Three years ago I wrote a piece on torture which nobody read – well, almost nobody.
Still, after all this time I remain deeply disturbed by the anecdotal references in our media culture that a significant portion of our society believes that torture is “okay”.
This is not just about the Geneva Conventions – it goes much deeper in international law.
Since his original piece which prompted my reponse I’ve noted that E. Thomas McClanahan hasn’t written anything in the paper trying to justify torture since.
Rule of Law: An Absolute Prohibition of Torture [edited for format]
Fri Jun 25, 2004 at 08:03:44 PM PDT
I submitted the majority of the following to the Kansas City Star as a rebuttal to an op-ed piece on torture:
E. Thomas McClanahan’s June 22, 2004 editorial “White House should clarify torture policy” (Kansas City Star, B7) [link has expired] appears to recycle the administration’s self-serving talking points that there is some ambiguity in the laws, treaties and customs of civilized behavior prohibiting torture. Moral, ethical, and practical arguments aside, that claim could not be further from the reality. Torture is unacceptable in any circumstances under the law of the United States, international treaties, and the norms of international law.
McClanahan is flip in his descriptions of the norms of civilized behavior, especially within the Geneva Conventions:
…..The 1949 Geneva Conventions, for example, say prisoners may not “be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind” – language that seems almost quaint. What does “unpleasant” mean, exactly? Kansas City in July is unpleasant….
Now, where have we heard that talking point before?
The sequence in following the law is direct and easy to follow as George W. Bush tried to explain on June 10, 2004 “Look, I’m going to say it one more time. If I — maybe — maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We’re a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of — from me to the government….”
Examining the applicable Federal code prohibiting torture is helpful to the discussion:
Title 18, Part I, Chapter 113C, Section 2340. (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; and (3) ”United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.
Any president, since they do take an oath to uphold the Constitution, and, of course, our nation, is bound by Article VI: “….and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….” This clause is a practical one – if no nation gave treaties the force of law, then treaties would not be enforceable and no nation would bother participating in them.
The United States is a signatory to and duly ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), a treaty.  In addition to prohibiting torture this treaty states:
Article 3 . 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 4. 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Article 16. 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
Under Article 3 of the Convention Against Torture the United States cannot turn an individual over to another state which employs torture. Under Article 4 the United States is required to have laws against torture. Under Article 16 the United States is responsible for preventing acts of torture by its officials in any territory under its control.
The United States is a signatory to and duly ratified the International Covenant on Civil and Political Rights (ICCPR), a treaty. In regard to torture this treaty states:
Article 4. 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
The ICCPR allows derogation under certain circumstances, but explicitly forbids derogation of the prohibition of torture under any circumstances. Under the norms of international law freedom from torture is one of four non-derogable human rights and meets the legal definition under international law of jus cogens , that is, these rights cannot be removed by law or treaty.
 These rights are: The right to live (freedom from extra-judicial process), freedom from slavery, freedom from torture, and freedom from retroactive prosecution. Hansje Plagman, “The Status of the Right to Life and the Prohibition of Torture Under International Law: Its Implications for the United States”, Journal of the Institute of Justice and International Studies: Papers from the March 2003 Counter Terrorism and Civil Liberties Conference, 3, Central Missouri State University, 2003, pp. 172-193 [as printed].
The United States is a signatory to, but has not yet ratified  the American Convention on Human Rights (ACHR). In regard to torture this treaty states:
Article 5. Right to Humane Treatment. 1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
The doctrine of non-derogation and supremacy of non-derogable human rights has been set forth under international treaties and laws. As a peremptory norm (jus cogens) of international law no treaty nor law can supersede these non-derogable rights. While the United States has not signed nor ratified the Vienna Convention on the Law of Treaties (supposedly because its provisions were “already” accepted international law), the treaty entered into force internationally on January 27, 1980. The treaty addresses non-derogation and jus cogens:
Article 53. Treaties conflicting with a peremptory norm of general international law (jus cogens). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Under the Constitution, the laws of the land, international treaty obligations, and those peremptory norms of international law the United States is expressly prohibited from subjecting anyone to torture. Period.
