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June 28, 2004
It's not torture unless it kills you -- in which case, we deeply regret the error and promise to try to jail a private or two for a year or two
Pulling out fingernails one by one probably would not constitute torture under the definitions of the August 2002 Justice Department memo because it's not likely to result in “death, organ failure or serious impairment of body functions.” The memo, desperately searching for a loophole wide enough to allow for torture, defines “severe pain” as the level of pain “associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions.” In other words, if the pain inflicted is not about to cause organ failure or death, it’s not severe enough to be defined as torture.
So, where did they get this definition? It’s clever in a scary kind of way. The memo explains that the federal law against torture uses severe pain as a key criterion without defining it. So, the authors decide to define it and, in a flash of brilliance, propose that “the statutes regulating what kind of emergency medical conditions qualify for payments of health benefits” would be a “good model.”
Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure or the permanent impairment of a significant body function. These statutes suggest that "severe pain" as used in Section 2340, must rise to a similarly high level, the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions in order to constitute torture.
Well, duh. Substantially different subject, indeed. In regular life, people experience such severe pain almost solely in association with serious health problems at the “level of death, organ failure or the permanent impairment of a significant body function” because ordinary Americans who show up at emergency rooms are not shackled in “stress positions” that cut off circulation, subjected to extreme heat or cold, sleep-deprived for days, attacked by dogs or ruthlessly beaten. They have severe pain because of illness or injury; detainees who have been tortured have severe pain because they have been tortured, not because they have kidney failure or cancer.
This is so blatantly dishonest a loophole that it’s hard to imagine how they told each other with a serious face that this would hold up. It’s like pointing out that the inflating of the airbag would be associated with an accident serious enough to severely damage the fenders, proceeding to smash the fenders on your parked car with a baseball bat, and then claiming the damage to the fenders cannot be defined as severe because your airbag has not inflated.
Posted by zeynep at June 28, 2004 12:21 AM
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