Torture, the United States, and Laws of War

April 9, 2010, 8:00 am (EST)

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Why is torture in the news?

A confluence of events has put torture and the treatment of detainees at center stage: the recent revelation of a network of so-called black sites, covert prisons for suspected terrorists run by the Central Intelligence Agency (CIA) in Eastern Europe; the White House is threatening to veto an anti-torture amendment passed by the Senate; the Supreme Court announced it would hear a case challenging the legality of war-crimes tribunals used in Guantanamo Bay, Cuba; the Senate voted to strip Guantanamo detainees of further legal rights; and a leaked classified report by the CIA’s inspector general provided evidence that interrogation techniques approved by the White House may violate an international convention against torture.

What is the debate over the use of torture?

There are many issues at stake. Critics say the administration’s handling of detainees violates international law, produces poor intelligence, and putsU.S.detainees abroad at risk. Human-rights groups further allege that instances of prisoner abuse at Abu Ghraib prison in Baghdad, Baghram Air Force base outside Kabul, Afghanistan, and Guantanamo Bay are part of a larger pattern of behavior and harsh interrogation techniques approved at the highest levels. Critics allege that the abuses stem from the White House’s willingness to bend the accepted legal definition of what constitutes torture. Further, these groups charge the U.S. government, from before September 11, 2001, of engaging in renditions: the transferring of prisoners to countries that engage in torture. Instead of leaving these detainees in legal limbo, human-rights groups say they should be turned over to U.S. courts and afforded legal counsel.

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Administration officials counter they neither advocate nor order the use of torture. However, White House officials argue that members of al-Qaeda, the Taliban, and other suspected terrorists do not qualify as lawful “enemy combatants” and therefore are not accorded rights under the Geneva Conventions, the internationally accepted rules on conduct during wartime that govern the treatment of detainees, among other things. Experts say terrorists do not enjoy legal protections because they do not follow any rules of war: They fight for no nation-state, they target innocents, they wear no insignia, and they disguise themselves as civilians.

What is the torture amendment?

Senator John McCain (R-AZ), who was tortured during his time as a prisoner of war in Vietnam, has proposed an amendment outlawing all forms of “cruel, inhuman, or degrading treatment or punishment” for U.S.-held detainees. The amendment, attached to a defense-spending bill, passed the Senate by ninety votes to nine, but faces a veto by the White House over objections the bill may hinder the CIA’s ability to gather intelligence from detainees. When asked about the torture amendment during his recent visit to Latin America, President George Bush replied, “We do not torture,” but added that “our government has the obligation to protect the American people.” Supporters of the amendment say laws prohibiting torture mirror those already found in the U.S. Army’s field manuals. Opponents, including Vice President Dick Cheney, say the amendment should not apply to detainees held by CIA agents who might have invaluable information about an imminent terrorist attack.

What are “black sites”?

Secret prisons established in the immediate aftermath of September 11, 2001, used to house “high-level” detainees. The existence of these CIA-run detention centers was first reported November 2 in the Washington Post. Although the exact locations of these camps are unknown, news reports suggest they are located in Romania and Poland. Similar camps in Afghanistan and Thailand have already been closed down. There are some thirty detainees in the camps considered to be major terrorist suspects, while seventy less-important detainees have been reportedly sent to Egypt, Morocco, and other Muslim nations. The camps were established under a sweeping law signed by President George Bush less than one week after September 11 that gave the CIA wide-ranging authority to disrupt terrorist operations, including the right to kill, capture, or imprison suspected members of al-Qaeda. Several U.S. senators have called for an investigation into the secret prisons. Others are calling for an inquiry into the source of the leak of information about the CIA camps.

Why did the Senate vote recently to limit detainees’ access to U.S. courts?

On November 10, the Senate voted forty-nine to forty-two in favor of overturning a Supreme Court decision last year that allowed prisoners in Guantanamo Bay to challenge their detentions in U.S. courts. The purpose of the ruling was to stem the flow of lawsuits filed by detainees. More than 200 of some 700 detainees held, or once held, at Guantanamo Bay have filed writs of habeas corpus, motions that order unlawfully held prisoners be brought before a judge. The amendment would void any suits currently pending. Human-rights groups charge the Senate’s decision will allow detainees to be held indefinitely without a trial and beyond the reach ofU.S.or international law.