As a member and a leader of the international community the United States is obligated to follow its laws, its international treaties, and the peremptory norms of international law. It is ludicrous to suggest, as McClanahan does, that there is a “vacuum in law…” There certainly is a vacuum in White House policy, but the law could not be more clear.
As for citing the 1999 Israeli Supreme Court ruling as a precedent or guideline for our own national behavior, McClanahan would first have to accept the peremptory norms of international law in order to make the leap of faith in accepting for the United States the effect of a supreme court ruling in another single sovereign state. Under our own obligations and international law, that is not a possibility without serious consequences.
The Israeli Supreme Court ruled:
“….This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties….”
 Judgement on the Interrogation Methods applied by the GSS. The Supreme Court of Israel, sitting as the High Court of Justice.
Billmon’s commentary on the Israeli court ruling finds where the administration and McClanahan miss the mark:
“….You can certainly argue whether the Israeli Supremes went far enough. But what I find most striking are not the legal issues involved, but rather the enormous contrast in intellectual intent between what the Israeli high court and the Bush Justice Department have been trying to do. The Israeli justices, for all their hypocrisy, were attempting to extend the rule of law into areas that have traditionally been regarded as the exclusive domain of the national security state. The Bush legal team is boldly and arrogantly trying to do the opposite.
It’s the difference between a legal system that has been trapped in a moral cesspool for almost 60 years, and desperately wants to get out, and a small clique of legal extremists who are determined to throw themselves, and their country, into the same stinking mire, regardless of the risks.”
 Stare Decisis. June 15, 2004.
Ethical, moral, and practical arguments have been made on the many facets of this issue. There is no legal ambiguity in the absolute prohibition of torture for the United States and indeed, the rest of civilization. It is a disservice to the law and our nation’s ideals to claim otherwise.
The current administration’s gyrations, parsing, and memos on the subject of torture have serious legal consequences for them and all of us. That blue dress doesn’t appear to be so important anymore, does it?
I received the following reply from the op-ed editor:
Subject: RE: As I See It
Date: Fri, 25 Jun 2004 13:37:37 -0500
I received your e-mail submission for our “As I See It” column but I must reject it at this time on one and possibly two counts. The first is length. The limit on “As I See It” is about 550 words. Your piece, including footnotes (which we never run), is more than 2,000 words. The second consideration is your expertise in the area. Although it is obvious you have done a great deal of research, our guidelines for “As I See It” require the author to be writing from personal experience or his/her area of expertise. If you have experience in international or constitutional law, I would strongly consider your piece for publication if it were trimmed to our word limit. You do make several good points and I would like see that viewpoint expressed in print.
If have any questions or concerns, feel free to contact me.
Opinion Page Editor
The Kansas City Star
Sent: Fri 6/25/2004 3:09 PM
Subject: RE: As I See It
Thank you for your too kind reply.
I really didn’t expect my submission to run in the Star, specifically because of the length. The issue is an important one, and as you saw, the information is easily accessible and understandable – though the mass of that information is needed to make the point. My submission won’t make any sense if it’s cut to 550 words.
I find the second consideration quite interesting. Since I don’t have credentials in the areas of constitutional and international law, is there a place for me as a regular columnist on the editorial pages of the Star? A lack of such doesn’t seem to stop individuals like E. Thomas McClanahan from pontificating on the issues.
My first intent was to bust Mr. McClanahan’s chops (that’s why I copied my submission to him) for writing such an abysmal piece of work. It’s symptomatic of our times that any interested lay person could spend a few hours easily finding substantive background information on this issue, while an editor/columnist for the Star blithely resorts to regurgitating superficial right wing talking points for the opinion/editorial section of the Star.
I will post the piece (and maybe our exchange) on the blogosphere where it may or may not be read. But, at least the blogosphere makes a better attempt than the majority of our present traditional media in serving the public interest.
Please accept my comments in the spirit of democratic (and genial) exchange.