In all the chatter that has gone on regarding demands for prosecution of Bush administration officials under the federal torture statute, remarkably little attention has been paid to the case of Ireland v. United Kingdom–even though that case is discussed extensively in the August 1, 2002, Bybee memorandum which has been the subject of the such great controversy.
Although the memorandum has been criticized on other grounds (such as its facile assertions regarding presidential war powers), it cannot be criticized regarding its accurate presentation regarding Ireland v. United Kingdom.
That case arose from the UK’s use of “the five techniques” in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a “stress position”; hooding; subjection to noise; sleep deprivation; and food and drink deprivation. In other words, quite similar to many of the techniques used by the CIA to interrogate captured terrorists.
The Grand Chamber of the European Court of Human Rights ruled that these techniques do not constitute “torture.” For “although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.” (Para. 168.) Instead, “recourse to the five techniques amounted to a practice of inhuman and degrading treatment.” Accordingly, since Article 3 of the European Convention on Human Rights outlaws inhuman and degrading treatment, the Court ordered the U.K. to cease use of the five techniques.
Now, if you are a Department of Justice attorney analyzing the question of whether you can bring a case which will result in a conviction under the federal torture statute, you have to acknowledge numerous obstacles:
Although the Convention Against Torture, which has been ratified by the U.S. Senate, forbids both torture and “Other Cruel, Inhuman or Degrading Treatment,” that treaty is implemented in U.S. domestic law by the federal torture statute, which outlaws only torture.
People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.
Now, if people want to argue that degrading treatment of captured terrorists violates some other federal law, maybe there is a case that can be made. It just strikes me as highly unlikely that a conviction could be obtained under the federal torture statute.
Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.
Of course if you want to invent your own set of facts–such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War–then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.
John Podesta’s “impeach Bybee letter” appears to be unsupported on a crucial legal point:
A legal memorandum signed by Judge Bybee when he was the head of the Office of Legal Counsel and recently released by the Obama administration approved the use of cruel, inhuman, and degrading techniques, including waterboarding, slamming a detainee into a wall, depriving a detainee of sleep for up to eleven days at a time, and trapping a prisoner in a “confinement box” with insects in order to induce terror. The techniques endorsed by Judge Bybee