Torture in Three Words

When one thinks about torture, one gets images of waterboarding, or if more medieval, one thinks of burning pokers, or the rack. Since an outburst on British TV by Antonin Scalia, the commenters on message boards and blogs who agree with him are now weightily intoning about the necessity for bamboo spikes below the fingernails.

He gets this kind of imagery from many sources, high among them Alan Dershowitz (on the fingernails), and the program '24' on most of the rest. Scalia is known to have cited '24' in interviews as examples for supporting various versions of the ticking bomb theory. The reality is somewhat different, and techniques like common peroneal strikes, shaking, slapping, and waterboarding would make up the majority of the techniques in any thriller, since the bomb needs to be just a few minutes from exploding all the time, so the techniques need to be loud, violent, and quick, degradation, humiliation, stress, and deprivation are the words that really keep resurfacing more often. Of course, it's hard to say something like,

If there were a bomb somewhere in Los Angeles that was going to go off within the next two months, and you knew that one of these ten thousand men knew something about the finances used to pay the man who set up the cell to build it two years ago, I don't think anybody would find keeping all of them in the nude in dark cells with no contact with the outside, waking them every two hours, and making them wear women's underwear on their heads to be prohibited by the constitution. It would be absurd to say you couldn't do that. (Paraphrase of Scalia's comments with the real interrogation scenario superimposed).

In their article about Scalia's interview, Professor Conor Gearty states this, "Antonin Scalia works hard to protect himself from having to think seriously about torture. His devices are quite obvious, the idea of a smack on the face - rather than sensory deprivation, or waterboarding or any of the Abu Ghraib images - and the comment about 'so-called torture'..."

And that has been the dynamic all along. From interviews like these, by Scalia and Dershowitz, to shows like '24', to public statements by the Bush administration, to memoranda generated by the OLC, and even required testimony before the U.N. Committee on Torture, while looking furiously through the Constitution and the Geneva Conventions, and the Convention Against Torture for loopholes through which to drive torture, the public front has all been about the quick and the violent, a movie scenario, a few minutes pain wrought on an undeserving terrorist that saves millions of lives in an instant. And there are only three words in the Torture act that prevent them from arguing successfully any technique that isn't like the movie scenario isn't the intent of these laws and conventions. Like Scalia's statement that "cruel and unusual punishment" in the Constitution refers only to the punishment of a person after conviction for a crime, not to intelligence, they parse through the text attempting to create the "narrow" definition of torture, and parse through the ratification documents looking for "intent" to narrow the definition, and even claim that the Torture Convention may not be applicable in Afghanistan, Iraq, and Guantanamo, because the applicable law is the Geneva Conventions, since they are fighting a war.


Those Three Words

The operative two words in the Torture Act, are the words, "or other procedures." Otherwise, no matter how severe and prolonged the mental pain or suffering inflicted, the current U.S. position in implementation, from a December 2004 memorandum of the OLC, written by Acting Assistant Attorney General, OLC, Daniel Levin to replace the infamous "Torture Memo", the favorite techniques of breaking prisoners would never amount to torture. Never mind that they argue to the U.N. Committee the opposite, that U.S. law merely makes fine distinctions to be more easily implemented, and really covers the broad scope covered by the Article 1 definition in the Convention Against Torture. U.S. policy is that if the prolonged mental pain and suffering created by U.S. interrogation or incarceration are not the product of exactly the 4 causes in the Torture Act, and whichever of those 4 causes was applied specifically to produce the prolonged mental pain and suffering, then regardless of what has been done to the prisoner, it is not torture. This is no exaggeration, it is fact. And it may be the origin of all the professions out of the Bush administration that the "U.S. does not torture."

