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The Other Torture Debate

By ARTHUR S. BRISBANE
The Public Editor
Published: May 14, 2011

IT wasn’t long after Osama bin Laden’s killing that the arguing began: did the Bush administration’s torture policy produce essential intelligence that led the United States to Bin Laden’s hideout in Pakistan?

Bush administration figures weighed in “yes” while others questioned the value of information extracted using so-called enhanced interrogation techniques, including waterboarding.

The Times published a strong editorial headlined “The Torture Apologists [ http://www.nytimes.com/2011/05/05/opinion/05thu1.html ],” which argued that while there is no “final answer” to whether information gleaned through torture was instrumental, there could be no justification for using such “immoral and illegal” tactics.

In the news columns, an article by Scott Shane and Charlie Savage [ http://www.nytimes.com/2011/05/04/us/politics/04torture.html (the post to which this is a reply)] began with the question: “Did brutal interrogations produce the crucial intelligence that led to the killing of Osama bin Laden?” In print, the story was headlined, “Harsh Methods of Questioning Debated Again.” Online, the headline was quite different and used the “T” word: “Bin Laden Raid Revives Debate on Value of Torture.”

And with that, another — admittedly smaller — controversy was revived as well: this one concerning how The Times refers to the interrogation methods that were adopted by the Bush administration after 9/11.

Readers and bloggers [ http://www.huffingtonpost.com/2011/05/04/new-york-times-story-show_n_857558.html ] alertly picked up on the nuances of language, and what some called the inconsistencies. The language of the editorial embraced the term “torture” and brooked no euphemisms for it. In the news story, though, the term “torture” came in for carefully considered treatment, and was used plainly in some contexts and avoided in others.

As for the different headlines for the news story, one referring to “torture” and one not, well, that was just confusing.

The controversy over The Times’s use of the term “torture,” which was discussed two years ago by my predecessor, Clark Hoyt [ http://www.nytimes.com/ref/opinion/hoyt-bio.html ], has its roots in the newsroom’s aspiration to be impartial in a dispute that is both political and legal.

The Bush administration offered formal legal opinions that the “enhanced interrogation techniques” it authorized were not torture under United States law. The Times adopted the view [ http://news.yahoo.com/s/ynews/ynews_ts3004 ] that labeling these as “torture” in news articles could create the appearance of taking sides.

Journalistically, The Times’s reasoning went, it was better to use descriptive terms. At the time of Mr. Hoyt’s column, The Times’s preferred adjective was in the process of migrating from “harsh” to “brutal.”

Upstairs in the editorial department, meanwhile, things have been clearer and easier all along. “We made the decision early and relatively quickly: Waterboarding, specifically, has been considered torture for a long time,” said Andrew Rosenthal, the editorial page editor, referring to international protocols.

“The Bush people were going out of their way to redefine the word ‘torture.’ We felt that our using the word ‘torture’ was really important.”

The editorial department had the easier path: it could just weigh in with an opinion. In the newsroom, though, taking sides was the wrong thing to do. The result was that The Times, in the view of some, appeared to mince words.

Other news organizations took the same approach in their news columns. A study by students at Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy found that The Times and The Los Angeles Times drastically shifted their treatment of waterboarding after 9/11, moving away from calling it torture after nearly a century of doing so.

The Times newsroom’s dilemma might have been removed if the courts had ruled whether the Bush-era methods constituted torture. According to several legal authorities I have consulted, however, that hasn’t happened.

Hina Shamsi [ http://www.law.columbia.edu/fac/Hina_Shamsi ], director of the American Civil Liberties Union’s National Security Project, said: “The techniques are legally torture. The fact that the Bush administration said they weren’t doesn’t change the law.” But, she added, “Since it became state policy under the previous administration, none of the cases in which torture was an issue has been adjudicated by the courts because the government has been successful in arguing that, based on state secrets or official immunities, the cases should be thrown out of court.”

Robert Chesney [ http://www.utexas.edu/law/faculty/profile.php?id=rmc2289 ], a University of Texas law professor who specializes in terrorism and the law, agreed that no clear ruling has emerged and emphasized the deep ambiguities that leaves.

“What makes it complicated, too,” he added, “is that there is torture as a policy or moral concept and then there is torture as a label that refers to a particular crime that could be prosecuted.”

Times news stories, in such a confusing context, generate widely divergent responses from readers and outside commentators. Karen Anne Kolling, of North Kingstown, R.I., was dismayed by one phrase in the Shane-Savage article.

“ ‘Tough treatment’ — that’s how The Times describes torture these days?” she wrote.

Another reader, Nick Keenan of Washington, D.C., had a different reaction and signed his e-mail, “confusedly yours.” Mr. Keenan told me he was used to seeing The Times avoid the term “torture” in news stories — except when torture was committed by others in other countries — but he noticed the term’s use in several places in the Shane-Savage piece.

“Has the policy changed so that it is now acceptable to use the word ‘torture’ to describe torture performed by Americans?” he asked.

From my own reading of the Shane-Savage article, and after querying Mr. Shane and Bill Keller, the executive editor, I would say that Times policy on this appears to be in a state of equipoise — holding steady right in the middle. In fact, it may have migrated some since Mr. Hoyt wrote about it — “harsh” and “brutal” are still in evidence but the use of “torture” is sprinkled throughout, as well.

Mr. Shane said he had no reluctance using the word “torture.” He said, though, that he had “avoided explicitly taking sides in the dispute over whether these methods met the legal definition of torture.” And he noted that, partly because some interrogation techniques clearly fall short of torture, he sometimes used softer terms when characterizing a range of methods.

For his part, Mr. Keller affirms that The Times has not “banished the word ‘torture,’ but we are careful how we use it” and avoid its use in contexts where it might appear The Times is taking sides.

Is there a path out of this wilderness? I believe so.

The Times should use the term “torture” more directly, using it on first reference when the discussion is about — and there’s no other word for it — torture. The debate was never whether Bin Laden was found because of brutal interrogations: it was whether he was found because of torture. More narrowly, the word is appropriate when describing techniques traditionally considered torture, waterboarding being the obvious example. Reasonable fairness can be achieved by adding caveats that acknowledge the Bush camp’s view of its narrow legal definition.

This approach avoids the appearance of mincing words and is well grounded in Americans’ understanding of torture in the historical and moral sense.

Click here [ http://www.hks.harvard.edu/presspol/publications/papers/torture_at_times_hks_students.pdf ] (PDF) for the study mentioned in the public editor’s column by Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy.

© 2011 The New York Times Company

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