In the Bush administration’s most infamous “torture memo,” dated August 1, 2002, Assistant Attorney General Jay Bybee wrote to then-White House Counsel Alberto Gonzales: “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” An American interrogator who inflicted anything short of this level of pain on a detainee in the war on terror would not be committing torture, he argued, and therefore could not be charged with that crime under the federal antitorture law.
Bybee’s purpose in adopting such a definition of torture was clearly to give interrogators maximum leeway to inflict physical pain in order to obtain information. Where did his definition originate? In international law? No. From scholarly commentary on torture? No, again. Bybee drew on an entirely unrelated body of law, federal health-care law, which mandates the alleviation of pain rather than justifying its infliction. In my judgment, Bybee’s reasoning is not simply faulty, it is perverse. It exemplifies the sort of reasoning that has given us lawyers a bad name.
The federal antitorture law prohibits acts “specifically intended to inflict severe physical or mental pain or suffering,” but leaves those terms undefined. Seeking a definition, Bybee did not turn to the most obvious sources for interpreting the statute, such as the UN Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment, which the U.S. antitorture law was designed to implement, or to the significant body of international case law and scholarly commentary interpreting that convention. Instead, he googled the entire thirty-eight-volume United States Code in search of the phrase “severe pain.” He discovered several general statutory provisions, but none dealt with torture or international law more generally. In fact, they all fell under the heading of health-care law; as Bybee acknowledges, they “defin[e] an emergency medical condition for the purpose of providing health benefits.” What Bybee does not acknowledge is that the central example of the provisions he cites is found in the Emergency Medical Treatment and Active Labor Act, colloquially known as the “antidumping law.”
That law was passed by Congress in 1986, in response to public outcry after hospital emergency rooms were found to be turning away or “dumping” seriously ill patients who were not able to pay for treatment. The law requires every hospital that receives funds from federal programs such as Medicare to perform a medical evaluation of each person who seeks treatment in its ER. If the individual has an “emergency medical condition,” the hospital must stabilize that condition before discharging the patient, or arrange for a transfer to another facility. What is an “emergency medical condition”? It is a condition that manifests acute symptoms of such severity (including severe pain) that “the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual...in serious jeopardy”; “serious impairment to bodily functions”; or “serious dysfunction of any bodily organ or part.”
By manipulating this definition of “emergency medical condition,” Bybee concocted his definition of torture as severe pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” How did he manage it? In a nutshell, Bybee rearranged the elements of an “emergency medical condition” found in the antidumping law to define the term “severe pain,” and then reasoned that when it came to interrogating alleged terrorists, anything up to that threshold did not count as torture. But Bybee’s attempted definition of “severe pain” is totally spurious, and not simply because it is circular. Bybee also distorts the elements of an “emergency medical condition” that he invokes: the antidumping law requires serious dysfunction of an organ or body part, not organ failure, as Bybee alleges; and it speaks of serious jeopardy to health, rather than the threat of death.
What is most objectionable in Bybee’s misuse of the definition of an “emergency medical condition” is his utter insensitivity to the larger moral purpose of the statutory provisions he is interpreting, for the bottom line of the antidumping law and its corollaries is that severe pain constitutes an emergency medical condition that demands immediate treatment. Respect for our common humanity means that virtually nothing is more important than alleviating such suffering. Efficiency is not more important: Medicare HMOs cannot require prior authorization from enrollees who seek emergency treatment for severe pain. Nor is money more important: hospital ERs are legally obliged to treat patients who are in severe pain, regardless of their ability to pay. Even immigration status can’t trump treatment: in 2004, the U.S. House of Representatives balked at proposed legislation that would exclude illegal aliens from the protection of the antidumping law.
For Bybee (now a Bush-appointed judge on the U.S. Court of Appeals) to use a group of statutory provisions designed to alleviate physical pain in order to justify inflicting pain is literally perverse (perversus)—it is argument turned the wrong way ’round. His twisted attempt to limit the prohibition against torture by drawing on bits and pieces of a definition of “emergency medical condition” fashioned for an entirely different purpose undermines the fundamental moral insight the antidumping and antitorture laws have in common: the conviction that fellow human beings experiencing great physical suffering exert a moral claim on us. Turning our faces away when we have the power to alleviate the grave pain of others not only derides their human dignity, but it also compromises our own. Intentionally inflicting such pain, even as a means to a very important political end, is an unspeakable crime.
Related: Kristian Williams, Legitimizing Torture