Caution on the Private Manning letter

by Michael W. Lewis

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.

http://opiniojuris.org/2011/03/22/caution-on-the-private-manning-letter/

11 Responses

  1. “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.”

    It’s worth noting that Lewis provides no evidence of this assertion.  Moreover, who cares if the provision was directed “primarily” at mind-altering substances?  Does that make actions that qualify under the “other procedures” prong less criminal?  That would indeed be a novel approach to criminal law.

    Apparently, the only definition of torture that is clear enough for conservatives is one that legitimates the Bush administration’s torture regime.  How convenient!

  2. Moreover, Lewis’ approach to ejusdem generis is fatally flawed.  The generis is “procedures calculated to disrupt profoundly the senses or the personality,” not mind-altering substances.  The clear intent of the statute is to prohibit the disruption of the senses or personality, however accomplished.  The use of mind-altering substances is simply the most obvious example of the kind.

  3. If Heller’s reading of the statute is correct and any profound disruption of the senses or personality constitutes torture, does that mean that all solitary confinement must come to an end?  Arguably, for that matter, all confinement must come to an end because it most assuredly alters the senses and personality and in ways that are arguably more dehumanizing and brutal than some forms of torture.  See Mark Osiel’s The End of Reciprocity pp. 157-161for a description of studies that support this view of the effect of incarceration.  

    So under Heller’s view we have to close all the prisons and let everyone out because they are being tortured, or we have to create exceptions to the universal prohibition against torture.  I don’t think we want to do either of those things.  

  4. So Mr. Lewis you are willing to admit that solitary confinement has a particularly pernicious effect, but you are not in favor of reform?  Also, is there not a difference between solitary confinement where one is forced to stay in their cell for 23 hours a day rather than say 10 hours a day?  I don’t know how common the latter is, but I could at least see how it would be less intrusive and cruel than the former.

    There has been work on reforming the system to do away with prolonged solitary confinement: http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf

    “International treaty bodies and human rights experts,

    including the Human Rights Committee,

    18

    the Committee against Torture,

    19,20 and the U.N.
    Special Rapporteur on Torture,

    21 have concluded
    that solitary confinement may amount to cruel, inhuman,
    or degrading treatment in violation of the
    International Covenant on Civil and Political

    Rights

    22 and the Convention against Torture and
    other Cruel, Inhuman, and Degrading Treatment or

    Punishment.

    23 They have specifically criticized supermax
    confinement in the United States because of

    the mental suffering it inflicts.

    19,20″

    -From http://www.hrw.org/en/news/2010/03/22/solitary-confinement-and-mental-illness-us-prisons

  5. Response…
    With respect to treatment of persons, the statute should be amended to comply with U.S. obligations under the Convention Against Torture, which, of course, has a definition!  U.S. reservations are void ab initio as a matter of law where they are inconsistent with the object and purpose of the treaty.

  6. Jordan,

    Absolutely correct that a U.S. reservation would be void, and the torture statute is designed to comply with our obligations under the Convention Against Torture.  However the definition in the CAT is very vague “severe pain or suffering” being the words that are so often bent.

    What do we do about the prohibition against torture if we conclude that solitary confinement, or confinement in general, constitutes torture because it disrupts the senses and personality? (which it most assuredly does) 

  7. How are the words  “severe pain or suffering” more vague than words such as “material breach,” “due process,” and “proximate cause”  – crucial concepts in contract law/constitutional law/tort law?

  8. Wow, what a response — impute an absurd position to me and then criticize it as absurd.  There is obviously an argument that solitary confinement can, if prolonged enough, qualify as torture; indeed, Lewis might be surprised to learn that the Human Rights Committee has said precisely that with regard to the ICCPR, being particularly critical of punitive solitary confinement. 

    As for the argument that detention itself qualifies as torture because it alters the senses and personality — I think Lewis needs to re-read Article 1 of the Torture Convention, which specifically provides that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

  9. I am well aware of what both the HRC and the ECHR have said about solitary confinement, going back to the Baader-Meinhof cases.  I am also well aware of the CAT’s definition of torture.  But it does seem somewhat circular.  If the sanction is lawful then it is not torture.  Does the question of whether Manning’s treatment constitutes torture turn solely on whether it is legal under American law?  It can’t.

    Congress cannot pass a law that prescribes mutilation as a punishment, thereby making it a lawful sanction and therefore not torture.  So there is only so much work that the “lawful sanction” language can do.  If certain kinds of solitary confinement are torture I don’t think they can be rehabilitated with the “lawful sanction” language.  Does Heller?  Probably not, but I will await his reply.

  10. So what precisely does the Convention mean by torture, if it doesn’t include pain and suffering arising only from lawful sanctions? There’s something circular about saying that the Convention doesn’t apply to lawful sanctions, then determining particular treatment is an unlawful sanction solely by reference to the Convention.

    (Edit: Beaten to it by Mr. Lewis.)

  11. Milan,

    You raise a good question that requires a much longer answer than a comment can provide.  If you are interested in taking this up offline, feel free to contact me at
    m-lewis [at] onu [dot] edu

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