What issues does the Supreme Court face in deciding to review military tribunals?

On November 8, the Supreme Court announced it would hear an upcoming case reexamining the constitutionality of President Bush’s authority to establish military tribunals, the first courts of this kind since World War II. The defendant, Salim Ahmed Hamdan, a native of Yemen and former driver for Osama bin Laden, charges the tribunals are in violation of the Geneva Conventions, which uphold his rights as a detainee and prisoner of war. Hamdan, captured during the 2001 war in Afghanistan and held in Guantanamo Bay since 2002, has been charged with conspiracy, murder, and acts of terrorism. He says military tribunals fail to give defendants a free and fair trial, a universally recognized right that falls under customary international law (which is binding and carries nearly the same jurisdiction as codified, or treaty, law). The Bush administration argues Congress granted the president, as commander in chief, direct authorization for the use of military force, which allows for the creation of military courts. Further, the White House says such military courts are necessary to fight a shadowy enemy like al-Qaeda, and that affording detainees the same inalienable rights as in a U.S. criminal court, such as the presumption of innocence, is unnecessary.

How is torture defined by international law?

Torture, as defined by Article 1 of the 1984 Convention Against Torture, is the “cruel, inhumane, or degrading” infliction of severe pain or suffering, physical or mental, on a prisoner to obtain information or a confession, or to mete out a punishment for a suspected crime. The United States ratified the treaty in 1994 but took a reservation to the convention’s addendum on the definition of torture, deferring to the U.S. Bill of Rights’ Eighth Amendment, which outlaws cruel and unusual punishment. However, the 1980 court case Filartiga v. Pena-Irala, in which a Paraguayan citizen won a suit in the U.S. Court of Appeals’ Second Circuit against a former Paraguayan police officer, established that torture falls under the realm of customary international law—thus, all countries, whether party to the Torture Convention or not, must abide. Further, the suit found that  torturers become, “like the pirate and slave trader before him—hostis humani generis, an enemy of mankind.” Other agreements that outline similar definitions of torture include the Geneva Conventions and the 1966 International Covenant on Civil and Political Rights.

Do U.S. interrogation techniques qualify as torture?

A leaked 2004 report by CIA inspector general John Helgerson found that several of the interrogation techniques approved by the agency may violate some of the provisions of the Convention on Torture. Human-rights groups charge the United States has tried to narrow the definition of torture to include only those interrogation techniques that result in severe harm to a bodily organ. Thus, they argue that the use of “waterboarding”—when a detainee is strapped down, forced underwater, and made to believe he is drowning—or the use of sleep deprivation would not legally fall under the definition of torture. What the Bush administration essentially did was “rip up the rulebook as far as military interrogators were concerned, telling them that the decades-old rules of the Army interrogation manual didn’t apply,” said Kenneth Roth, executive director of Human Rights Watch, in an April 14 Council event on the laws of war.

What are “extraordinary renditions”?

The policy of deporting terrorist suspects to countries, typically in the Middle East, with records of using torture. More than 100 detainees have reportedly been subject to renditions by the United States in recent years. The most widely known example was the case of Canadian citizen Maher Arar, apprehended by U.S. officials for having alleged connections to al-Qaeda and deported via Jordan to Syria, where he was imprisoned and tortured. He is currently suing the U.S attorney general’s office. U.S. officials deny deliberately engaging in the practice of renditions and maintain they receive pledges from recipient governments the detainees will be treated justly.

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Another aspect of this practice is what’s known as “reverse renditions,” when foreign officials apprehend terrorist suspects abroad in non-combat settings and hand them over to U.S. custody. The most famous case is that of the “ghost prisoner” Abdul Salam Ali al-Hila, a Yemeni businessman and alleged intelligence officer arrested in September 2002 in Egypt and then sent via Afghanistan to Guantanamo Bay, where he was held incommunicado for a year and a half.

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