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September 29, 2006

The Torture Bill

Good God! I never actually thought this would pass. I was sure that there were more American politicians with at least an ounce of spine. I may castigate all politicians, describe them as lower than pond scum, but that is with a certain measure of hyperbole.

The US Senate has voted for legislation endorsing President George Bush's plan for tough measures to interrogate and prosecute terrorism suspects.

The new laws will grant the president permission to authorise interrogation techniques viewed as illegal under international conventions and allow the setting up of "military commissions" to prosecute terror suspects.

Torture is now OK. Not often I agree with Atrios but today's one of those times. This stinks.

September 29, 2006 in Law | Permalink

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Comments

Yep-this is horrible. Now terrorists, including those captured during active battles, will be subjected to the same horrible measures as were common during WW2. One should really actually read the subject Act as well as the recent SCOTUS decision to get the full horror of it.

Posted by: MikeinAppalachia | Sep 29, 2006 1:07:55 PM

Of course under the UN torture treaty of a few years ago it means we now have an international *obligation* to prosecute any examples we find doesn't it?

Just cos the US redefines international law doesn't mean the rest of us are even permitted to agree with their interpretation. I hope the Belgian court system can cope!

Posted by: Jock Coats | Sep 29, 2006 1:16:38 PM

interrogation techniques viewed as illegal under international conventions

I'd actually like a reference for this. There are aspects of the treatment that could be involved as violating the Geneva Conventions, assuming that the Geneva Conventions applied to the prisoners, such as the lack of prisoner exchanges and so forth. But as far as techniques, the conventions ban torture and humilating treatment and so forth, but do not specifically address whether, say, sleep deprivation for 12 hours or being in a 50 degree Farenheit room or having one's shirt grabbed or being slapped open-handed is torture. (Not to mention rather silly suggestions that, e.g., the use of female interrogators is inherently "humilating" to those from male-dominated cultures)

Permanent physical damage is obviously torture, and still banned. As far as the others, I will idly note that involuntary confinement in a prison can arguably be a worse punishment than temporary physical discomfort, assuming that the latter has no permanent damage. Years of confinement is a terrible, terrible punishment.

The official US position is that torture is still banned but that these techniques are short of torture but extremely unpleasant. There may be good reason to ban things sort of torture, because of slippery slope concerns and other things.

Posted by: John Thacker | Sep 29, 2006 1:32:59 PM

The UN Convention Against Torture defines torture 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

In a prosecution here under the Criminal Justice Act 1988, which incorporates the Convention into British law and gives our courts universal jurisdiction, the prosecution would have to pursuade a jury that the specific act(s) complained about -- assuming they were admitted them -- amounted to the infliction of 'severe pain or suffering, whether physical or mental.'

'But my President said it was OK' would be no defence, whether it's President Bush or President Mugabe; neither of those gents can tell juries what to do in civilised countries. The defence would have to put reasonable doubt into the jury's mind about whether the actions had caused 'severe pain or suffering, whether physical or mental'; President Bush's views on whether or not they had would be immaterial.

Posted by: Not Saussure | Sep 29, 2006 2:30:13 PM

"any act by which severe pain or suffering, whether physical or mental"

Good, because all that's still illegal under US law. And just like in the UK, someone could bring a lawsuit under the relevant US law which forbids torture and severe pain and suffering. Nothing in this bill changes the part of the US Code which adopted the UN Convention against Torture.

Of course, totally vague definitions like that are problematic. Rather a bit imprecise. Certainly some people could suffer severe mental suffering merely from being confined to prison (which I think in truth is a horrible punishment indeed-- I'd much rather take disorientation or uncomfortable music or temperatures for hours than a year in prison), others could claim that seeing unveiled women caused them severe mental suffering. Of course, you would have to convince a jury, but I suspect that UK law, like law everywhere, provides guidelines and instructions to juries and suggests that certain things are permissible. Each jury does not approach the case ab initio.

Juries are an excellent check, but inconsistency and vagueness is no aid to justice and rights. Refusing to draw the line of where torture begins will lead to a slippery slope, as it becomes difficult to decide what is and is not permitted.

