Thursday, December 18, 2014

Unless the U.S. Fully Implements The Convention Against Torture,We Will Continue To Dispute Whether Waterboarding is Legal

By Penny M. Venetis 

Congress’s recently-released report on CIA interrogation methods leaves no doubt that the U.S. violated the letter and spirit of the Convention Against Torture (CAT), the international human rights treaty that it ratified in 1994.  CAT is an unequivocal statement that torture violates fundamental human rights.  Yet, our elected officials are still debating for the second time since 2004, when the Abu Ghraib photographs were published, whether waterboarding, submerging persons in water, extreme physical abuse, prolonged and deliberate exposure to extreme temperatures, physical stress and sexual humiliation are legal.

 Under Articles 1 and 4 of the CAT, the definition of torture must be written into the criminal codes of signatory countries.  Article 5 requires countries to “take such measures as may be necessary to establish its jurisdiction over [these] offences.”  Congress ignored these directives.  Instead, the year it ratified CAT, Congress passed watered-down legislation, the Federal Torture Statute, that severely altered the CAT and its reach.

 Legislative history shows that Congress believed that acts that would violate CAT would already “be covered by existing applicable federal and state statutes.” For example, Congress believed that the existence of criminal statutes for assault, manslaughter, and murder were sufficient to satisfy the U.S.s’ treaty compliance requirements.   But, these domestic criminal provisions, while punishing specific crimes that a torturer might commit while torturing, do not explicitly punish torture. This is significant. By failing to implement all provisions of the CAT domestically, Congress left open the questions of whether torture itself was illegal.

 Indeed, Congress never explicitly outlawed torture as a crime inside the United States, even though the treaty requires state parties to “ensure that all acts of torture are offences under its criminal law.”  The Federal Torture Statute only criminalizes torture, occurring outside the United States (including at military installations under U.S. jurisdiction), in violation of Article 2 of CAT. 

The so-called “Torture Memos” drafted by John Yoo (now a Professor at Berkeley Law School) and signed by Jay Bybee (now a federal appeals court judge with life tenure) during 2002–2005 gave the green light for the U.S. to torture.  The memos depict an administration worried about breaking the law.  Specifically, the memos sought to answer whether “certain [enhanced] interrogation methods,” namely waterboarding, violated the Federal Torture Statute.  Under any honest interpretation, those interrogation methods constitute torture.  Indeed, the United States prosecuted Japanese soldiers for torture in World War II for similar acts.  But, while CAT’s strong language broadly condemns intentionally inflicted “severe pain or suffering, whether physical or mental” for purposes of obtaining information or a confession, the Federal Torture Statute does not adopt this definition. 

 CAT requires the torturer to have “general intent” to harm, whereas the U.S. requires “specific intent.”  Because of this heightened “intent”requirement, a Torture Memo dated August 1, 2001 concludes that “even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.”  Thus, according to the Torture Memos, a suspect can be waterboarded 183 times in one month (nearly six times a day), if causing harm is “not [the] objective.” In fact, one of the Memos “discuss[ed] the potential [for] the President to approve the maiming, drugging or applying ‘scalding water, corrosive acid or caustic substance’ on detainees.”

 After declassification and public release of the Torture Memos, some members of Congress attempted to draft acceptable detainee interrogation techniques and debated whether to make torture, as defined by the CAT illegal. At the end of the day, even the currently outspoken torture critic, Senator John McCain, sided with the Bush administration and voted not to require CIA interrogation methods to comply with the CAT. 

 Even though certain interrogation techniques like waterboarding have been declared illegal by the Justice Department and President Obama’s 2009 Executive Order, a remorseless President Bush stated in his 2010 memoirs that when the CIA asked for permission to torture, he responded “damn right.”  Other Republican leaders including John Cornyn, Mitt Romney and Michelle Bachman have made similar statements.   

 This embarrassing and shameful national debate that we are once-again having about whether torture is or should be illegal could not take place if the CAT had been fully implemented into the U.S.’s legal infrastructure. The world has already defined torture in the CAT. Congress redefined torture, and watered it down to such a degree that permitted the atrocities at Abu Ghraib and Guantanamo Bay to take place without legal repercussions.

 Congress’s newly-released horrifying report exposing the breadth of the U.S.’s use of torture shows that it is necessary to enact legislation to fully incorporate human rights treaties, as they were negotiated and drafted in collaboration with other nations, into U.S. law. 

[Editors' Note:  Professor Penny Venetis, a leading U.S. human rights advocate, has just been appointed as Executive Vice President and Legal Director of Legal Momentum: Women's Legal Defense and Education Fund.   We look forward to Penny's continued human rights leadership in this new position!]

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