Thursday, May 21, 2009

The legal case FOR torture prosecutions

As the Torture Watch continues in the blog-o-sphere, there are a lot of defenders of the Bush 43 Administration who do so based on one or more of the following strawman:

  • You say we tortured terrorists, but we do it to our own servicemen all the time, so it can’t be torture. A variant is to ask if waterboarding is torture for the same reason.
  • There’s no legal basis for calling this torture, especially since we’re at war and so we have to circumvent the laws in order to keep our people safe.

There are a host of others, but I think you get the point. What they are driving at, as Glenn Greenwald so elegantly puts it, is proving that Serious and Thoughtful People know more then we mere plebs do, and so we must TRUST them with our very existence, lest we all vaporize in the latest terrorist attack.

Now I’m no lawyer. I’m an oceanographer. That means I’m trained to look at things skeptically, ask questions, formulate hypotheses, test them, and then draw conclusions. In this case, that means I want to know what the law actually says we can and can’t do.

So I went to Google, and there, from the U.N. Convention on Torture (At Part 1, Article 1, §1) we read (highlighting mine):

For the purposes of this Convention, torture means 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Scrolling on down, we fin in Part 1, Article 2:

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 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. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Further, in Part 1, Article 4:

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.

And way down in Part 1, Article 16, we find:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

Sadly for my many conservative, torture-defending sparing partners, the language could not be clearer on what torture is, and how we as a nation are supposed to deal with it. Basically, the Convention says you can’t inflict severe mental or physical pain and suffering intentionally, especially to get a confession or obtain information. It also says you can’t do that at the direction of any public official; that orders from a superior officer aren’t reason to do it, and that you can’t even do it under the rubric of war. And it says you can't inflict any other cruel or unhuman punishment even when told to do so by a public official or anyone acting in a public capacity.

Ok, I can hear them saying, why do you think this applies to us? It is, after all a U.N. convention, and what right does the U.N, have to tell us what to do?

It’s an interesting argument, until you read the U.S. Constitution. It says in Article Six, Paragraph 2:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not with-standing.”

Translating that to modern, non-legal English: When the United States enters into a Treaty (which we do by Presidential Signature and congressional Ratification), that Treaty becomes Federal Law, and the language of the treaty becomes binding on the U.S., and particularly our judicial system. And Since President Reagan signed the Convention in 1988, and COngress Ratified it in 1994 (Under Republican control, as I recall), the Convention is the highest law of the land.

In other words, since the Convention on Torture says explicitly what torture is, and that it can not be sanctioned by any public official or in any public capacity, and since it says that the signatories must criminalize the act, and since it says war is not an excuse for torture, And since our own Constitution says this is our highest law; then the U.S. legal system has NO CHOICE but to investigate and prosecute any official for torture

“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.”

The President, Vice President, White House Counsel, their Chiefs of staff, and the CIA and military officers are all public officials. The law is exceedingly clear. For anyone to pretend otherwise, is, as I see it, to destroy both the legal framework of the Constitution, and to pervert the intentions of our Founding fathers so they can engage in a sick, revenge drive blood bath. We need to eat our humble pie, investigate and prosecute. Otherwise, we are now a Nation that has 280 Million accomplices to torture in its name.

Shame on us!

UPDATE: Hilzoy has the best response to Mr. Obama's proposal for indefinite detention I've seen to date.


Mike at The Big Stick said...

Here's a question: Is it wrong to kidnap suspected terrorists from other countries, despite the fact that it violates international law?

Philip H. said...

My return question - unless they are in a so-called "failed state" (Somalia comes to mind) where we are unlikely to operate anyway, why do we need to kidnap them? Whats wrong with using existing treaties to have other countries or INTERPOL pick them up and extradite them?