Posted by: John Thacker | Sep 29, 2006 3:52:01 PM

The definition, 'severe pain or suffering', is the one used by the UN convention. As I understand it, the proposed US legislation seeks to resile from that by allowing the President to say, in effect, 'such-and-such cannot be considered "inflicting severe pain or suffering", no matter what a jury or anyone else may think'.

Your summary, The official US position is that torture is still banned but that these techniques are short of torture but extremely unpleasant, might be better rendered The official US position is that torture is still banned but that the authorities inflicting it get to decide what is and what isn't torture.

The point about the mental suffering caused by incarceration is a bit of a red herring, since the UN Convention and international law say that torture 'does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions'; I agree that keeping someone incarcerated indefinitely without charge at Guantanamo Bay in an attempt to extract information from him might well count as torture, but, again, the US don't seem to share this view.

Posted by: Not Saussure | Sep 29, 2006 5:03:13 PM

Not Saussure:

As I understand it, the proposed US legislation seeks to resile from that by allowing the President to say, in effect, 'such-and-such cannot be considered "inflicting severe pain or suffering", no matter what a jury or anyone else may think'.

Well, you can read the relevant bill.

The various sections on "Implementations of Treaty Obligations" incorporates and includes the full text of the UN prohibition of torture, just as you've cited it.

However, it's affected by:
1) Denial of habeas corpus to aliens;
2) The US claims that its court system (including juries) has the right to determine what is a violation. It refers to Title 18, Code 2340, which prohibits "“torture” mean[ing] 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." It goes on to define "severe physical or mental pain or suffering" as "the intentional infliction or threatened infliction of severe physical pain or suffering;" "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;" "the threat of imminent death;" or "the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."

The bill does not affect the right of US citizens to sue, nor the ability of juries or judges to determine that the various acts authorized therein to be allowed by interrogators actually do violate those standards.

Posted by: John Thacker | Sep 29, 2006 7:46:39 PM

Other things forbidden by law in civilized countries:
Beheading hostages
Stoning women for adultery-even if this was a result of rape
Honour killings
hanging homosexuals
hiding in civilian groups whie ambushing 'the enemy'
suicide bombings
launching rocket and morter attacks at civilian areas

Just saying....

Posted by: Robert | Sep 29, 2006 8:02:26 PM

Also, the bill does fix certain other flaws in the previous process, such as making all the commission actions reviewable by the United States Court of Appeals for the DC Circuit and the Supreme Court, the natural places for such. It also requires that the commissions follow UCMJ regulations.

Posted by: John Thacker | Sep 29, 2006 8:18:41 PM

So, even aliens do have the right to appeal and claim abuses, but they do not have the right to claim habeas corpus and obtain a speedy trial/determination of status. This is from a close reading of the statute.

Posted by: John Thacker | Sep 29, 2006 8:28:32 PM

Oh dear, Timmy, verrrrrrrrrrrrrrry Matty Parris. You could try letting a touch of commonsense and perspective affect your thinking. I don't believe you would be thrown out of the libertarian's club, honest, though you might have to join the grown-ups section.

Posted by: Derrick Hill | Sep 29, 2006 10:21:14 PM

John Thacker, thanks for the reference, but are you not misreading the bill somewhat? It doesn't seem to me to leave it to a jury to decide whether something constitutes 'severe physical pain or suffering' (it jumps about a bit between 'severe' and 'serious' -- I'm not quite sure what the significance of this may be); it defines it for them at Sec. 950ss. Cruel or inhuman treatment:

The term `serious physical pain or suffering' means bodily injury that involves--

`(A) a substantial risk of death;

`(B) extreme physical pain;

`(C) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

`(D) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

Well, I can certainly think of plenty of pretty unpleasant things this definition will allow even an unimaginative interrogator to do and get away with it; it would certainly allow a degree of latitude with rubber truncheons, for example, and I think it means that you can hook up your victim's genitalia to an electric generator just so long as you don't crank up the power too much.

I'm not saying that this is what's envisaged, but it certainly seems allowed under the proposed legislation. And I don't quite see why they've redefined 'serious' to mean 'exteme'.

Posted by: Not Saussure | Sep 29, 2006 10:44:00 PM

I certainly don't hope there's a succesful terrorist attack in the future; and if there is, I certainly don't hope you're caught in it; but if you were, you'd certainly be the victim I wouldn't give a shit about. Get real, why don't you? We are the good guys, and our values are worth fighting for, by bad means if necessary. True in World War II, true in World War IV.

