A Primer on the Law of Torture
By Anthony Piel
t r u t h o u t | Op-Ed
Thursday 15 November 2007
President George W. Bush, Vice President Dick Cheney as well as a succession of current and former attorneys general, legal counsels, secretaries of defense, judicial appointees, CIA agents and others seem to be having difficulty figuring out what constitutes torture or other cruel and inhuman treatment as a matter of law. For example, does "waterboarding" constitute torture? Perhaps they could do with a primer on the subject.
What does the law actually say? According to the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment: "The term '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 information or a confession ... inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity ... No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture." Could any statement of law be clearer?
The Convention continues: "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." In short, "rendition" is also flat-out illegal. Conviction of acting officials in the chain of command for such violations that are part and parcel of war crimes or crimes against humanity, pursuant to the US inspired, post World War II Nuremberg Doctrine, makes those officials, irrespective of rank, title or position, subject to punishment by life imprisonment or the death penalty. This is no laughing matter. It's not even a matter of impeachment of a few wayward officials.
Is the US bound by the law? Yes. Can the US president grant immunity? No. The US government crafted, promoted, adopted, signed and ratified the 1984 Convention Against Torture, which therefore automatically becomes the "supreme law of the land," pursuant to the US Constitution, which itself forbids cruel punishment. No enabling legislation is required to give effect to these basic principles of law. Only the details of how cases are dealt with are subject to further legislation or executive order. Each state party is required by the Convention to enforce its terms under its own national criminal law. The failure to do so is itself a violation of international and US Constitutional law.
Note that the Convention, and therefore the national and international law on torture, makes no reference and provides no escape clause for treatment that amounts to less than "organ failure" - a vile concept prefabricated by the Bush administration, with absolutely no basis in law. It is absolutely irrelevant whether "waterboarding" does or does not produce organ failure. Repeated drowning, revival and drowning again causes acute suffering, whether performed in a full-size bath tub, a bucket or basin, or by means of a cloth stuffed over the face and in the mouth while water is poured over the victim. Waterboarding constitutes torture; it is utterly immoral and illegal, period, full stop. Besides, more than 50 detainees are known to have died under Bush's secret program of interrogation, and many more are suspected of the same under Bush's secret program of illegal rendition.
During World War II, with so much hanging in the balance, we Americans did not torture prisoners to obtain information or confession. Even more telling, we did not use torture during the Cold War when we faced the real possibility of massive exchange of surprise nuclear strikes. This was especially striking in Germany in the 1950s. At that time, I was personally involved in the physical capture of a Soviet agent working in a Warsaw Pact spy ring. I attended as he was interrogated all night long in a detention center. Professional interrogators threatened him with both carrot and stick, but they never used torture. The agent finally chose the carrot. He broke down and yielded reliable and verifiable information (which torture would not have yielded) and this led, within weeks, to the mopping up of the entire spy ring. (At the time of which I speak, many of today's leaders and actors were still crawling around in diapers.) The moral of the story: We don't "do" torture, because torture is illegal, it is immoral, we are Americans, and we don't want others to torture us. It's that simple.
Torture, within the meaning of the 1984 Convention Against Torture, continues to be secretly and systematically inflicted and condoned by various officials at the highest levels of the Bush administration. Most of these high-level officials have no experience of combat, of imprisonment or of interrogation. They have trashed the reputation of America around the globe. As a result, they are contributing to the rise of international terrorism. These leaders and actors appear to lack the imagination, intellectual capacity and moral compass to understand what is at stake, and keep America on the moral high ground. They need a primer on the basics. They better learn quick, because there is no statute of limitations on war crimes and crimes against humanity, and as our US president has himself said, in a not-dissimilar context, "They can run, but they can't hide."
Anthony Piel is a former legal counsel of the World Health Organization and a former member of the US Army's 2nd & 4th Armored Divisions.
This article first appeared in The Lakeville Journal on November 9th 2007.