Not to mention Andrew Sullivan, possibly the most self-righteous blogger ever, happily comparing anyone who disagrees with him to Soviet gulag-masters....

If the 'slippery slope' argument is valid anywhere, it is here.

There are very few absolute 'do not this' in the basic foundations of western culture and civilization, but the torture issue is among them.

I'm not sure why giving Lederman a nickname was done, but I hope it was not done to denigrate his concern, which seems much more relevant than the pet issues of most law professors

Orin appears to just be playful. I got a chuckle, and I assume Marty will, too.

I like reading what they both have to say on the subject.

It seems atypical for a body to instruct the conferees how to negotiate language in a conference bill. How often does it happen?

John,
Sullivan has pointed out that the torture techniques used by "our guys" were in many instances similar to the ones used in Soviet Gulags (but not when the Soviets tried to get useful information, in which case the techniques don't work well. Quite ironic.) If you are upset about reality, then work to change it, and don't disparage the messenger.

Oh, and whether one agrees with Sullivan or not, I think it is clear that his beliefs are genuine. I'm not sure that can be said of all those who have attacked him.

Sullivan also calls being wrapped in an Israeli flag or being touched with FAKE menstrual blood "torture." His definition of torture is extraordinarily loose, so I take his claims of widespread torture as unlikely.

Sorry ... I meant to write "does NOT amount to torture". That missing "not" is rather crucial.

This is very disappointing, frankly. The administration has had great success in preventing terrorist attacks by using extreme interrogation methods to obtain information from suspects. The use of "torture", if you want to call it that, should be expanded rather than restricted.

Smithy:

Can you cite any instances of terrorist attacks being prevented by the use of any of the extreme interrogation methods being complained of?

Smithy, does it bother you that torture was used to get faulty intelligence that was used to justify the war in Iraq?

The administration has had great success in preventing terrorist attacks by using extreme interrogation methods to obtain information from suspects. The use of "torture", if you want to call it that, should be expanded rather than restricted.

If one accepts a utilitarian morality, then it is theoretically possible that torture may be permissible, even mandatory.

But I would hope that, in the light of Christmas, we would remember utilitarianism isn't always the morality that we use to set boundaries on our behavior. Sometimes, to use a secular example, we say that autonomous persons are not to be used as means, but are to be treated as ends in themselves.

Supposedly Jose Padilla was exposed through interrogation, but I'm not sure exactly what "techniques" were used.

Scott McClellan cited several when he was being pressed by insurgent Helen Thomas.

She's of Middle Eastern origin, therefore she's an evildoer? Real classy there, Smithy.

And, just out of curiosity, is there any evidence that the intelligence gained through the use of torture would not have been gained if the interrogators had stuck to non-degrading, non-torturous techniques?

A good poker player never lets his opponents know what he's holding.

I'm sure you don't think that the American people should just put their full faith in their government when they're told that "extreme interrogation techniques" are necessary and effective. But if they aren't going to give us any information about the efficacy of these techniques, how do we know their use is justifiable? There must be some oversight, so where should it come from?

Salieri, in a time of war the people must stand behind the president. And I feel that this president has earned our trust. He doesn't spin and parse the way some recent leaders have.

Smithy, I'm sorry but I don't care how much a president has done to earn my trust, I can't support giving them that much power without oversight.

Huck, 911 changed everything. We learned that we are not protected by oceans and that the status quo -- in law enforcement, intelligence, and foreign policy -- wasn't good enough. The president has taken a bolder approach than many of his credits wanted, but you have to admit, so far it is working better than anyone expected.

Smithy,

How do you know the Administration's approach has been working better than McCain's approach would have worked if we had adopted it from the beginning?

Steve,

That is part of why I think it helps to imagine Saddam doing things to a captured American pilot. I'm pretty sure we would not have so much anxiety in such a case about the difficulty of giving an exhaustive definition of torture, or of cruel, inhuman, or degrading treatment. Rather, we would be pretty confident of ability to classify our pilot's treatment at Saddam's hands.

Commneterlien: you're right, I watch some Fox. It may surprise you to know that I also listen to a lot of NPR. I like to get information from a variety of sources, so that I get both sides of the argument. That's why I like this blog (which I'm new to.

Oh yeah... I'd still like to know if this bill allows the prisoner to sue to enforce whatever rights we're granting here. Does anyone know for sure? I assume there is some sort of enforcement mechanism...

