having experienced any of them at first hand) according to a sliding scale of severity, short of which, they claim, the United States has consistently stopped.

“Although the waterboard constitutes
a threat of imminent death,” wrote sometime assistant attorney-general Jay S. Bybee, “prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering.”

Yes, he appears to have been serious. Some threats of imminent death are less terrifying than others, Mr. Bybee is saying, especially if “the relief is almost immediate
when the cloth is removed from the nose and mouth.” What cloth? And if it’s covering the nose and mouth, how is the prisoner expected to breathe?! “In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.” Let us presume that Mr. Bybee, now elevated to the bench, is an amusing dinner companion.

Degrees of pain, suffering, and fear are hardly measurable because one person’s capacity to endure excessive doses of each may at times outstrip the rest of us who have far lower thresholds, while I know from my own bitter experience (administered long ago by a perverted master at Melbourne Grammar School) that the humiliating effect of something as benign-sounding as “enforced nudity” can cause indelibly lasting damage to another. The point is to coerce by inflicting pain, and by threats of still more pain, so vague estimates as to the amount or intensity of the pain required to achieve that coercion are entirely irrelevant.

Leaving aside this immaterial question of degree, one simply cannot believe that any rational person could possibly state that putting a prisoner in a box containing insects they loathe, and leaving them there, is not torture. Nor is it of any comfort to know that some prisoners have been kept awake only for
eleven days straight; that the prospect of “simulated drowning” is not real, nor that slapping and punching hands are free of potentially flesh-piercing jewelry. How quaint. Even more sinister is the use of towels to prevent whiplash injury when repeatedly throwing someone against a wall—“walling” appears to be the technical term.

If the lawyers who provided this outrageous advice—as cynical as it was stupid and criminal—are spared any consequence on, I suppose, the depressing principle that they were merely “following instructions”—the failed Nazi defense at Nuremburg—there can be no such protection afforded to the clients themselves, in this case overreaching servants of a federal government ostensibly elected by the people.

I can only imagine what my dear late father would have thought of all this. He was an ex-serviceman—Royal Australian Navy: H.M.A.S.
Warramunga, H.M.A.S. Nizam, etc.—an able and well-respected attorney: sometime senior partner of the ancient firm of Mallesons Stephen Jaques; president of the Law Institute of Victoria, president of the Medico-Legal Society of Victoria, and a churchwarden at St. George’s Church of England, Malvern.

He would have been deeply shocked, not only by the measure of cynicism that is revealed by the claim that such fear and pain as is caused to a prisoner by the abdominal slap, or the waterboard (used in excess of
180 times on one prisoner alone), or “stress positions,” are insufficient to meet the high standard required by the true definition of torture, but that a qualified legal practitioner, bound by obligation to a court, could be induced to say so under any circumstances.

Here, he would have said, is a willing betrayal (with malice aforethought) of the high requirements, responsibilities, and noble calling of the profession of law. Let us presume that these days a lot of people would simply laugh at him, above all those officials of the Justice Department, the Central Intelligence Agency, and whoever then ran Guantánamo.

Just now, and for the next few weeks, Christians are celebrating Easter, having lived through the hideous events of Holy Week. Nothing more readily brings to mind the Passion of Christ than these miserable sophistries relating to torture/non-torture:

“And when He had said these things, one of the servants standing by gave Jesus a blow, saying: Answerest thou the high priest so?”

Moreover, according to the Catholic tradition yesterday was Divine Mercy Sunday. Let us hope that the enablers and perpetrators of these acts of torture availed themselves of it. They cannot possibly have acted in good faith if they required legal memoranda to salve their consciences.

I believe that all of us await higher judgment, but how much more satisfactory it would be if justice were not only done here and now, but also seen to be done by as many people as possible in our own and every other earthly jurisdiction, well ahead of time. How else can we hope to persuade the world that this is a republic of laws, and not of men?

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