Wednesday, April 22, 2009

A Quick Review of Torture Law

So that those of you who may be inclined to defend Bush administration torture can see what US and international laws you are suggesting may be broken on command of the Executive, I've done a quick, incomplete run-down of some of the main legal instruments and principles...

The United States Constitution:
Due process is guaranteed by the 5th Amendment (1791).
"[C]ruel and unusual punishment" is outlawed in the 8th Amendment (1791).

Torture is prohibited by federal law in Title 18 of the United States Code, Part I, Chapter 113C, § 2340A. Torture:
(a) Offense.— 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. (b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Torture is defined in Title 18, Part I, Chapter 113C, § 2340. Definitions:
“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....
A war crime is defined in Title 18, Part I, Chapter 118, § 2441. War crimes (c):
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes 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; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

(d) Common Article 3 Violations.—
(1) Prohibited conduct.— In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control...
(D) Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause...
(G) Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse.— The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact....
Among other instruments and treaties of international law, the United States is party to:
The Universal Declaration of Human Rights,
The Geneva Conventions,
The American Convention on Human Rights (signatory only),
The International Covenant on Civil and Political Rights, and
The UN Convention Against Torture.
One of the major pieces of international law, the The UN Convention Against Torture (1984/entered into force 1987) was signed by Ronald Reagan in April 1988 and ratified by the United States in October 1994. Ratification indicates a legally binding commitment by signatories to follow and uphold the content and spirit of the international law. Drawing out some relevant articles, the Convention states:
Article 1.1:
For the purposes of this Convention, 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 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...

Articles 2.1, 2.2, 2.3:
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 of war, internal political in stability 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...

Articles 4.1 and 4.2:
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.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature...

Article 5.1:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate...

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.
More international law on human rights can be found here, much of which has been promoted by the United States and to which the U.S. is party.

The United States Declaration of Independence (1776) states that,
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..." [my italics].
This sentence, written by Thomas Jefferson, is a direct response to the absolutist notion of a Divine Right of Kings, of an executive power beholden to no authority, no law, and no people. The Declaration of Independence and the French Declaration of the Rights of Man and Citizen are considered the two founding political documents of human rights.


MikeD said...

Amen. This is the argument the torture supporters do not want to have precisely because it is exceedingly clear. Torture is against the law (and, as you point out, multiple laws). Additionally, the legal precedents also exist that waterboarding is torture. This is where this battle (to prosecute those in the Bush administration that authorized torture) needs to be fought and won, not on the question of whether torture works or not. However, the torture supporters have thus far succeeded in presenting the strawman of torture efficacy in defending the previous administration's position.

trizzlor said...

Thanks for this. One thing I notice is that these excerpts do not codify who is covered. My assumption is anyone, but I've seen the argument that "enemy non-combatants" are not privy to these restrictions (because they are not citizens) not to Geneva conventions (because they are not signatories). Can you make this explicit?

Daniel P. Billingsworth said...

To respond to Trizzler, w/ respect to the Convention Against Torture: the obligations fall solely upon the signatory (in this case, the US is bound to respect the treaty terms as they ratified the CAT in 1998). As for the Geneva Conventions, The US Supreme Court held that Article III protections apply to Guantanamo detainees (I believe it was the Hamdan case).

John Bishop said...

One thing I notice is that these excerpts do not codify who is covered. My assumption is anyone, but I've seen the argument that "enemy non-combatants" are not privy to these restrictions (because they are not citizens) not to Geneva conventions (because they are not signatories). Can you make this explicit?I think the vagueness of the text does make it explicit, if that makes any sense. I mean, I only skimmed the post, but those treaties don't say "you can't torture citizens" or "you can't torture adults." They say "you can't torture." The only possible object of that verb, then, is "anyone."

Bill Henderson said...

One addition to this post might be the inclusion of the supremacy clause of the constitution: "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..."

I am surprised at how many people I talk to who believe that America's treaties are not legally binding in our domestic courts.

Angus said...

I don't think anybody's questioning whether torture's against the law in the United States. They're questioning (i) whether waterboarding is torture, (ii) whether, if it is torture, the OLC lawyers who advised that waterboarding, et. al. did not violate any US laws, treaties, etc. broke any US law, (iii) whether the CIA interrogators who, relying (or perhaps not - there's a factual dispute here) on the OLC memos, waterboarded are criminally liable (viz. did they have the right mens rea, etc.) and (iv) whether anybody who ordered the CIA to waterboard, etc. in accordance with the OLC memos is criminally liable.

Citing the Declaration of Independence doesn't get you any closer to solving those complex problems. This post is therefore of no value, unless your objective is not to figure out who is criminally liable for breaking which laws, but to find some high-sounding rhetoric to quote at the deaf-eared opposition.

helmut said...

Wow, Angus. You've read a lot more into this particular post than is there.