Sullivan came through:

"...the Cheney-Rumsfeld axis of brutality..."

My, he is full of himself.

"Cheney-Rumsfeld axis of brutality."

The real axis of brutality is the Hussein-bin Laden axis.

My only point is that the Geneva Conventions are there as a guarantee to warfighters: if you follow the rules, you'll be treated fairly if captured.

The very definition of the guys we're capturing is that they do NOT follow the rules. The idea that they should be treated according to Geneva anyway is silly. I am NOT suggesting an alternative of them being roasted over a spit. But agressively asking them questions and creating stress for them is not a problem as far as I'm concerned.

JohnA2,

Again, though, the CAT is not part of the Geneva Conventions. In other words, the CAT applies to all people, not just POWs.

Such a pilot is a lawful combatant, entitled to Geneva protections.

What we're talking about here is non-uniformed unlawful combatants. Whole different story.

Legally, perhaps, but not philosophically.

If you're not willing to accept that torture is antithetical to the core of American exceptionalism, then oppose torture for pragmatic reasons. It's bad policy.

Torture has little utility as an information-gathering tool. As even recent news stories have demonstrated, people will tell you pretty much anything you want to hear under torture. They have no incentive to tell the truth and great incentive to tell you lies, especially if they are hostile to your interests which, as you're pulling out their fingernails, they likely are. There are just oodles of examples of this, even in our own history. The North Vietnamese regularly tortured captured Americans and captured Americans regularly said either nothing of interest or packs of outrageous lies, on some occasions actually tricking their captors. We'll likely have even less impressive results as there is no way, God willing, we're ever going to be as good at torture as the North Vietnamese.

Allowing torture under any circumstances also "hardens up" people all around the world. For every person you're able to extract any useful information from by torture, there are a thousand -- or a million -- who would freely give information if America made even a pretense of living up to its ideals. The true power of America is not that it can break people's legs -- any petty dictator can do that. The true power of America is that it represents something people want to cooperate with. By refusing to torture people under any circumstances, you take one small step toward staking out an absolute moral position. The statement "America will never torture people because it's wrong." means America stands for something. America will only be trusted when it will refuse to do some things that are wrong even if they are expedient.

JohnA2,

I believe you are thinking about "torture" under the CAT's Article 1, which is basically defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." There is more to the definition, and we also have some Reservations that further define it, but that is the basic idea.

However, Article 16 of the CAT also bans "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." Severity is not part of that definition.

Again, however, we have a Reservation, which says, "That the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." The McCain Amendment says the same thing.

So, under our Reservation, the CAT bans "being mean to the little dears" to the same extent as the 5th, 8th, and 14th Amendments. For guidance on what that means, you could look to the federal court cases on the subject. Basically, though, the standard was set in Trop v. Dulles, 356 U.S. 86 (1958):

"The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Finally, I might note that, "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today." Hudson v. McMillian, 503 U.S. 1 (1992).

I agree with the above that Marty Lederman is best nicknamed with "anti-torture" than "torture."

Jay "Torture" Bybee or John "Torture" Yoo would be appropriate, however.

Medis,
Thanks for the cases, I appreciate them. I do not believe the US should torture, and I believe in the CAP and the McCain Amendment for that reason. However, with respect to treatment that is cruel, inhumane, or degrading under the US Reservation, I just sort of assumed that this would be about at 8th amendment level. I didn't realize that it might be at DP level, which is quite a bit less. (I think - at least with respect to police treatment and exclusions of confessions - though I haven't read the cases in quite a while.)

I do not doubt that some cases of forced labor fail 8th amendment analysis; I was thinking of cases (e.g. forced painless labor) that would presumably pass 8th, but may fail DP (e.g. person confesses after the police force him to work all day, even if it was painless. e.g. At my job. :>)

Have the US obligations under the CAP been interpreted to include treatment for which confessions are excluded as violations of DP; or is DP under the US reservation intended to be applied differently? Is DP meant to be applied to prohibit e.g. (a) treatment of the type that police have engaged in that violates DP and requires exclusion of evidence; or merely (b) treatment following conviction that is cruel, inhumane, or degrading to a degree that constitutes a violation of DP? Is the former (a) interpreted to be the standard for US obligations under the CAP?

