Caution on the Private Manning letter

Although the publicly available information indicates that there is cause for concern about how Private Manning is being treated, and an impressive array of legal academics and others have signed the Ackerman/Benkler letter condemning that treatment, there are two reasons why I hesitate to join them. My first reason for hesitancy is best illustrated by the letter’s use of ellipses. In support of its claim that Manning’s treatment may constitute torture, the letter says that the torture statute defines torture as, inter alia, “the administration or application… of… procedures calculated to disrupt profoundly the senses or the personality.” The actual language of the statute is not significantly longer and reads in full: “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.” While the first set of ellipses merely eliminates a redundant phrase, the second set obscures the fact that the statute’s definition was directed primarily at prohibiting the use of “mind-altering substances” and that the term “other procedures” is to be read in light of the prohibition against mind-altering substances. This exclusion may simply be viewed as effective advocacy. If that is the case it is appropriate to consider the tension between scholarship and advocacy and the effect that choosing one mode of communication over the other has upon both the message and the messenger. This is particularly true where, as here, the message is being advanced as the opinion of legal scholars.

More importantly I have concerns about the letter’s assertion that Private Manning’s treatment may amount to torture, and the effect that may have on the definition of torture. The recent past has clearly illustrated how malleable the definition of torture may be and the harm that this indefiniteness may cause. This malleability has been used on many occasions by governments, American, British, German and Israeli to name just a few, to justify interrogation techniques that many believe to be torture. There are two possible responses to this. One is the approach taken by the letter which acts on the proposition that malleability has been used for the “wrong” (human rights’ limiting) reasons in the past and should now be used for the “right” (human rights’ expanding) reasons today. There are two flaws inherent in this approach. The first is that by expanding the definition of torture to encompass Private Manning’s treatment as a “procedure designed to disrupt profoundly the senses or personality” it threatens to undermine the peremptory nature of the norm against torture. Solitary confinement alone certainly profoundly disrupts the senses, yet if that is considered torture then we must either end such confinement for all individuals, no matter how dangerous they are to themselves or others or how dangerous others may be to them, or we must make an exception to the absolute prohibition against torture. Such exceptions, as we have constantly seen with “ticking time bomb” scenarios, severely undermines the prohibition against torture to the point of ineffectiveness. More importantly from a practical standpoint, flexibility and indefiniteness in the definition of torture which this approach encourages, has been far more frequently used to undermine human rights than it has been used to protect them.

The other approach is the one I take here, which asserts that the prohibition against torture must be viewed as absolute and that torture can and should have a clear definition that does not change between September 10 and September 12. That definition can be fixed in a manner designed to withstand national security pressures in times of crisis while preventing most of the excesses attributed to American, British, German and Israeli captors/interrogators. However, it is unlikely that the definition I propose would find that Manning’s treatment constitutes torture.