AFTER 9-11, MUST WE STOMACH TORTURE?

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AFTER 9-11, MUST WE STOMACH TORTURE?

• Margaret Montoya
• Professor of Law
• University of New Mexico School of Law
• Sponsored by Amnesty International
• March 3, 2006
• Highlands University,
• Las Vegas, NM

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ACKNOWLEDMENTS

• This PowerPoint presentation is based on work
  by Professors of Law Ben Davis (Univ. of Toledo)
  and Scott Silliman (Duke). My thanks go to both
  of them.

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Objectives

• Provide you with information about the U.S
  governments use of torture in its war on
  terror
• Persuade you that U.S. governments detention
  interrogation techniques amount to torture and
  violate national and international laws and
  accepted standards of morality
• Motivate you to take action to denounce U.S.
  torture by signing petitions demanding that the
  U.S. reject torture as a tool of war

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9-11 The Backdrop for the Torture Issue
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War on Terror Rationales Blur Into Occupation
in Iraq
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A Progression from 9-11 to War on Terror to
Abu Ghraib
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Q Is This a Legitimate Response to 9-11?
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And Then Theres Guantanamo
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Abu Ghraib
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Iraqi Detainees at Abu Ghraib

• Abu Ghraib held 7000 prisoners in 2004
• Close to 90 were not guilty of allegations,
  according to ICRC
• In April and May 2004, 60 Minutes The New
  Yorker published photos and reports on prisoner
  abuse
• DODs bad apples defense
• 17 officers and soldiers removed from duty
• 7 soldiers convicted of the following offenses
  dereliction of duty, maltreatment, aggravated
  assault and battery
• 1 officer was demoted (Brig. Gen Janis Karpinsky
  demoted to Col.)

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INTERROGATION TECHNIQUES

• Sleep DeprivationCaptives kept awake for days
  with bright lights and loud music. Stress
  PositionsPrisoners forced to stand or squat in
  positions for hours or held in cramped spaces
  where they cannot sit, stand or lie down. Shock
  Therapy
• Captives softened by being beaten, stripped,
  doused with water, subjected to drastic swings in
  temperature and often made to remain naked even
  while watched by female guards. Sensory
  DeprivationTo disorient them, captives placed in
  hoods, eyes covered with duct tape or darkened
  goggles for hours at a time.
• Psychological Pressure
• Prisoners subjected to Mind Games -- cajoling,
  scaring or confusing
• Threats
• Prisoners threatened to be sent to countries
  with a known history of torture, like Egypt or
  Morocco. Occasionally the U.S. has carried out
  that threat.

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Legal Definitions of Torture

• International Law
• Geneva Conventions
• Prisoners of war must at all times be humanely
  treated.(They) must at all times be protected,
  particularly against acts of violence or
  intimidation and against insults and public
  curiosity (Article 13)
• No physical or mental torture, nor any form of
  coercion may be inflicted on prisoners of war to
  secure from them information of any kind
  whatsoever. Prisoners of war who refuse to
  answer may not be threatened, insulted, or
  exposed to any unpleasant or disadvantageous
  treatment of any kind. (Article 17)

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Definitions of Torture International Law, contd

• CONVENTION AGAINST TORTURE (1984)
• Each state party shall take effective
  legislative, administrative, judicial or other
  measures to prevent acts of torture in any
  territory under its jurisdiction. (Article 2)
• Torture is defined in the convention as any act
  by which severe pain or suffering, whether
  physical or mental, is intentionally inflicted
  upon a person for such purposes as obtaining
  information or a confession. (Article 1)
• But during the ratification process for the
  convention, the U.S. Senate submitted an
  understanding which restricted the definition
  to only very extreme acts.

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Senate Understanding

• In order to constitute torture, an act must be
  specifically intended to inflict severe physical
  or mental pain caused by or resulting from
• (1) the intentional infliction or threatened
  infliction of severe
• physical pain or suffering
• (2) administration or application, or
  threatened administration or
• application, of mind-altering substances
  or other procedures
• calculated to disrupt profoundly the
  senses or the personality
• (3) the threat of imminent death or
• (4) the threat that another person will
  imminently be subjected to
• death, severe pain or suffering, or the
  administration or
• application of mind-altering substances
  or other procedures
• calculated to disrupt profoundly the
  senses or personality.
• (S. Exec. Rep. No. 101-30, at 36.)

