Sunday, March 20, 2005

Just What is Torture?

National Review Online's Andrew McCarthy asks more obvious questions.

After the feeding tube that sustains Terri Schiavo was removed on Friday afternoon, National Review's John Miller asked a question (on NRO's weblog, The Corner) which was penetrating in its trenchant simplicity: "If somebody put a pistol to [Terri] Schiavo's head and pulled the trigger — you know, to give the "dying process" a little nudge — would the shooter be guilty of murder under Florida law?" Well, given that we've had no small amount of propaganda from right-to-die activists about the purported humaneness of letting Terri wither and die, why doesn't someone just shoot her — or at least administer the procedure employed to execute in capital cases. It would, after all, be quicker and thus more humane, right?

It is not being done because its crude blatancy would too obviously spotlight that what's happening here is cold-blooded murder. Terri is not a person who is brain dead or a corpse being sustained by artificial means. She is alive and merely needs nutrition, like any child or incapacitated adult needs food and water. She will not be dead unless someone actually takes action to kill her. . . .

The starvation and dehydration process will cause Terri extreme, sustained physical and perhaps even mental suffering. Throughout the months of Abu Ghraib fanfare, the mainstream media, the American Civil Liberties Union, and some congressional Democrats — while contending that a Justice Department memorandum had shamed the United States by purportedly authorizing the use of torture against terrorists — repeatedly reminded us that the legal definition of torture, at least under federal law, is "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." (18 U.S.C. Sec. 2340(1).)

That is plainly what Michael Schiavo and his helpers are committing. They have her in their custody, they are preventing anyone from providing her assistance, and though she is alive and in their care, they are denying her nutrition, which will gradually cause her immense discomfort and distress. They will putter, naturally, that it's not their intention to inflict pain but to effectuate Terri's purported "choice" to kill herself. But even if we accept this claim at face value, it speaks to motive not intent.

Legally, the two are critically different. The bank robber doesn't get out from under by claiming: "I needed the money to pay for mom's surgery." His crime is intentionally stealing the money from the bank — that he purports to have had a noble reason for the robbery is irrelevant to the issue of whether he is guilty of the robbery. Similarly, people who withhold needed nutrition knowing it will cause severe pain and eventual death obviously intend the consequences of their actions. It is not a defense to a charge of torture or murder to say the victim would have wanted it that way — even in the highly unlikely event that the victim really would have wanted it that way.

Federal torture laws apply only outside the U.S. Domestic torture is generally a state matter. Not surprisingly, Florida has an anti-torture law — not to mention murder and murder-conspiracy laws — directly applicable to Terri's situation. And it is much more expansive than the federal provision. . . .

If a federal judge told the CIA: You should feel to starve and dehydrate Khalid Sheikh Mohammed until he tells you everything he knows about the 9/11 plot, would anyone contend that that was a lawful order? Would anyone claim that the judge had the authority to override U.S. anti-torture laws? Of course not — the streets would be rife with angry protesters and the editorial pages with stinging condemnation. So why are we acting as if we must simply abide a similar order from a state judge in Florida that has no purpose other than to cause enduring pain and eventual death? . . .

It is time to ask: What is the legal rationale for the judicial allowance of torture in Terri Schiavo's case? If there isn't one: (a) Why is it happening, and (b) Why isn't someone in handcuffs?

Read the whole thing -- it has more punch than my shortened version above, but you get the feel of the question: Just what is going on?