Posted by: Chris | Sep 29, 2006 11:00:46 PM

"It doesn't seem to me to leave it to a jury to decide whether something constitutes 'severe physical pain or suffering' (it jumps about a bit between 'severe' and 'serious' -- I'm not quite sure what the significance of this may be); it defines it for them at Sec. 950ss. Cruel or inhuman treatment:"

Section 950 has to do with defining the offenses under which the prisoners may be tried, not defining what the interrogators may or may not do. That's the signifance of the difference between "severe" and "serious." Section 950 only defines the offenses under which detainees may be tried-- and back in paragraph aa specifically exempts all the murder, cruel and demeaning treatment, etc. that results from collateral damage of a lawful attack.

Tricky, but I'm sure of this.

So the standard for convicting prisoners of cruel treatment is higher than the standard under which we judge our own interrogators, that's all.

Posted by: John Thacker | Sep 30, 2006 1:21:13 AM

Actually, I take that back about the standards being different. They distinguish between "severe" and "serious," as offenses by detainees, where "serious" is much worse, but "severe" is still prohibited for detainees. "Severe" is defined as in section 2340(2) of title 18, and is as mentioned above, not limited to just the categories under which "serious" applies. It includes the standard UN Convention on Torture definition.

Posted by: John Thacker | Sep 30, 2006 1:26:18 AM

Oh, and it also alters the definition in that section so that `serious and non-transitory mental harm (which need not be prolonged)' shall replace the term `prolonged mental harm' in what's considered "serious" mental harm.

Posted by: John Thacker | Sep 30, 2006 1:29:23 AM

Actually, it's that "prolonged mental harm" is "severe," whereas the other phrase is for "serious."

The distinction between "severe" and "serious" is that "severe" is defined as the offense of "TORTURE" and "serious" is defined as the offense of "CRUEL OR INHUMAN TREATMENT" (see the section "Implementation of Treaty Obligations), both of which are expressly banned but presumably distinguished for the purposes of sentencing.

Posted by: John Thacker | Sep 30, 2006 1:34:23 AM

It is a complicated thing to read, certainly.

Posted by: John Thacker | Sep 30, 2006 1:37:25 AM

The point about the mental suffering caused by incarceration is a bit of a red herring

It's a red herring as far as the law and treaties go, yes. But as a serious philosophical debating point, it's worth some idle discussion. Why *is* incarceration considered acceptable? I certainly think that taking away years of someone's life and taking away their fundamental human rights to free movement and association is a pretty bad thing, and certainly can cause psychological damage.

I suspect it's because we worry about our own humanity. After all, plenty of rational criminals might prefer corporal punishment to years in prison, but we're not calling for bringing back the stocks. But what exactly makes it torture? I don't think it can be just the effect or the preference of the one subjected to the treatment.

Posted by: John Thacker | Sep 30, 2006 1:51:32 AM

I prefer consigning detainees to the tender care of the California prison system, under conditions proposed by Attorney General (still in office) Bill Lockyer for the detention of the then-unconvicted Enron chief Ken Lay.
Said Lockyer, "I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, 'Hi my name is Spike, honey,'"
Replace "Lay" with "Mohammed", or whatever, and have at 'em.

Posted by: Person of Choler | Sep 30, 2006 7:49:06 AM

"Torture is now OK. Not often I agree with Atrios but today's one of those times. This stinks"

You are a gifted economist but your comments on this subject don't jibe.

Economists say "incentives matter". OK, so the US government has introduced a new set of incentives. It is a set of incentives that are expected to produce information that will saves the lives of innnocent civilians. I say, bully for them.

You call this approval of "torture". I think you are grossly and fundamentally wrong about that. The genius of the American system is that there is accountability. This new law gives the president the power - and the accountability - for deciding the means of interrogation of foreign terrorist suspects in certain situations. If you are right and the president is wrong that will become public knowledge. That is so different from a law or state that condones "torture" it should not need explanation - especially to you.

So I think your post was an inadvertant brain fart that you will look at in a couple of weeks and say "What the F was I thinking?"

At least that is what I hope it was.


Posted by: John Fembup | Sep 30, 2006 6:56:47 PM