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International Law, contd

• CONVENTION AGAINST TORTURE (1984)
• Each state party shall undertake to prevent in
  any territory under its jurisdiction other acts
  of cruel, inhuman or degrading treatment or
  punishment which does not amount to torture.
  (Article 16)

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Senate Understanding

• The convention does not define cruel, inhuman or
  degrading treatment or punishment, but, just as
  in the case of Article 2, the Senate added an
  understanding during the ratification process
  as to what this term meant
• The United States understands the term,
  cruel, inhuman or degrading treatment or
  punishment, as used in Article 16 of the
  convention, to mean the cruel, unusual, and
  inhumane treatment or punishment prohibited by
  the Fifth, Eighth and/or Fourteenth Amendments to
  the Constitution of the United States.
  
• (S. Treaty Doc. No. 100-20, at 15-16)
  

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Domestic Law

• THE TORTURE STATUTE (18 U.S.C. '' 2340-2340A)
• Since the Convention against Torture only applies
  in territories under our jurisdiction, this
  statute extends the prohibition to acts committed
  in other places
• The statute makes it a criminal offense for any
  person outside the united states to commit or
  attempt to commit torture (but cruel, inhuman or
  degrading treatment or punishment is not
  mentioned)
• Torture is defined under the statute as an act
  committed by a person acting under 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 control.

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Torture MemosBybee, Woo, Gonzales

• They argue that those who might use overly
  coercive interrogation techniques are insulated
  from domestic (and international) prosecution,
  especially in the federal courts under the
  torture statute
• One of the torture memos (August 1, 2002)
  concluded that for physical pain to amount to
  torture under the torture statute it must be
  excruciating and agonizing pain, equivalent in
  intensity to the pain accompanying serious or
  physical injury, such as organ failure,
  impairment of bodily function, or even death.

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Supreme Court Justices

• New Justices Roberts and Alito
• Executive War Powers
• Unitary executive
• NSA Wiretapping Disclosures

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McCain Amendment

• No person in the custody or under the effective
  control of the department of defense or under
  detention in a Department of Defense facility
  shall be subject to any treatment or technique of
  interrogation not authorized by or listed in the
  United States Army Field Manual on intelligence
  interrogation
• No individual in the custody or under the
  physical control of the united states government,
  regardless of nationality or physical location,
  shall be subject to cruel, inhuman or degrading
  treatment or punishment
• The amendment goes on to define cruel, inhuman
  or degrading treatment or punishment as that
  which would violate our 5th, 8th and 14th
  amendments
• This language, which congress passed at the end
  of last year, fills the gap which exist in our
  domestic law as to acts of cruel, inhuman or
  degrading treatment or punishment committed
  outside our borders

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Bushs Signing Statement

• The amendment was signed into law by President
  Bush on December 30, 2005, as part of the 2006
  Defense Authorization Act, but in his signing
  statement, the President said
• The executive branch shall construethe
  amendment in a manner consistent with the
  constitutional authority of the President to
  supervise the unitary executive branch and as
  commander in chief and consistent with the
  constitutional limitations on judicial power,
  which will assist in achieving the shared
  objective of the Congress and the Presidentof
  protecting the American people from further
  terrorist attacks.

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Wash. Post (3/09/06) New Law Doesnt Apply to
Guantanamo

• Bush administration lawyers, fighting a claim of
  torture by a Guantanamo Bay detainee, yesterday
  argued that the new law that bans cruel, inhuman
  or degrading treatment of detainees in U.S.
  custody does not apply to people held at the
  military prison.
• In federal court yesterday and in legal filings,
  Justice Department lawyers contended that a
  detainee at Guantanamo Bay, Cuba, cannot use
  legislation drafted by Sen. John McCain (R-Ariz.)
  to challenge treatment that the detainee's
  lawyers described as "systematic torture.
• Government lawyers have argued that another
  portion of that same law, the Detainee Treatment
  Act of 2005, removes general access to U.S.
  courts for all Guantanamo Bay captives.
  Therefore, they said, Mohammed Bawazir, a Yemeni
  national held since May 2002, cannot claim
  protection under the anti-torture provisions.

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What Concrete Actions Can We Take To ResistThe
Use of Torturein Our Name?
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CLOSING THOUGHTSGo to Amnesty Internationals
website for more informationwww.amnestyusa.org