Torture

1
Chapter 27

• Torture

2
Prior to 2002

• Nuremberg
• Trial of the Japanese War Criminals
• International agreements and treaties on torture
• Secretary of Defense William Perry - 1996
• He also declared that the Defense Department
  would never again advocate torture or other
  inhumane treatment in its training programs.

3
Why is Torture Special?

• Does it violate jus cogens?
• What does that tell us?
• Why is it considered worse than terrorism, in
  that terrorism does not violate jus cogens?
• Is there any evidence that torture is a useful
  interrogation device?

4
The Political Uses of Torture prior to 9/11

• Why was torture used by Pinochet?
• Was it to get information?
• Why else would you use torture?
• What about Pol Pot and others?
• What does it say about a country to accuse it of
  using torture?
• Should we care?

5
The Geneva Convention

• What does the Geneva Convention require for the
  treatment of prisoners of war?
• Why did the US and other nations agree to the
  Geneva Convention?
• Does it apply to spies and illegal combatants?
• What are the problems in defining prisoners of
  war in asymmetric (terrorist) warfare?
• What is the timeframe problem for the war on
  terror?

6
The Taliban v. al Qaeda

• Why should Taliban soldiers in Afghanistan be
  given prisoner of war status?
• Why does al Qaeda not get prisoner of war status?
• Why are they hard to tell apart, i.e., what is
  the uniform of a Taliban soldier?
• What is the rationale for downgrading the status
  of the Taliban when we take over Afghanistan?

7
The Office of Legal Counsel (OLC)

• Are prisoners of war under the Geneva Convention
  subject to harsh interrogation?
• Why is there an Army manual on interrogation?
• Why is this a response to Nuremberg?
• The OLC was asked what interrogation techniques
  would violate US or International Law
• What is the significance of going outside the
  Army manual?

8
The Torture Statute - 18 U.S.C.A. 2340 (West)

• 1) 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
• (2) severe mental pain or suffering means the
  prolonged mental harm caused by or resulting
  from--
• (A) the intentional infliction or threatened
  infliction of severe physical pain or suffering
• (B) 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
• (C) the threat of imminent death or
• (D) 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

9
The OLC Definition of Torture

• Physical pain amounting to torture must be
  equivalent in intensity to the pain accompanying
  serious physical injury, such as organ failure,
  impairment of bodily function, or even death. For
  purely mental pain or suffering to amount to
  torture . . . it must result in significant
  psychological harm of significant duration, e.g.,
  lasting for months or even years.
• The OLC memorandum even concluded that torture
  might be justified in some circumstances.

10
What does the Convention on Torture Say about
Exceptions?

• . . . which provides that no exceptional
  circumstances whatsoever, whether a state of war
  or a threat of war, internal political
  instability or any other public emergency, may be
  invoked as a justification of torture. United
  Nations Convention Against Torture and Other
  Cruel, Inhuman, or Degrading Treatment or
  Punishment Art. 2, cl. 2, December 10, 1984, S.
  Treaty Doc. No. 100-20, 1465 U.N.T.S. 85

11
The Significance of the OLC Memo

• Does it matter what the International Court of
  Justice thinks?
• What is the worst they can do?
• Do you believe that is politically possible?
• Did Pinochet ever get tried?
• What laws are the OLC Memo aimed at?

12
Qualified Immunity

• What is the standard for qualified immunity?
• How would use the OLC memo in a qualified
  immunity defense?
• Who would this help, i.e., who does the memo not
  protect?
• But what does Iqbal tell us about getting to the
  high officials?
• Did the lawyers implement the torture plans?

13
Military/Agency Discipline

• Can the military still punish officers who
  violate the manual?
• Can the CIA administratively sanction employees
  who engaged in torture, despite the OLC memo?
• Why are neither going to happen, even with a
  change in administrations?
• Would it matter if there were a universal belief
  that the OLC memo was bad law?

14
Abu Ghraib

• Abu Ghraib is more about inhuman and degrading
  treatment than torture
• Why was Abu Ghraib about the worst possible
  public relations problem for the US in war on
  terror?
• How did it come to light?
• How was it compartmentalized and handled by the
  military?
• Sound like the Rodney King defense?

15
Bottom Line on Torture

• Should it matter that the FBI, who knows more
  about interrogation for a longer period than any
  other agency, does not believe torture is an
  effective way to get information?
• Does this destroy the "ticking bomb" rationale?
• Even if there some benefit to torture, does its
  political consequences outweigh the benefit?

16
The OLC Lawyers

• Are these memos appropriate lawyer work?
• Are they competent lawyer work?
• Are they ethical?
• What is the role of the OLC?
• Is it the same as a mafia lawyer?
• Was it just stupid to write this stuff down?
• What would you have done?

17
The Detainee Treatment Act

• (a) In General.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.
• (b) Construction.Nothing in this section shall
  be construed to impose any geographical
  limitation on the applicability of the
  prohibition against cruel, inhuman, or degrading
  treatment or punishment under this section.
• (c) Limitation on Supersedure.The provisions of
  this section shall not be superseded, except by a
  provision of law enacted after the date of the
  enactment of this Act which specifically repeals,
  modifies, or supersedes the provisions of this
  section.

18
DTA - What is prohibited

• (d) Cruel, Inhuman, or Degrading Treatment or
  Punishment Defined. In this section, the term
  cruel, inhuman, or degrading treatment or
  punishment means the cruel, unusual, and
  inhumane treatment or punishment prohibited by
  the Fifth, Eighth, and Fourteenth Amendments to
  the Constitution of the United States, as defined
  in the United States Reservations, Declarations
  and Understandings to the United Nations
  Convention Against Torture and Other Forms of
  Cruel, Inhuman or Degrading Treatment or
  Punishment done at New York, December 10, 1984.

19
Bush's Signing Statement

• 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 the judicial power, which will
  assist in achieving the shared objective of the
  Congress and the President . . . of protecting
  the American people from further terrorist
  attacks.

20
Constitutional Issues on Domestic Torture

• Assuming that the information is not used for
  criminal prosecution, would torture violate the
  5th amendment ban on self-incrimination?
• Assuming it is not done as punishment, could you
  use the 8th amendment?
• Remember material witnesses?
• This still leaves you with your basic 5th
  amendment Bivens claim - death or injury without
  due process.