The new legal standard is indeterminate for both the prospective torturers and their victims. And that's precisely how the president wants it.
In a superb article last fall in the Columbia Law Review, professor Jeremy Waldron argued that there is "something wrong with trying to pin down the prohibition on torture with a precise legal definition." That it seems to "work in the service of a mentality that says, 'Give us a definition so we have something to work around, something to game, a determinate envelope to push.' " And indeed it would be worrisome if the president were trying to create a sharp, bright line-rule for when interrogation crosses into torture, so that his agents could dance right up to it and stop, or find tricky ways to tunnel under it. But I suspect that the Bush administration doesn't seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don't work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.
I once suggested in the context of presidential signing statements that legal obfuscation is enormously attractive to President Bush. It means all but the most highly credentialed law professors and government lawyers are constantly confused; it means subsequent legal claims that interrogators "did not know that the practices were unlawful" have real credibility. And perhaps, most importantly to this White House, it obscures where things have gone awry up and down the chain of command. One possibility, then, is that all these eleventh-hour redefinitions of torture are presidential attempts to "afford brutality the cloak of law," in the words of Supreme Court Justice Felix Frankfurter. But increasingly, it seems clear that its real purpose is simply to brutalize the law.
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