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Does It Matter If You Call It ‘Torture’?

As every lawyer knows, language matters. Bill Clinton was famously impeached because his definition of “sexual relations” didn’t include oral sex – a definition that Republican lawyers didn’t agree with.

So does it matter if the interrogation techniques that were used, authorized and encouraged by senior officials in the US government for use on suspected Taliban or al Qaeda detainees – as confirmed by the recent Senate Armed Services Committee Report on the Treatment of Detainees in US Custody – are called “torture”?

You bet it does.

The role of language in the ongoing debate over what to do about the Bush administration’s authorization of torture and other “extreme” interrogation techniques was the subject of a thoughtful discussion last night in New York sponsored by PEN America and the American Constitution Society.

New Yorker writer Jane Mayer, author of the highly influential book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, warned against getting hung up on the label “torture” and focusing instead on the fact that either way, this was “deliberate cruelty” and morally wrong.

But as every lawyers knows, there are consequences to the language used. The advice of lawyers may well be why, as the lawyer and Harper’s writer Scott Horton observed last night, much of the mainstream news media, including such supposedly liberal-leaning newspapers as The New York Times and The Washington Post, have steadfastly refused to use the word “torture” — even when describing waterboarding, stress positions, sleep deprivation and other interrogation techniques that were used by US officials on detainees and have long been considered torture by US authorities.

As I’ve written before, waterboarding in particular has for more than half a century been prosecuted by US authorities as a form of unlawful torture. A US federal judge has publicly made the same point. (And VP Dick Cheney recently admitted to authorizing it.) Still, producers for PBS’s Jim Lehrer News Hour told Horton, as he was being prepared to appear on that show recently, that he musn’t rush to judgment in describing the techniques while on camera. Using the word “torture” on the show, Horton understood, was verboten.

The result is that the mainstream media has allowed the Bush administration to give itself a pass, to whitewash what it did as “harsh,” “tough,” or “extreme interrogation” — which after all doesn’t sound unreasonable in a war against terror – and to consistently deny that this conduct violated the law.

As Goldsmith wrote in his book, The Terror Presidency, quoted in the recent Senate report, Bybee’s memo essentially said to administration officials: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.”

The Administration’s lawyers – Bybee, David Addington, John Yoo and AG Alberto Gonzales – all knew full well that it matters what you call it. Because if the defense of “acting under presidential authority” fails – in other words, if it turns out that the president is actually required to follow the law – then if they’d committed torture, in violation of the federal torture statute, the Geneva Conventions and the UN Convention against Torture – then they could all be in big trouble.

That is, of course, what many of them are probably worried about now, and why legal scholars and human rights advocates worry that the Bush administration will issue a blanket pardon to everyone who was involved.

After all, a lame duck can still lay eggs.

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