For example, if a legislature were to prescribe a single hard slap (like a "slap on the wrist") as punishment for a crime, I doubt this would in all cases violate the 8th amendment. (though I don't know the caselaw, and this is an assumption.) However, were police to give a hard slap to a suspect they were interrogating, a resulting confession might be excluded as fruit of a DP violation, even if the same treatment - prescribed as punishment - would pass the 8th. (again, no research on my part.)

Medis, thank you for the information, especially the quotes on the relevant amendments. How anyone could argue that what we do is legal given U.S. law on the subject is beyond me.

John Ann Arbor: When you say "the Geneva Conventions are there as a guarantee to warfighters: if you follow the rules, you'll be treated fairly if captured," I believe you are oversimplifying. Common Article 3 of the Conventions (it's in all the conventions, which is why it's "common") applies to "armed conflict not of an international character." In such conflicts, "Persons taking no active part in the hostilities, including" detainees "shall in all circumstances be treated humanely," meaning that there cannot "be violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture... [or] outrages upon personal dignity, in particular humiliating and degrading treatment."

The U.S. Supreme Court is currently hearing Hamdan v. Rumsfeld to determine, among other things, whether the War on Terrorism is a "conflict not of an international character." (John Roberts ruled on this a while ago and decided in a 2-1 decision that "not of an international character" meant civil wars only, thus denying Hamdan Common Article 3 rights, and it got appealed to the Supreme Court.) Marty Lederman has an excellent post on this subject which I highly recommend, although it was written before the Supreme Court picked up the case. From Lederman:

When the D.C. Circuit held that Article Three does not apply to the War on Terror, it stripped away all these basic protections from detainees. In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon...

Article Three states that it applies only "in case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., parties to Geneva]." The War on Terror undoubtedly is "of an international character," and it occurs in the territories of many states, not one; thus, Article Three does not apply. So goes the argument, and it has some plausibility.

As Judge Williams notes in his dissent, however, the awkward phrase "not of an international character" simply means "not between nation-states." International law has traditionally been defined as the law governing relations among states - the literal meaning of "inter-national." And so, "not international" doesn't mean "internal" - it merely means "not between nation-states." On that reading, the standard one among international lawyers, Article Three does apply to the War on Terror, which clearly is an armed conflict not between nation-states. Initially, the framers of the Geneva Convention considered limiting Article Three to internal armed conflicts; but they rejected that narrow phrasing in favor of the broader phrase "not of an international character." Nor does the phrase "…occurring in the territory of one of the High Contracting Parties" limit Article Three to conflicts within a single state. That phrase is in the Convention simply to ensure that Geneva applies only to states that are parties to it, not states that aren't. Treaties cannot bind non-parties, and Geneva would have been invalid if it purported to apply outside the territory of at least one of its "High Contracting Parties." Today, that is a non-issue, because every state in the world except the demilitarized island republic of Nauru has joined the Geneva Conventions. But in 1949 it was unclear that Geneva would win such universal acceptance, and so the treaty had to add language limiting its scope to states that agreed. The phrase is there purely for jurisdictional purposes, and it means "at least one High Contracting Party," not "at most one."

In other words, if a few of my buddies and I tried to overthrow, say, the Chinese and Mexican Governments, there is good reason to believe that China and Mexico would be obligated not to torture us under Common Article 3. John Yoo and Bush reject this interpretation, but Lederman has some good arguments you should consider.

Dave

Medis,

You won't like this, but I think you are a bit off with your interpretation of the US's reservation under CAT. Your quote is correct, but the inferences you draw are mistaken.

The 5th/8th/14th amendments do not apply in the same manner to non-citizens as they do to US citizens. As such, only decisions dealing with the interpretations of those amendments in the context of non-citizens matter, or more particulary, unlawful enemy combatants. All of your references to cases interpreting those amendments deal with US citizens as far as I am aware. As such, they are meaningless in applying the US reservation to CAT.

this comments thread was surprisingly productive. I hope someone follows up on this.

By the way, McCain's Amendment fortunately makes this quite clear: its prohibition extends to any individual under the control or in the custody of the United States government, regardless of nationality or physical location.

G-L-K has other benefits to proponents of torture. At present, prisoners at Guantanamo have access to lawyers, and can tell them about how they are treated. The lawyers all have security clearances, and can review classified records on the matter. If you eliminate the lawsuits, you eliminate the lawyers. And then the only people who even know of the treatments of the prisoners are those administering it.

