I can’t tell you the number of times I began a story with a plan for where it would go, only to discover that the plan isn’t going to work.
The stories sometimes seem to write themselves…but other times, the research seems to do the writing instead; this being one of those times.
When the production of this story began it was with the intention of trying to explain what should be the “controlling authority” in terms of defining torture, a precedent set by the European Court of Human Rights, or Title 18 of the United States Code.
Having reviewed both statute law and numerous judgments in law courts worldwide as well as the recent Senate Judiciary Committee testimony of Professor Jeffrey Addicott, and having conducted an interview with Dr. Addicott personally, I’ve come to two rather surprising conclusions:
It may not really matter whether waterboarding is torture…and although neither I nor Dr. Addicott might have seen it coming, it’s starting to appear that he and I might agree on one thing:
Waterboarding, whether it’s torture or not, is a war crime.
There’s a big backstory here, so off we go:
Everybody remember the Senate Judiciary Committee’s “Torture Hearings” back on May 13th…the one where the FBI interrogator testified from behind a “security screen”?
One of those giving testimony that day was Professor Addicott; he of the Center for Terrorism Law at St. Mary’s University in San Antonio, Texas. In his testimony Dr. Addicott suggested that the words waterboarding and torture are thrown around in each other’s company rather casually and without much in the way of law to guide those doing the throwing.
In both his written and oral testimony, he suggested the best guidance for answering the question of whether waterboarding is torture can be found in an examination of a 1978 ruling of the European Court of Human Rights, Ireland v. the United Kingdom.
Well, I read that ruling, and a wee bit of statute law…and I began to wonder if Dr. Addicott might have missed a thing or two.
18 USC § 2340 and 2340A are the sections of the United States Code that deal specifically with “Torture”. Torture is defined in the statute, and jurisdiction applies if…
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(18 USC § 2340A(c) tells us that conspiring to commit torture is also a crime.)
Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
I mentioned that torture is defined…and here is the part of that definition that we’ll be discussing:
(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…
(c) the threat of imminent death…
The more I kept at it, the more I couldn’t shake the feeling that it made more sense that surely the United States Code should be the “controlling authority” on the question of what is or is not torture, not the ruling of a foreign court.
I sent an email to Dr. Addicott asking two questions:
–if he might be kind enough to explain why the US Code isn’t the final authority here, and if so,
–isn’t the fact that waterboarding is predicated on a threat of imminent death enough to make it torture, based on the definition laid out in 18 USC § 2340?
After a weekend of phone tag, Dr. Addicott was kind enough to explain to me some of his thinking on the matter. Some of that conversation will be repeated here, along with excerpts from the written testimony he provided the Senate Judiciary Committee.
(I’ll be “Q”, Dr. Addicott will be “A”.)
Q: “Why is the European Court of Human Rights ruling more dispositive, when you’re defining torture, than the US Code?”
A: “…basically, the individuals that we are alleged to have tortured, I use the word alleged because I don’t believe it amounts to torture…are not US citizens.”
He also noted that because the alleged torture took place outside the US, international law applies, specifically the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”).
Q: “OK, but when I’m looking at 18 US Code, 18 US Code says “whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned.” So wouldn’t that imply that Americans, wherever they are, would be covered under the statute?”
A: “It would be hard…Regarding the shocking the conscience standard in the latest case, which was Chavez v. Sanchez, [ actually Chavez v. Martinez, (538 U.S. 760) ] if you read that case, that court did not even look at…uh…US Code in deciding whether or not shock the conscience, so I think when you’re looking at an international sphere it’s better to look at the international cases in regards to torture, particularly when you have a case that defines…uh…interrogation…”
Further light is shed on the question by reading this portion of Dr. Addicott’s written testimony:
“In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining “severe pain or suffering” in the context of interrogation practices against suspected “terrorists” comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote (16-1), the Ireland court found certain interrogation practices (called the “five techniques”) by English authorities to investigate suspected terrorism in Northern Ireland to be “inhuman and degrading,” i.e., ill-treatment, under the European Convention on Human Rights, but not severe enough to rise to the level of torture (13-4). According to the Court, the finding of ill-treatment rather than torture “derives principally from a difference in the intensity of the suffering inflicted.””
(That phrase “inhuman and degrading”? Keep it in mind, as it will figure prominently in Part Two.)
The “Five Techniques”?
“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water.
From Dr. Addicott’s written testimony:
“To the reasonable mind, considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques authorized by the Department of Justice legal memorandums – waterboarding – would not constitute torture (the CIA method of waterboarding appears similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).”
You may recall a reference to the “shock the conscience” standard. It’s pertinent here because of doctrine found in the May 2005 “Torture Memo” written by Steven Bradbury of the Office of Legal Counsel, quoted here:
“Given that the CIA interrogation program is carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot “be said to shock the contemporary c.onscience””
The standard came from Rochin v. California, (342 U. S. 165). Long story short, police officers forced capsules full of morphene from inside Rochin’s body after watching him swallow them. In overturning the conviction, the Supreme Court ruled:
“…that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience…They are methods too close to the rack and the screw to permit of constitutional differentiation.”
Dr. Addicott’s written testimony also notes that the circumstances of Blefare v United States (362 F.2d 870) are similar to Rochin and support his view that if forcing evidence from the body does not “shock the conscience” waterboarding must not, either.
Additionally, Dr. Addicott asks us to consider a case that originated in Florida, Leon v. Wainwright (734 F.2d 770), in which a suspected kidnapper was choked and otherwise physically abused to obtain the information needed to save the kidnap victim. Since the conviction was upheld, we can surmise that even coercive interrogations have a place in American law.
Finally, the written testimony tells us we should consider the degree of physical pain that is inflicted by the interrogation method in deciding what torture is and what it is not.
“Certainly the red thread in these definitions is a combination of two essential elements: (1) the infliction of severe physical pain to the body or mind used to; (2) punish or obtain information. International law adopts this formula but sharpens it by stipulating that a State actor must carry out the act of torture.”
Add it all up, Dr. Addicott would tell you, and waterboarding, which fulfilled a vital interest and doesn’t rise to the level of behavior in Rochin, is not torture.
Let’s stop for a moment and review where we’ve been:
Dr. Addicott tells us that waterboarding is not torture first because it’s being done outside the US to non-citizens, and secondly, because of that Ireland v United Kingdom ruling, among others, but I’m of the opinion that the US Code is the better place to look for a definition of torture.
If an interrogation method doesn’t involve enough physical pain, over some period of time, to “shock the conscience”, Dr. Addicott feels, it’s not torture.
And in his view, the fact that coercive methods are used to obtain evidence is not necessarily illegal under American law.
Once again, this has become one of those stories that will require us to take a pause and pick it up tomorrow…but when we do, we’ll take a second look at some of those court rulings, and we’ll see if there might be other precedent that matters—and then we’ll consider a section of the United States Code that might shed an entirely different light on the whole question of what whether the question “waterboarding: is it torture?” even makes much of a difference in obtaining convictions for this behavior.
There will be a lot more in Part Two, so come back tomorrow for the rest…of the story.
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