Tortuous Definitions of Torture

Over at Slate, Peter Brooks (who holds a joint appointment in Law and English at UVA) has this post on the August 2002 Bybee torture memo . Brooks sees Bybee’s failure to follow the “plain meaning” statutory interpretation guidelines reaffirmed by Chief Justice Rehnquist in LEOCAL v. Ashcroft, in which the Court noted that we construe statutory language “in its context and in light of the terms surrounding it,” as:

[A] remarkable example of textual interpretation run amok—less “‘lawyering as usual” than the work of some bizarre literary deconstructionist. And it’s virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.

Of course, DoJ conceded the point that Bybee’s statutory interpretation was flawed in the December 2004 memo to James Comey “withdrawing” the Bybee memo.

I wanted to respond to Julian’s question that, if the allegations of torture at Gitmo are credible, why hasn’t there been a serious call by leading politicians for investigations? The answer is undoubtedly complex — and must surely include, in part, the political tone set by a President who refused to acknowledge that any senior officials should be held accountable for abuses that we do know took place. But the absence of outcry does not disprove that abuse tantamount to torture has taken place. Andrew Sullivan, in his recent essay that I mentioned here, raised the disturbing implications of the silence on the Hill and among the broader polity much more eloquently than I ever could:

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ”evil” might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.



American political polarization also contributed. Most of those who made the most fuss about these incidents – like Mark Danner or Seymour Hersh – were dedicated opponents of the war in the first place, and were eager to use this scandal to promote their agendas. Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. Getting rid of this cancer within the system is essential to winning this war. I’m not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it’s worth a thorough reassessment of rhetoric and war methods.



Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ”heroic” protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.