On Torture: The New York Times Gets the Right Result for the Wrong Reasons

On Torture: The New York Times Gets the Right Result for the Wrong Reasons
August 8, 2014

I’ve been trying to feel good about the New York Times’ decade-late decision to call torture torture—that is, to “deploy the English language to describe things,” as the Washington Post’s Erik Wemple memorably put it. Obviously, late is better than never, and I don’t see how a reasonable person could possibly quibble with the result here. But the decision’s purported reasoning rendered me partially anhedonic about the result. And this morning, I think I realized why.

The problem is, the Times doesn’t acknowledge that it never should have agreed to adopt the government’s mandated nomenclature—Enhanced Interrogation Techniques—instead of plain English to describe behavior that the Times had always called torture until the Bush administration told them not to. Instead, it explains its reversal essentially by noting there had been a “dispute” about the word torture before, and now there isn’t. So while we get a good result this time, what happens the next time the government alerts the New York Times of the alleged existence of some sort of linguistic “dispute”?

I wrote about a similar phenomenon recently, noting that it made no sense to cheer Obama for “banning” torture. Yes, the result might be good, but the reasoning behind the result undermines the rule of law by implying torture is a policy choice rather than a crime. Results matter… but so do the long-term effects of the reasoning behind them.

Here, that reasoning is problematic and perverse. A few highlights:

When the first revelations emerged a decade ago… The word “torture” had a specialized legal meaning as well as a plain-English one.

This makes no sense. We’re talking about a newspaper, not a courtroom brief. There must be hundreds of words that have legal as well as plain-English meaning: murder, rape, rob, infringe, conspire, to name just a few off the top of my head. Is it really Times policy to eschew all such words? Of course not. So the “but it also has legal meaning!” excuse is difficult to take seriously.

Moreover, the underlying legal definition of torture is pretty much what the Times wound up using anyway:

“Torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information…

Even when those “first revelations emerged,” was there any question at all that they involved severe pain or suffering? So even from the start, torture was obviously the appropriate and accurate word both in its “specialized legal” as well as its plain English meaning. The Times even acknowledges as much in the last paragraph of its explanation:

So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

Is the Times saying it only just figured out that the plain meaning of torture and the legal meaning are virtually one and the same? They had no way of knowing this until just now?

The Justice Department insisted that the techniques did not rise to the legal definition of “torture.”

This is starting to sound a bit more honest. The problem isn’t whether there’s some general “dispute.” The problem is government pressure. But really, does it make any sense for a free press to base its linguistic decisions on what the government “insists” on? This is the key question behind the Times’ conversion to Newspeak, and the new reversal does nothing to address it.

Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee and that other techniques, such as locking a prisoner in a claustrophobic box, prolonged sleep deprivation and shackling people’s bodies into painful positions, were routinely employed in an effort to break their wills to resist interrogation.

These things have been understood at least since EmptyWheel’s Marcy Wheeler first broke the 183-times story—over five years ago. Suggesting that this information is only “now” being understood is appallingly misleading. If the Times’ “understanding” of these facts were really behind its linguistic about-face, it would have corrected course over five years ago.

The penultimate paragraph is the most problematic of all:

Meanwhile, the Justice Department, under both the Bush and Obama administrations, has made clear that it will not prosecute in connection with the interrogation program.

Again, a bit of honesty leaks through: what’s really been behind the Times linguistic decisions from the start is the government. The Justice Department insisted X, and we did X; the Justice Department has made clear Y, so we’re now doing Y.

The result is that today, the debate is focused less on whether the methods violated a statute or treaty provision and more on whether they worked—that is, whether they generated useful information that the government could not otherwise have obtained from prisoners.

Whether torture “worked” is the language of policy, and has the effect, if not the purpose, of obscuring the far more relevant question of why no one has been prosecuted for ordering and carrying out something US domestic law and ratified treaties clearly make illegal. Beyond that, I can’t do better than The Intercept’s Jonathan Schwarz, who summed up the Times position this way:

In that context, the disputed legal meaning of the word “torture” is secondary to the common meaning: the intentional infliction of pain to make someone talk.

Again, why is a general-interest newspaper purporting to defer to the legal meaning of words rather than to their ordinary use? Especially so because, again, when it comes to torture, the legal and ordinary meanings are virtually identical.

I think that more than anyone else, NYU media professor Jay Rosen nailed what’s going on here with this:

So this is why I can’t be enthusiastic even about a good result. What the Times needed to do was acknowledge it never should have deferred to the government; that its position from the start was insidious, incoherent, and indefensible; and that it has learned from its egregious error of judgment.

But that’s not what happened. Probably in an attempt to save some modicum of face, the Times has merely treated a single unpleasant symptom, while leaving itself as vulnerable as ever to the underlying disease.

Barry Eisler is a best-selling thriller author who spent three years in a covert position at the CIA Directorate of Operations. You can read more about his work at his website.