Andrew Sullivan accuses me of “astonishing ignorance” because in an earlier post on waterboarding I said that “as universally understood, torture is the infliction of physical injury through the application of physical force.” He quotes the phrase “severe mental or physical pain or suffering” from U.S. law to prove me ignorant. Once again, as ever, Sullivan asserts that what he believes is law when it is, in fact, nothing of the kind. Here is the applicable language under U.S. statute:
“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) 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;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
It is true that the law speaks of the “threatened infliction” of “severe physical pain and suffering.” But this is an extraordinarily broad phrase that could indicate that a nine-year-old bully who terrifies another kid on the playground by threatening to rip his arm off is guilty of torture.
Such statute language does not clarify; it muddies, as legal language often muddies. If someone says, “I am going to kill you,” and by so doing causes fear in the person to whom he says it, is that torture? Clearly not, though the fear experienced by the person might be severe.
The question is whether the panic induced by waterboarding rises to the level of lawlessness as defined by that statute and by international law. And though Sullivan refuses to acknowledge this, that is a debatable proposition, as demonstrated by the simple fact that many people of good will (like Michael Mukasey) are unable to come to a conclusion about it as definitive (and definitively self-righteous) as Sullivan’s.
What is not debatable, however, is what everyone, even those of us whom Sullivan feels free to liken to Nazis who make the “arguments of the Gestapo,” knows to be torture without question, which is doing physical injury to someone without an ability to defend himself in any way, or mental injury so severe as to cause impairment.