The following is a post we wrote Jan 15, 2008, and has not been changed. It has the same relevance now as it did then.
VB

    Like alcoholism, there are both legal and cultural definitions of "torture". The cultural definition is the older and more ingrained in popular understandings, but also the least understood, since it reflects a worldview that lawyers, politicians and polemicists would just as soon ignore. With alcoholism, there's even a good reason for this, since, as you can imagine, a southern Baptist community may find one of its members who takes a daily nip to be an alcoholic, while in Boston the Southies may consider that same fellow a tea-totaller. Legally, the Constitution took care of these regional contradictions with the Tenth Amendment, and left the cultural distinctions alone.
    The first problem with "torture" is it belongs to federal jurisdiction, although I'd wager a state trooper engaging in it would still have to answer to his state courts first. The second problem is that under federal law, there are ever-changing goal-posts, often with a view to steering the more time-tested cultural understandings in a different direction. (Depending on the issue, the record of this is at best mixed, compare Brown v Board of Education with Roe v Wade.)
     The United Nations Convention Against Torture (1984) appears to be the final "first" word on the subject, and is the law of the land in the United States (under USC 18, Part I, Chap 113C, Sec 2043). I say "first" word since each ratifying nation appears to claim its own jurisdiction as to just what "severe pain or suffering, whether physical or mental" means. This is typical "lawyer bail-out language" to appease disparate nationalities and their sense of sovereignty. You can see how China might define "torture" entirely different from how US federal courts might define it...taking us straight back to the Baptists vs Boston on the comparative sins of a daily swig of Jamesons.
    How the UN treaty language was designed says much about the stupidity of the argument about what is and is not torture under US law. What conduct falls within the "pain, suffering, physical and mental" criteria is a big issue, but specific conduct, such as water-boarding, can only be proscribed on a case-by-case...and nation-by-nation basis. It can't be inferred, then applied retroactively, which so many lawyers would like to do. Even The Hague is looking down the barrel of a political rather than legal issue, for as much as it may wish to drag Bush, Cheney and Rumsfeld before its bar, it can't without having to say nakedly why Clinton and Hu, just to name two, aren't also there. If you had been  following the impeachment-on-war-crimes travails of G W Bush in 2006-2007, you can see how insane the sideshow has become, as many (most?) law faculties have claimed their own private jurisdictions in defining torture, without the help of ordinary legal process, such as the courts. That's how Abu Ghraib became a showplace for "American torture", when in fact it was cruel and stupid abuse (also a criminal offense) falling well short of the more offensive crime of torture.

     So much for preface. How does American culture sees all this torture stuff? Thanks to Jack Bauer we've seen, and been able to decide that there is a cultural component, even context, to deciding this issue which, I am certain, the women of the law faculties (my apologies to real women, I say this as a Mohawk might use it against an Algonquin) both don't understand, or agree with.
     Jack Bauer's torture, in the early years of "24", would qualify as torture under any legal definition, at least where he actually inflicted harm. I won't argue that. He even said last week in a new episode he was ready to pay for those crimes, as a way to showcase the issue. But he often only threatened it, and there the crime becomes more problematic, at least in the eyes of culture. In one case, he made an Arab think he had harmed his family (an illusion) when he in fact hadn't. The deception worked, and there was a furthering of the story, and what Aristotle would have said, "...a Good End was had by all." Lawyers may make hay with this sort of conduct, but the people ain't buying it. They approve.
    Illegal? Hell, yes. Approved by the American people anyway? Hell yes. Why? Jack Bauer provided a cultural real-time context for approving genuine torture that made the pretend-wannabe-torture of water-boarding all the more sensible, especially since it caused the tough-guy mastermind behind 9-11 to cry like a baby, sing like a bird, and rat out everyone he could recall having to do with past, present and future plans to harm America...thus saving hundreds if not thousands of lives. And they only scared him.
    Get it? They scared him. America gets it, even if the law-gals back at Cal-Berkeley don't. And that's probably the rub.
    For what's important now, today (so get ready) is that like rendition, a Clinton/CIA "crime of pragmatism" (I disapprove of this practice generally) that became an albatross around Bush's neck, all these imagined high crimes of torture will disappear very soon once that the tools and rules for their use are back in the hands of other people, er, socialists, with altogether different purposes. They will disappear from Page One for the same reason torture in China...against Falun Gong...will never be a cause celebre in the US.

    This means it's time to inquire a little deeper into that cultural component of torture, set against the back drop of this eternal struggle between men who would free and men who would rather they not.
    Moses Sands loved the old Texas Rangers, which he saw as the model for democratic law enforcement in the developing world. I don't know if he every read Larry McMurtry's Lonesome Dove or saw the television series, but I had, so when he mentioned them in his piece on democracy in Iraq (his finest sermon) back in Ought Four, I understood what he was talking about.
     He asked if I'd ever considered the difference between the uneducated, tough, even mean men who went out into the wilderness and the men they tracked down and captured? Depending on whether they were heading out to the Staked Plains or heading back to Austin, or the availability of water or provisions, they often as not would just hang those bandits on the spot, with no trial, no due process. Just a "May God have mercy on you soul...Amen", and slap the pony.
     "What made these barbaric men different from the low-down scum they was hanging?", Moses asked.
     Then he answered himself. For one, at the end of the day, they could hang up their guns. The bad guys wouldn't. And two, they would hang their guns up because they were invested in something the bad buys weren't, something good, something bigger, and something that would outlive them. (Moses always believed in the ability of the inarticulate to show the nobility of their souls in other ways. He looked for it.)
     I recalled the hanging of Jake Spoon in Lonesome Dove and knew immediately what he was talking about. That scene was powerful, not so much because of the terrible weight carried by Gus and Woodrow for having to hang their old pard, but in Jake's understanding that he had crossed a line which he could never retreat from. At least in this lifetime. It was a poignant testament to even the harshest of understandings of the differences between right and wrong.

     Like Tom Sawyer's affectionate name for Jim in Huckleberry Finn, I fully expect to see films and books to be withdrawn from library shelves in the next few years that portray such barbaric lawlessness as honorable and noble...or worse, justified. In fact, the committees are already getting organized. Look for it.
     What won't disappear will be the threats or inflicting of "severe pain or suffering, whether physical or mental" to get information, and get it right away, when needed. All that will change will be the political or cultural end being pursued. That's the cultural component.
     All that will have changed will be the justifiers...
     ...who will not hang up their guns at the end of the day.
Vassar Bushmills