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Why it matters that Dick Cheney still can’t define torture

Former Vice President Dick Cheney appears on “Meet the Press” in Washington, D.C. December 14, 2014, in this picture provided by NBC News. Cheney argued on Sunday that the CIA’s aggressive interrogation of terrorism suspects did not amount to torture, the man who provided the legal rationale for the program said that in some cases it had perhaps gone too far. REUTERS/William B. Plowman/NBC News/Handout via Reuters (UNITED STATES – Tags: POLITICS)

When we learned late last week that Dick Cheney would appear on Meet the Press to discuss the Senate Intelligence Committee’s torture report, I wrote this post suggesting some questions Cheney ought to be asked, the first of which is, “What is your definition of torture?”

Why is this question so important? Because torture advocates from the Bush administration and the CIA have always insisted that the things they did to prisoners — like the use of waterboarding or stress positions, the purpose of which is to induce excruciating pain — are not actually torture, and are therefore perfectly legal and morally unproblematic. This is one of the two pillars on which their advocacy rests, the other being that the torture program produced significant intelligence that couldn’t have been obtained any other way. And it’s precisely what could allow a future administration to start torturing prisoners all over again.

This has been something of a hobbyhorse for me for quite a while. But until this weekend I had never seen a high Bush administration official asked what the definition of torture is. That Cheney refused to answer wasn’t surprising, but what he did say was revealing nevertheless.

In a Twitter exchange on Friday, I promised Chuck Todd that if he asked Cheney for his definition of torture, I would send him a pie. It looks like I’ll have to make good on that pledge, because here’s how the interview began. Read Cheney’s responses closely:

TODD: Well, let me start with quoting you. You said earlier this week, “Torture was something that was very carefully avoided.” It implies that you have a definition of what torture is. What is it?
CHENEY: Well, torture, to me, Chuck, is an American citizen on a cell phone making a last call to his four young daughters shortly before he burns to death in the upper levels of the Trade Center in New York City on 9/11. There’s this notion that somehow there’s moral equivalence between what the terrorists and what we do. And that’s absolutely not true. We were very careful to stop short of torture. The Senate has seen fit to label their report torture. But we worked hard to stay short of that definition.
TODD: Well, what is that definition?
CHENEY: Definitions, and one that was provided by the Office of Legal Counsel, we went specifically to them because we did not want to cross that line into where we violating some international agreement that we’d signed up to. They specifically authorized and okayed, for example, exactly what we did. All of the techniques that were authorized by the president were, in effect, blessed by the Justice Department opinion that we could go forward with those without, in fact, committing torture.

To Todd’s credit, he kept trying to get Cheney to define torture. He asked Cheney about the “rectal feeding” that some prisoners were subjected to, and asked Cheney if that constituted torture; Cheney replied, “I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11.”

Cheney’s argument here – and this was hardly the first time – is that as long as al-Qaeda’s tactics are worse than ours, nothing we do is morally unjustified. His claim that “there’s this notion that somehow there’s moral equivalence between what the terrorists and what we do” is a classic straw man. No one’s asking whether the CIA’s torture program is better or worse than the September 11 attacks; that’s not how you make moral judgments. According to Cheney’s logic, if I approached him on the street, pushed him over and took his wallet, I could escape accountability by telling the judge that I did nothing wrong because it would have been much worse had I hit him over the head with a lead pipe and stolen his car.

Cheney never even attempted to define torture. But that definition isn’t some complex, arcane matter that you need a team of law professors to unravel. It’s very straightforward. Here’s the way U.S. law defines torture: “An act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

The United Nations Convention Against Torture — a treaty the United States signed and ratified — defines it in a substantively identical (if somewhat more verbose) way: “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.”

But even after this repeated questioning, we still don’t know how Dick Cheney or any other torture advocate defines it. Why not? It seems pretty clear. There is simply no definition that anyone could devise that wouldn’t apply to things like stress positions or waterboarding. Try to imagine one. Torture is the infliction of severe physical or mental suffering to obtain information or a confession — but only if it leaves a mark? Or only if it’s done by non-Americans? Any such definition would be absurd on its face.

So when people like Cheney are asked what the definition of torture is, they say, “September 11!” When asked what definition of torture wouldn’t apply to the particular techniques the CIA employed, they just repeat, “We didn’t torture” over and over. They not only defend torture as a means of obtaining intelligence, they sing its praises and insist that it was spectacularly successful, all without having the courage to call the thing by its true and only name.

After taking office, President Obama issued an executive order limiting interrogation to the techniques laid out in the Army Field Manual (which defines torture as “the infliction of intense pain to body or mind to extract a confession on information, or for sadistic pleasure”). The Field Manual specifically mentions stress positions and prolonged sleep deprivation, but its list of examples of torture is hardly meant to be exhaustive. As Greg has noted, it would be possible for Congress to pass legislation codifying that executive order into law.

But torture was already illegal, and the Bush administration did it anyway. All it required was a couple of administration lawyers willing to write memos saying, in essence, do whatever you want. In this case, the key memo was written by a lawyer named Jay Bybee, who wrote that if a technique of abuse didn’t cause “death, organ failure, or serious impairment of bodily functions,” then it wasn’t “severe” and therefore wasn’t torture. Jay Bybee sits today on the United States Court of Appeals for the Ninth Circuit. Every single Republican in the Senate, along with 25 Democrats, voted to confirm him to that position.

Even if those of us who believe the United States shouldn’t torture prisoners are getting the better of today’s argument, there is absolutely no reason to believe that in the right set of circumstances and with the right administration in power, we couldn’t start torturing prisoners again. Bush administration officials, from the former president and his vice president on down, have shown no remorse about their torture program; to the contrary, they’ve been effusive in their praise for it. No one associated with the program has been held accountable, legally or otherwise. Jose Rodriguez, the CIA officer who oversaw the program and destroyed videotapes to keep Americans from seeing what it looked like, writes op-eds and makes the rounds of television programs promoting his version of history. George Tenet, who ran the CIA during both the torture years and the disastrous runup to the Iraq War, got the Medal of Freedom.

Supreme Court justice Potter Stewart famously said that while he couldn’t define pornography, he knew it when he saw it. We can define torture quite easily — indeed, the definition is widely agreed upon. Dick Cheney can’t define it, though. That’s because he wants to justify what he and his colleagues did in the past, and keep the door open to doing it again in the future.