No, this is a brief summary of some of the relevant law regarding torture. Part of thinking about law is also thinking about the philosophical substance of the law (while not formal law, the Declaration of Independence is indeed relevant). I honestly don't understand how one can say that the various laws outline here, including the Constitution, are of no value.

And I don't understand, in your specific case, how one could possibly figure out whether or not waterboarding is torture without referring to the law. Maybe this is all make-believe and we can make up the law as we go along?

Waterboarding is torture, as are several of the other methods approved in the memos, especially when combined. But waterboarding specifically has been found to be torture in both US and international law. The precedence was simply ignored in the memos.

Valentine Michael Smith said...

Here's one way to get around the problem that torturing people is wrong. The following is headline & first Paragrpah of a news article:

Court Of Appeals Rules Detainees Are Not “Persons” in Guantánamo Torture Suit

Court Agrees with Obama Administration that Detainees Still Have No Constitutional Right Not to Be Tortured
April 24, 2009 Washington, D.C. – In a suit brought by British men imprisoned for two years at Guantanamo, the D.C. Circuit Court of Appeals today reaffirmed its previous ruling that Guantanamo detainees lack the fundamental constitutional right not to be tortured and are not “persons” under a U.S. statute protecting religious freedom. …

More here:

salubrius said...

There are two standards for interrogation in the Geneva Convention. One standard applies to POWs or prisoners of war. These prisoners have a preferred status in that they may not be coerced to provide information other than their name, rank and serial number. The other standard applies to those who do not qualify as POWs. These are also referred to as unlawful enemy combatants. The Supreme Court in 1942 referred to this classification of lawful and unlawful combatants.
The unlawful enemy combatants may be coereced to provide information so long as the coercion does not amount to torture. Torture is defined as severe pain or anything that would result in lasting physical or mental injury. Water boarding is terrifying but does not impart excruciating or severe pain which is the definition of torture, nor does it go beyond the other limits which is to result in lasting physical or mental damage.
Therefore 1. It is quite reasonable to find that water boarding is not "torture". 2. Previous cases finding Japanese water boarding Allied POWs to be criminal are not precedents, because as POWs they are lawful combatants and may not be coerced for information once they have provided their name, rank and serial number. Any coercion by the Japanese of Allied POWs would be a war crime,, even a slap on the face. There are also cases in which civilian prisoners were water boarded by the police to obtain confessions. This was found to be criminal. It was not because the water boarding was found to be torture, but because persons accused of crimes are protected by the Fifth Amendment to the Constitution form being compelled to incriminate themselves.

That being the case, there are no prevous holding in case law, and the opinions of the government lawyers appear to me to be eminently reasonable.

helmut said...


The argument is specious on several counts. To take one part alone: your and the memo writers' arbitrary assertions about pain and suffering... It is the CIA, in seeking justification for its actions, that deemed that waterboarding and other torture techniques do not cause pain or suffering. That input was relayed to the memo lawyers, who then re-asserted it. If I assert the existence of Great Purple Monkey God as a basic premise of an argument, I can easily prove the existence of Great Purple Monkey God.

Yoo's assessment (in the second "Bybee Memo") that suffering doesn't really occur until the point of death has just defined suffering out of existence for all of us living beings. Can that possibly be right?

Further, it's curious why one would use a technique that doesn't cause suffering when one is trying to get information from people who will say anything to stop the suffering caused by the technique. Are the torture victims just joshing around?

The law in practice is indeed often about technical legal contortionism. But any good legal scholar, judge, and/or lawyer understands that the law must emerge from robust evidence, reasonable premises, and not only logically valid but coherent inferences, not to mention ethically sound bases.

In logic, it's possible to construct a valid argument that is entirely false, proceeding from false premises to a false conclusion. Validity is a necessary but not sufficient condition of a strong (or "good") argument. You're speaking solely to validity, and validity in this case is not even clear.

Plus, even Bybee now apparently (possibly self-servingly) has regrets....

Valentine Michael Smith said...

Waterboarding being "not torture" is a very recent concept.

The inquisition was using Water Torture, which did pretty much the same thing Waterboarding does, for hundreds of years. It was considered one of their most important forms of torture. They called it torture. They improved on it over time. They never stopped calling it torture. They were able to get excellent confessions using it, such as the ones where witches admitting to flying to Sabats on their broomsticks and copulating with the Devil, after bewitching the local cows.

So much for progress (except for trying to pretend it's not torture).

Russell Wallace said...

Could someone who has the legal expertise please define what "Whoever outside the United States..." means in the first line of Title 18 of the United States Code, Part I, Chapter 113C, § 2340A.

Seems to me that this excludes torture occurring in the US, and presumably on territories such as military bases and embassies that may be considered part of the US, from being covered by the law.

But that interpretation just doesn't make a whole lot of sense, so I assume there's something more going on here I don't understand.

Anonymous said...

Section 2340A does not apply to locations "within" the US. Section 2441 does.