The public will stop hearing allegations of torture/abuse, except from those few prisoners who get released. Even then, though, no one outside of government will have access to the classified file, and so it'll be plenty easy to just label the prisoner a nut/malcontent/trained terrorist.

I'm sure Sen. McCain, Mr. Sullivan, and many others will find the ensuing silence comforting -- taking it as proof that the torture ban has been effective.


To put this in terms many of you will find more familiar, suppose in response to the backlash over Kelo, we (a) limit takings to public uses only (not purposes) but also (b) repeal the Tucker Act and section 1983 wrt Takings (and preemptively impose sovereign immunity in states wrt takings). We'd never have to face the outrage of a Kelo decision. And I'm sure we could trust all public bodies to comply with the law as set forth in (a). Right?

Medis,

Great points. I'll have to get back to you tonight. I have a final in a few hours.

I spend enough of my study time on this darn site as it is. . .

The Forteenth Amendment isn't really relevant to this discussion as it applies only to the states. The federal government can't violate the Fourteenth Amendment.

I was only assuming that it was a relevant standard for treatment b/c Medis said that when the US joined the CAT, it made a Reservation:

That the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

http://www1.umn.edu/humanrts/usdocs/tortres.html

So I would assume that the US reservation embraces a standard of treatment borrowed from the 8th amendment and (at least) the DP clauses. Because DP excludes confessions subsequent to lesser coercive treatment than the 8th amendment proscribes, my question is whether this DP jurisprudence is the actual standard which treatment is measured against under Art. 16 of the CAT.

Medis,

Quick point from my research. I can't find a direct refutation of your excellent source. I'm still looking though :)

Let me bring in another argument. From what I understand that you are saying, the case you cited means that Due Process etc. apply in the exact same manner and method to citizens as non-citizens.

However, that really can't be the correct based upon Ex Parte Quirin. In that case, the SCOTUS held that the President's military commission set up to deal with those fighting against the US was perfectly constitutional. It isn't a direct counterpoint. However, I think it at least puts your claim in a more questionable light, or rather it shows the limited precendential value of your decision.

So, if true. Under CAT, we would be importing our current distinctions in dealing with unlawful enemy combatants etc.... under those amendments courtesy of Ex Parte Quirin, etc.

...you're suggesting that the state governments can't constitutionally engage in any kind of torture but that the federal government can since it isn't bound by the 14th Amendment.

I don't think that either Medis or I are suggesting this. Rather, we're saying that the US Reservation to the CAT agrees that individuals are protected by the standards of treatment contained by the 8th, 5th, and 14th amendments. As borrowed standards of treatment, this has much more to do with the ways in which government (whether national or state) is limited when dealing with individuals, and very little to do with federalism. (We aren't dealing with whether a standard of treatment applies to the states, but what standard of treatment the US has agreed to as a CAT party.)

I guess I'm puzzled by what kind of torture would be prohibited by the 14th amendment but not by the 5th &8th Amendments.

The 8th amendment proscribes different treatment than does the DP clauses of the 5th or 14th amendments. (I believe.) Although DP may exclude confessions which result from hard (though not tortuous) slaps (whether from federal or state officers), I am not sure that the 8th amendment would prohibit a government from legislating hard slaps as the punishment for a crime.

All the 14th Amendment does here is say "Now all you states have to give people 5th Amendment due process rights too!"

It doesn't. Not to be a jerk, but it's text states that:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The 14th undoubtedly incorporates (some) provisions of the bill of rights to the states, but I do not think that its power is constrained to this purpose. (also seen, e.g. by Sct 2-4.)

Thought experiment: The 5th amendment DP clause is repealed. (Or has never been written.) Does the 14th amendment DP clause contain a substantive standard of treatment, or has it vanished?

The 14th amendment DP clause would continue to have its own weight (I would think), even if the 5th were a figment of our imagination.

The operative words of the due process guarantees in the 5th &14th Amendments are identical. Why shouldn't they be interpreted identically?

I don't think we're actually arguing about anything. Like you, I think that incorporation is beside the point: I believe that the Reservation's citation of the 14th has nothing to do with federalism, but with the standard of treatment borrowed. Yes, the treatment substantively proscribed by DP is the same under the 5th and 14th. One seeking to borrow a standard of treatment does not have to choose between the 5th or the 14th given that they both refer to the same standard of treatment; and given the purposes of the CAT, the borrowing both is best interpeted to refer to the same standard of treatment rather than anything having to do with federalism.