Saturday, November 3, 2007

Torture Debate Relies upon Definition by Ostention

The row over Attorney General nominee Michael Mukasey's views on whether the technique of ‘water boarding’ constitutes torture (1) (2) highlights the difficulty in dealing with the inherently subjective nature of torture definitions. The desire to clarify these statutory definitions naturally leads to an attempt to define torture by ostention – to point to instances of torture as opposed to enunciating the concept's necessary and sufficient conditions. Almost unavoidably, certain actions are labelled as torture not by being entailed by the concept of torture, but because they have been linked with such a concept by means of direct reference.

For example, the relevant US federal statute defines torture as an act "specifically intended to inflict severe physical or mental pain or suffering" upon a person in custody (3). Likewise, the UN Convention Against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted" on a prisoner by a public official (4).

These statutes do not define torture to include all acts of mistreatment that may cause suffering, but only those of a 'severe' nature (5). (The Geneva Conventions (6), while proscribing torture, don't actually get around to defining it (7)) Thus, the prescriptive force behind these statutes relies upon the particular interpretation of ‘severe suffering’ being employed.

The US Army Field Manual provides a good example of practicalizing a definition by ostention. It lists electric shock, food deprivation, any form of beating, and the infliction of pain through chemicals or bondage as examples of treatments that are forbidden and labelled as torture (8). While the list is not meant to be exhaustive, it does demonstrate the utility of using specific examples as pegs on which to hang more general definitions. This is not to say that an argument which relies upon such a mechanism is any less valid. Rather, it is an important point to recognize the structure of such an argument so as to better understand its implications.

Many of the opponents to Mukasey’s nomination are, on a formal level, making this same variety of argument. That is, they identify a repugnant act with the term ‘torture’ by way of an intuitive association and not through a reasoned deduction. This should come as no surprise as the subjective nature of the term’s definition assures ample room for legitimate disagreement over whether any particular act constitutes torture.

It is worth noting that no reputed source has argued that water boarding is a legitimate interrogation tactic. This may be because we, by and large, share similar intuitions about what rises to the level of reprehensible treatment. For our sake this is a good thing. But it should come as no surprise that intuitions are apt to disagreement. This is especially the case when contemplating a statute that is worded in necessarily general terms, such as that which defines torture. Regardless of the rightness or wrongness of Mukasey’s views on what constitutes torture, honest disagreement should be both expected and tolerated if the term is to be capable of any meaning at all.

Fixing the referent of a subjective term such as 'torture' by ostention is, ex hypothesi, an integral part of understanding the term in use. However, lawmakers and pundits alike should not make the mistake of believing this process to fix the meaning of the term in any objective sense.

(1) Ferraro, Thomas. "Mukasey Draws More Heat on Torture." The Washington Post. October 30, 2007.

(2) Bolton, Alexander. “Mukasey Punts on Torture.” The Hill. October 31, 2007.

(3) Title 18 USC, Part 1, Chapter 113C, Section 2340

(4) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I, Article 1

(5) Garcia, Michael John.
"U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques." CRS Report for Congress. January 12, 2007, p. 2.

(6) Geneva Convention

(7) Elsea, Jennifer K. “Lawfulness of Interrogation Techniques under the Geneva Conventions.” CRS Report for Congress. September 8, 2004, p. 9.

(8) Ibid. p. 10.
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