Kant and torture

My excellent (and hilarious) undergraduate ethics professor, David Sussman, recently published an article in an international law review that everyone should read (it's called "Defining Torture"). Philosophically, however, it is also interesting, because it uses Kant in a creative way that somehow (that is, because of Sussman's genius) does not need to distort the original sense of Kant. In short, it uses Kant's moral reflections on the categorical imperative (but also his lesser-known texts on religion) to define torture.
Basically, it revolves around looking at the feeling of the categorical imperative--constraint, anxiety, provocation into action and self-legislation--in its opposite manifestation. When the categorical imperative presses upon someone (this is the "imperative" part of the phrase) in order to legislate from their constituted human essence (this is the "categorical"), Kant says it constitutes the essence of human freedom, the height of possible human activity. However, torture, Sussman claims, can be said to be the mere opposite of this--that is, this pressing upon someone in order to respond to their environment done passively rather than actively or with freedom is torture. Torture is the unfree experience of the categorical imperative: as Jean Amery (whom Sussman cites) says, this constant prodding in order to make one respond while at the same time denying the ability to experience the human essence (the categorical) freely, makes all that is around one (even the body) unable to bear, as one is pushed further and further into passivity. One can see from an example of Kant's how quickly freedom can indeed turn from something experienced actively to something taken advantage of passively:

The freedom [that engenders enlightenment] is the least harmful of all, namely, the freedom to use reason publicly in all matters. But on all sides I hear: "Do not argue!" The officer says, "Do not argue, drill!" The tax man says, "Do not argue, pay!" The pastor says, "Do not argue, believe!" (Only one ruler in the World says, "Argue as much as you want and about what you want, but obey!") In this we have examples of pervasive restrictions on freedom.
-from "What is Enlightenment?"

When the ability to respond freely--i.e. without passivity, without response as a possibility of existence being forced upon you--is present, there is no torture. But when this response--this ability to argue or dispute, to discourse or to act--is forced upon someone, all that results is "obeyance." Where this "restriction on freedom" is absolute, where there is no ability to respond in a way that is not prompted by the environment or by the people one is engaged with, there is torture.
As Sussman says, this is an infinitely better definition (which indeed could be codified legally) than the current administration's (or the U.N.'s, for that matter) one which revolves around the level of pain administered. Pain is only an effect of the use of this type of power (that forces response upon someone absolutely), only a byproduct of this "restriction on freedom."