May 16, 2009

WATERBOARDING HAS THE BENEFIT OF BEING QUICK:

Critics Still Haven't Read the 'Torture' Memos: The CIA proposed the methods. The Justice Department gave its advice. (VICTORIA TOENSING, 5/16/09, WSJ)

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes. [...]

The Gonzales memo analyzed "torture" under American and international law. It noted that our courts, under a civil statute, have interpreted "severe" physical or mental pain or suffering to require extreme acts: The person had to be shot, beaten or raped, threatened with death or removal of extremities, or denied medical care. One federal court distinguished between torture and acts that were "cruel, inhuman, or degrading treatment." So have international courts. The European Court of Human Rights in the case of Ireland v. United Kingdom (1978) specifically found that wall standing (to produce muscle fatigue), hooding, and sleep and food deprivation were not torture.

The U.N. treaty defined torture as "severe pain and suffering." The Justice Department witness for the Senate treaty hearings testified that "[t]orture is understood to be barbaric cruelty . . . the mere mention of which sends chills down one's spine." He gave examples of "the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs. . . ." Mental torture was an act "designed to damage and destroy the human personality."

The treaty had a specific provision stating that nothing, not even war, justifies torture. Congress removed that provision when drafting the 1994 law against torture, thereby permitting someone accused of violating the statute to invoke the long-established defense of necessity.

Posted by Orrin Judd at May 16, 2009 5:24 PM
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