Monday, April 27, 2009

By Any Other Name?

Joan Walsh: Torture is Illegal Whether it Works or Not. (VideoCafe, with transcript)

WALSH: You know, I couldn't disagree more with my friend Chris. This is not a "he said/she said" situation. This is torture. Torture is illegal. We don't sit here, Howie, and say he said murder is illegal, but she said, well, sometimes murder's not so bad. These are clear matters of law.

Ronald Reagan signed the 1988 U.N. Convention Against Torture where we committed ourselves to prosecuting people who torture. It's the law. It's super clear. It's not a partisan witch hunt or a "she said/he said" situation.

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WALSH: No, it's illegal, whether it works or not. It's illegal whether it works or not, David.

International human rights instruments

Convention Against Torture

International Committee of the Red Cross: International Humanitarian Law - Treaties & Documents
Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950.

The United States is a Signatory to the Convention Against Torture
A Summary of United Nations Agreements on Human Rights:

This convention bans torture under all circumstances and establishes the UN Committee against Torture. In particular, it defines torture, requires states to take effective legal and other measures to prevent torture, declares that no state of emergency, other external threats, nor orders from a superior officer or authority may be invoked to justify torture. It forbids countries to return a refugee to his country if there is reason to believe he/she will be tortured, and requires host countries to consider the human rights record of the person's native country in making this decision.

The CAT requires states to make torture illegal and provide appropriate punishment for those who commit torture. It requires states to assert jurisdiction when torture is committed within their jurisdiction, either investigate and prosecute themselves, or upon proper request extradite suspects to face trial before another competent court. It also requires states to cooperate with any civil proceedings against accused torturers.

United Nations, Human Rights - Office of the High Commissioner for Human Rights:
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

The War Crimes Act of 1996, a federal statute set forth at 18 U.S.C., makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment:
Laws : Cases and Codes

U.S. Code : Title 18 : Section 2340A. Torture

U.S. Code : Title 18 : Section 2441. War crimes

Finding Justice
18 U.S.C. 2340-2340A:

"Torture" means 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;...


...The requirement to obtain information from an uncooperative source as quickly as possible - in time to prevent, for example, an impending terrorist attack that could result in loss of life - has been forwarded as a compelling argument for the use of torture. Conceptually, proponents envision the application of torture as a means to expedite the exploitation process. In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption....

CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information....

Here's what we know, based on the public record as represented above. A) Torture is illegal. B) The architects of the torture regime were informed that the "harsh interrogation techniques" they intended to use were torture, and that those methods were unreliable. C) Against that counsel from a military agency, torture was deployed--excessively, and it was used in part to extract information from detainees about ties between al Qaeda and Iraq, ties that the best intelligence the administration had access to had already deemed nonexistent, in order to justify the planned invasion--the chosen war--in Iraq.

We've known much of this for years, actually, and that the moment for deciding on how to reckon for it was coming.

Arriving at both accountability and light in this toxic political environment will be a massive challenge, but one from which our leaders shouldn't shirk. [...]

The damage of doing nothing is hard to calculate, but I think there are a few guarantees of what will happen. More and more information will continue to come out about what America did. There are a handful of official accountings still expected, but once those have all been released, we'll start seeing the product of the people who were tortured, and of those who did the torturing. There are more photos coming, as many as 2,000, but there could be more that the government doesn't know about. There will be more interviews and exposes from former detainees, and possibly guards. There will undoubtedly be memoirs from the tortured and the torturers. There is the possibility of indictments of Americans in foreign countries.

In short, it's a book that likely won't end for at least another generation. When we turn a page, there will be another page after it, and another after that. It won't really end. It will fester. It will add to the cynicism many in our country feel toward their government, will add to the disconnect, will cement the knowledge that there are two kinds of justice in our country, and that the Donald Rumsfelds go free, while the Lynndie Englands and Charles Grangers rot in prison.

Our standing will be diminished among our friends in the rest of the world, and among civilized nations who would be our friends. It will be much easier for those who might not otherwise be our enemies to find justification to turn against us. The effect of the United States getting away with torture would mean other nations would feel unrestricted in using it. The countries that abide by their treaty obligations--and their soldiers--would be at a disadvantage. And everybody's soldiers--America's included--would be more likely to face torture if captured.

It will have made torture a policy choice that future presidents will feel justified in turning to. Finally, it will mean that we're a country governed by the rule of law only when the people making and wielding the laws feel like following them.

Torture by any other description
Several years ago, I asked a veteran journalist for advice.

"I'm trying to figure out if I have an ethical conflict," I began.

"If you have to ask, you do," he said. [...]

It comes down to that. We're either a rule-of-law nation -- or we're not. We can't invent definitions of torture for one type of person that wouldn't be acceptable for another, no matter how much we may despise or distrust him. As Graham put it: "I don't love the terrorists, I just love what Americans stand for."

Meanwhile, how trustworthy are the confessions of the tortured? Not very, according to those who know.

Most important, we can hardly present ourselves as arbiters and protectors of human rights when we selectively abuse those in our custody, no matter how compelling our cause. When we parse definitions of "mental pain" and "suffering," we begin to slip down the slope of moral ambiguity where deceit finds company among the dead. [snip]

It is by the cool light of day that we devise our laws. And it is by that same light that we judge our actions.

Simple as that. In posing a question, we often reveal the answer.

Apply the same construct to torture. If we have to ask, it probably is.

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