At the New York Times today, I join in an exchange on the conclusion of a Pentagon official named Susan Crawford that detainee Mohammed al-Qahtani, the so-called 20th hijacker, was subjected to torture. As you might imagine, mine is the minority view. Bottom line:
Ms. Crawford’s conclusion is another instance of the military getting it wrong. Isolation and temperature variations of the type we are talking about here are not torture. To contend otherwise is to trivialize something that is truly heinous. It may be politically correct, but it is wrong. American law has always maintained a bright line between the egregious pain and suffering caused by actual torture and other forms of abusive conduct. Ms. Crawford’s suggestion that abusive conduct that has a “medical impact” meets the “legal definition of torture” is preposterous.
What impact will it have on cases? Exactly none. In the first commission case, a judge ruled some confession evidence could not be admitted at trial because it was adduced by coercion. That is the standard: “Was the declarant’s will overborne?” Not, “Was the declarant tortured?” Ms. Crawford’s assessment that “torture” occurred is not proof that it did, nor should any defendant be required to demonstrate that he was tortured in order to have confession evidence suppressed.
I did not have time and space to add this observation, but I will now. John Yoo has come under blistering criticism for suggesting, while at DOJ’s Office of Legal Counsel, an unduly narrow definition of the severe pain and suffering required to prove torture — calling for the type of intense pain caused by organ failure or death. I don’t see how people can condemn John and applaud Ms. Crawford, who uses an impossibly broad definition. Stubbing one’s toe can have a “medical impact” … that doesn’t make it torture.