by Neil Macdonald

The torture called waterboarding is a pretty violent business.The torturer straps down the victim, feet elevated above the head, then covers the subject's face - often with cloth or cellophane - and pours water onto it. This triggers the gag reflex, persuading the mind that the body is drowning, provoking an atavistic terror. The straining and flailing against the restraint straps can sometimes break bones. If the torture is protracted, lung and brain damage can occur.

Now.

This would be the Bush administration's description of the same procedure: The detainee, an illegal combatant who may have intelligence valuable to the Worldwide Struggle Against Extremism, is restrained, and subjected to a robust interrogation. An enhanced interrogation technique is used, which for national security reasons must remain classified. But the detainee is not tortured, because the United States does not torture people.

That's not a caricature. It is a composite of actual administration jargon. And the last bit of circular logic has become the fulcrum of Washington's policies on treatment of foreign prisoners: The U.S. does not practise torture. Therefore its interrogation techniques cannot be torture, because if they were, then certain prisoners in the United States' secret prisons would have been tortured, and that cannot have been, because the U.S. does not practise torture.

By that logic, the following are not torture, either: dousing a prisoner with water and shackling him naked to the floor for extended periods in frigid temperatures; striking him on the head during questioning; manacling him in "stress" positions for prolonged periods; and inflicting sexual humiliation.

And, necessarily, the prisoners who have turned up dead in American custody after being beaten senseless, smothered in a sleeping bag or shackled to the ceiling, shrieking, as jailers using the technique of "peroneal strikes" smashed their legs into useless mush could not have been tortured.

"This government does not torture," President George W. Bush has declared time and again.

He will not get into the game, as he puts it, of entertaining detailed discussion.

"A simple question," said one White House reporter during a Bush news conference last week.

"Yes?" said Bush.

"What's your definition of the word 'torture'?"

"Oh," said Bush. "That's defined in U.S. law, and we don't torture."

Asked for his personal definition, Bush replied: "Whatever the law says."
Legal loophole

And indeed, American law does now forbid the "cruel, inhuman and degrading" treatment of prisoners, defining it in minute detail: infliction of severe mental or physical pain or suffering, or even threats of death.

Bush and his advisers opposed passage of that law a few years ago, presumably wishing to reserve the right to inflict all those things in the United States' secret overseas prisons.

Having lost that fight, though, they devised a neat device to circumvent the new law: The president simply signed secret executive orders declaring that none of the CIA's or the Pentagon's "enhanced techniques" fall within the law's definitions.

Members of Congress, who thought they were banning torture when they passed the law, were unhappy to hear about the secret orders, and said so.

"After telling us and the world that torture is abhorrent," said Senator Patrick Leahy, chair of the Senate judiciary committee and a Democrat, "it appears that ... they reversed themselves and reinstated a secret regime by, in essence, reinterpreting the law in secret."

During the nomination hearings last week of Michael Mukasey, Bush's new choice for attorney general, Senator Sheldon Whitehouse, a Democrat, asked this simple question: Is waterboarding constitutional?

"If waterboarding is torture, torture is not constitutional," replied Mukasey.

"I mean, either it is, or it isn't," replied Whitehouse.

"If it amounts to torture," said the former judge, "it is not constitutional."

Note the "if." It's not a word most experts would use in discussing waterboarding.
Euphemisms border on Orwellian

"Absolutely, waterboarding is torture," said Prof. David Luban of Georgetown University's law school, who has written extensively about torture.

"My test for waterboarding," said Luban, "is to tell someone 'Blow all the air out of your lungs and see what it's like not to be allowed to breathe in for two minutes.'"

Luban regards terms like "enhanced interrogation techniques" or "robust interrogations" as euphemisms bordering on Orwellian, or worse: "The Gestapo used the phase 'sharpened interrogation techniques.'"

The Bush position, said Luban, is essentially that government employees do not use cruel, inhuman or degrading techniques, unless they do. Luban said the "dagger in his heart" is that the justification comes from lawyers employed to find ways around the law. In the end, he said, "any proposition is arguable."
Successful political strategy

What's more remarkable, though, is that as a political strategy, it works.

By simply asserting that its techniques are not torture, the administration creates a debate where none existed before. As Luban put it, what were once questions of common sense are transformed into legal issues.

Newspaper editors and television news producers are naturally reluctant to flatly contradict the president, so the soldiers and CIA agents and private contractors who carry out the interrogations are not referred to as torturers, as they would be if they worked for, say, the governments of Russia or Egypt.

I actually hesitated in writing the first sentence of this column without a qualifier, knowing it would give my editor pause.

After Mukasey's exchange with the Senate panel last week, Human Rights Watch called his statements "preposterous," but the response was tinged with disbelief that such criticism even needs to be uttered.

The group pointed out that U.S. military courts have in the past prosecuted soldiers of other countries for using waterboarding on American troops, and that the U.S. government often criticizes other countries for the practice.

And, in fact, this was in the first paragraph of a presidential declaration on the UN's day of observance for victims of torture in 2004: "The United States reaffirms its commitment to the worldwide elimination of torture. The non-negotiable demands of human dignity must be protected without reference to race, gender, creed or nationality."

Somewhere in the last three years, that became: "Whatever the law says."

-Neil Macdonald
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