Solitary confinement and sensory deprivation, especially when combined with sleep deprivation, are not matters of severe physical pain and suffering, in and of themselves. There is no application of drugs, and, now that the work in the 1950's is complete, no experimentation on victims. There need be no threats of death. And there may not be any threats to any relative, or other prisoner, or any third party. So the only way that these techniques qualify under the Levin Torture Memo, is that they are "other procedures" calculated to profoundly disrupt the senses or the personality. Whether or not they qualify under the "specific intent" arguments in that memo is a good question. After all, as documented by NPR, solitary confinement far exceeding what is proscribed by the Convention Against Torture or the Geneva Conventions is quite common in U.S. prisons. And sensory deprivation devices, mostly isolation tanks, are widely available for 'meditation' and apparently as almost recreational devices, on the internet. And most workers at start-up companies would probably boast about their sleep deprivation. Since Levin's memo requires that torture be something quite "extreme", as in "universally and categorically condemned." When the U.N. Committee on Torture complained that this was not the intent of the Convention, the U.S. delegation explained,

Mr. Mariño Menendez had asked why the United States had limited torture to "extremely severe" pain or suffering. They had not done that. In its criminal statute for the extraterritorial offence of torture, the United States had utilized the term "extreme" as a synonym for the term "severe". It did not use the term "extremely severe".

With respect to the question about the United States understanding defining the term "severe mental pain or suffering" in Article 1, that understanding had recited elements implicit in the text to provide the specificity needed to meet the requirements of a criminal statute. There had been no intent to limit the scope of Article 1.

Sensory Deprivation

Then what is the U.S. position on these techniques? Maybe a photograph would be helpful. Obviously, since this is an image in the public domain, courtesy of the U.S. Navy, it doesn't fit the bill for torture.



Sensory deprivation was developed by the Soviets, it is believed, during Stalin's regime. The U.S., Canada, and Britain became interested in it in the 1950's, and studies were done in all three places, by such well known names in neuroscience and psychology as Donald Hebb and John C. Lilly. In Hebb's case, the experiments were done in a fashion not too different from what is shown in the photograph in some respects: The subjects were put in rooms by themselves, told not to talk, the rooms were silent, and they wore blurry goggles that kept their sense of vision from functioning. "Despite the concessionary factors several of the volunteers began to have experiences of unusual visual and auditory hallucinations. Many found themselves unable to
distinguish between the waking and sleep stage."

John Lilly's experiments were more famous, especially after the publication of his book The Center of the Cyclone in the 1970's, and the device he created was known as an isolation tank. It was famously depicted in the movie Altered States, in which the hallucinations within the tank, when combined with the right Mexican brujo magic, produce real results. Many researchers investigated the tanks for use in meditation, and it is these that are sold on the internet, and that one finds when searching the term "sensory deprivation". For his research subjects,

Under total silence and lack of any stimulation the subjects were unable to concentrate, and in some cases developed mental disturbances. The maximum time a volunteer could tolerate these conditions was only three hours. The volunteers reported feelings of unreality and tremendous loss of identification.

They did not know where they were, or who they were, or what was happening to them. Due to this enormous mental pressure most of them abandoned the experiment.

But what if it goes on for more than three hours? What if solitary confinement goes on for long periods of time? What if the sleep deprivation continues along with the sensory deprivation? The NPR documentary carries an interview with an American former prisoner who was in solitary confinement for 18 years. He has significant social problems that have persisted beyond his confinement. In the case of prisoners at Guantanamo and elsewhere, the techniques have produced hallucinations and psychosis, according to Mark Benjamin's excellent article, The CIA's favorite form of torture. In the case of the Stanford Prison Experiment, subjects screened for "normalcy" before the experiment experienced breakdowns after confinement in isolation (without light) and sleep deprivation, in a matter of days (Philip Zimbardo, The Lucifer Effect).

Like many other aspects of society and our lives on this planet, when something takes time, and is a slow degradation or descent into madness, it doesn't register. When it so closely resembles accepted parts of the social framework, solitary confinement in prison, for example, it diminishes the impact of learning that a tactic has been used on ordinary citizens. Because that framework exists, natural cognitive processes that eliminate the painfulness of the image get right to work rationalizing the behavior. And when it resembles a form of recreation, or a situation that people all keep in memory, as in the isolation tanks, or the all-nighters from school or work, people then dismiss the technique as nothing more than the amalgamation of normal behaviors.

And so people like Antonin Scalia and Alan Dershowitz make sense to some, and are taken as experts. And people like Stuart Grassian, a genuine expert in solitary confinement and sensory deprivation, do not get cited in the news. And a treatment that is perhaps the most diabolical of all of the abusive treatments making up the list of "enhanced interrogations", takes a back row seat to quick, painful, and violent techniques -- that fit in well in the movies and on TV.