The New York Times Magazine  [Printer-friendly version]
December 10, 2006

REDEFINING TORTURE

The [New York Times Magazine's] 6th Annual Year In Ideas

By Dahlia Lithwick

There were always two narratives offered about the change in American
torture policy after 9/11. The first story -- told by the Bush
administration -- was that the Geneva Conventions mandating humane
treatment of war prisoners could be unilaterally suspended by the
president for the duration of the war on terror. But, this story
continued, our prisoners were nevertheless well treated, as required
by honor if not by law; only a few renegade bad apples abused
detainees.

The alternate version of the story went this way: from the outset of
the war, human rights groups said, Bush-administration attorneys
devoted considerable energy to secretly redefining torture. Leaked
memos revealed that widely agreed-upon definitions of torture had been
changed; ambiguous new rules started filtering down through the C.I.A.
and the military -- with lethal consequences.

The two narratives collided this summer with the Supreme Court's
decision in Hamdan v. Rumsfeld. After striking down the tribunals
proposed to try detainees at Guantanamo Bay, the court went on to rule
that the Bush administration was obligated to comply with the "laws
of war," including Common Article 3 of the Geneva Conventions -- the
provision barring torture, cruel and humiliating treatment or
"outrages upon personal dignity."

The Hamdan decision demolished the argument that the president's war
powers were limitless and beyond review. It also meant that C.I.A. and
other administration officials faced possible criminal liability for
past and future acts of abuse. So the administration scrambled to both
justify the torture and change the law.

The result was a "showdown" in Congress, wherein the president
requested the power to redefine the legal standard for torture and the
power to determine whether and how the Geneva Conventions apply. The
administration also requested the authority to keep the specifics of
its "alternative interrogation methods" secret. Even though the
president acknowledged that he had sent prisoners to secret "black
sites" for interrogation, Congress passed legislation decreasing
Congressional and judicial oversight of detainees. When Bush admitted,
in short, that the second narrative -- America tortures people in
secret -- was true, Congress effectively made it legal.

The final detainee bill, as passed by Congress in September, immunizes
some of those who abused detainees and relaxes restrictions on abuse.
It strips the courts of jurisdiction to hear whole classes of cases
and denies "alien unlawful combatants" (a classification left to
Bush to define) the power to assert Geneva Conventions claims in
courts. The bill purports to apply the Geneva Conventions, then
defines them away. It purports to prohibit torture, then defines the
prohibition away.

In October, Dick Cheney allowed that one of the most controversial
torture methods -- simulated drowning or "water boarding"-- could be
called a mere "dunking." The White House later contended that he'd
not been referring to water boarding but to something else. Perhaps.
But it's striking that in the span of 12 months, prisoner abuse had
morphed from a secret to the law to a punch line.