Saturday, May 02, 2009

Torture, (ill)Legally

On Hardball recently (and practically always), 2009 Pulitzer-prize winning journalist Eugene Robinson explained that there are three components to the torture debate: moral, effectual, and legal. Not surprisingly, little attention has been given to the last facet, given that legal analysis does not yield effectively to video or any visuals whatever.

The issue of morality and effectiveness of torture are intimately intertwined. If, say, sleep deprivation is immoral in most instances, is it so if a detainee is supposed to have information relating to a terrorist plot about to be executed? And is morality affected by the degree of certitude that the detainee has the information? And what about waterboarding or having a detainee stand naked? Are they more or less immoral than sleep deprivation, and to what extend does the nature of the information to be gleaned affect the acceptability of that form of torture?

The legal angle, however, stands alone. "Enhanced interrogation methods" conducted by an agency administrator, CIA or FBI employee administering it, private contractor administering it, high government official, or lawyer submitting the brief setting out its alleged justification can be evaluated apart from the morality or effectiveness of the action.

The Geneva Convention Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 proscribes enhanced interrogation, or whatever the behavior may be called, when in Part III, Section 1, Article 17 it declares "no physical or mental torture, nor any other form of coercion, may be initiated on prisoners of war to secure from them information of any kind whatsoever" (emphasis mine). Common Article 3 prohibits "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatments." In a rebuke to the Bush Administration, the U.S. Supreme Court ruled that it applies to terrorism suspects.

The Army Field Manual, which proscribed "humiliating and degrading treatment" and other tactics from the Convention,

expressly prohibit(s) acts of violence or intimidation, icluding physicial or mental torture, threats, insults, exposure to inhume treatment as a means of or aid to interrogations....(such acts) are criminal acts punishable under the USMJ.

And though not directly addressing the legal issue, the Manual interestingly goes on to observe

Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.

This manual, dating from 1992, apparently was superceded in 2005 by FM 2-22.3 Human Intelligence Collector Operations, which made some of those methods available for interrogation- but also notes "in contrast to the previous version of the manual, this edition states that the Geneva Conventions are to be applied to all detainees in US military facilities."

The United States Code Title 18,2340A demands

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

The alleged offender need only be a national of the U.S.A. or present in the U.S.A.

The United States Code Title 18.2441 in turn prescribes the penalty for a war crime, explains that the alleged offender can be either a member of the Armed Forces or a U.S. national, and asserts a war crime may include "a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character." Among the "grave breaches" of Article 3 is

Torture.- The act.... specifically intended to inflict severe physical or mental pain or suffering... upon another person.

According to United States criminal code, then, torture was committed by individuals subject to the law and is punishable by incarceration or, in the extreme, execution.

More comprehensive is the (United Nations) CONVENTION AGAINST TORTURE
and Other Cruel, Inhuman or Degrading Treatment or Punishment
. In Article 1, torture is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Article 2 specifies:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.


Article 4 specifies:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
3. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.


And Article 12:

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

A neutral look at the United Nations Convention Against Torture, then, would convice an objective reader that our nation has committed torture and must take steps (as President Obama has) to prevent torture. Note also that the Convention precludes any rationale ("no exceptional circumstances whatsoever"), and extends the prohibition to anyone complicit in torture.

The U.N. Convention Against Torture has been codified in U.S. law by enactment by Congress under 2340-2340A. It thus, unequivocally, legally, applies to the United States.

The preceeding is not meant to minimize the importance of analyzing the efficacy or morality of torture. But we know that the behavior which has been committed: a) constitutes torture, according to the Geneva Convention, the Army Field Manual (even as adapted during the Bush 42 Administration), United States Code, and the United Nations Convention Against Torture; b) is required to be punished, according to the Army Field Manual, U.S. Code, and the U.N. Convention Against Torture; c) cannot, according to the Convention and made applicable to the nation by statute, be legally justified on the basis of circumstance.... or because of an order from "a superior officer or public authority"....or because the individual was merely complicit in, rather than having committed, the act.

The least demanded of a civilized nation is a "prompt and impartial investigation," as the Convention requires. Anything less constitutes a surrender of what should be our commitment to the rule of law and to being a nation of laws, not of men. And if a thorough, impartial investigation is frightening to Obamaphiles and appalling to conservatives, they can be comforted that the most inclusive and compelling document, the United Nations Convention Against Torture, was signed by the United States in 1988. By President Ronald Wilson Reagan.

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