Tortured reasoning

Glenn Greenwald points out a striking editorial inconsistency on the part of the New York Times, which has an official editorial policy of refusing to call waterboarding “torture” when it’s carried out by the U.S. government, while describing the same actions as torture when they are performed by other regimes.

The Times’ justification for its treatment of the contemporary American practice of waterboarding is that, since there’s a political controversy in the United States right now about whether waterboarding is torture, it would be a form of inappropriate editorializing to call waterboarding torture in its news pages. (Apparently this controversy doesn’t cross geographical or historical borders, so according to the Times waterboarding is still torture when it’s carried out by Nazi Germany and the People’s Republic of China).

All this raises the awkward issue of whether it’s sound journalism to automatically suspend the willingness to engage in moral judgment, or indeed to employ simple common sense, as long as sufficiently powerful political actors within our society are insisting that we do so. Ignoring for the moment its inconsistent editorial practices in regard to the matter, the Times is taking the position that since that, post-9/11, the Bush administration started claiming that waterboarding wasn’t torture, and since there hasn’t been a definitive ruling on the question by the federal courts since then, the paper is precluded by the canons of “objective” journalism from calling waterboarding torture. In the words of NYT Washington Bureau Editor Douglas Jehl:

I have resisted using torture without qualification or to describe all the techniques. Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?

It seems to me that in regard to this issue, the Times’s methods have become unsound. First of all, the notion that there’s an actual legal controversy as to whether waterboarding is torture is spurious. Torture isn’t a legal term of art: the legal meaning of torture is in no significant way different from the ordinary understanding of the term. Completely immobilizing a man and then beginning to drown him, thereby subjecting him to extreme anguish and overwhelming panic, is obviously torture in the ordinary meaning of the term. Indeed I’m fairly certain waterboarding remains torture even in the minds of of John Yoo and Jay Bybee, as long as they’re not being paid to render an opinion that it’s not when it’s being carried out by their employer of the moment. The fact is that until the Bush administration found a few lawyers who were willing to commit some unnatural intellectual acts, it really hadn’t occurred to anyone in the U.S. legal system to question whether waterboarding was torture, since it so obviously is in both legal and lay parlance.

But beyond this, what difference should it make if the Supreme Court ends up harboring five John Yoos and Jay Bybees? Would that somehow stop waterboarding from being torture? This would be true only for people prone to the sort of legalistic authoritarianism that causes them to suspend their own powers of moral and political judgment, as long as a sufficiently powerful person is uttering the words “It is so ordered.” And such people shouldn’t be editing the New York Times.