Torture-Lite

One of the biggest questions you probably have at this point is--how did the Secretary of Defense and Attorney General manage to provide a legal justification for torture without breaking U.S. or International Law? How did they justify holding people in stress positions, using dogs, and other techniques that we find abhorrant?

George Washington University has a listing of many of the memos available so you can read them yourself if you'd like, but ABC news provides a quicker summary. The memos authorize the following techniques for use on detainees:

• Shaking a detainee by the front of his shirt
• Slapping his face
• Slapping (but not punching) his abdomen 
• Requiring the detainee to stand for long periods of time
• Hypothermia
• Waterboarding

You will find the legal justification if you read through all of the memos that GWU provides, but in the Northwestern Journal of Human Rights, J. Trevor Ulbrick provides a summary and legal analysis. What it boils down to is that when the U.S. Senate ratified the Convention against Torture, they did so with reservations. You can read the reservations at the University of Minnesota Human Rights Library, but what the critical paragraph is the first one:

“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.”

Essentially, if it's not banned by any of those amendments, then we can do it and still fulfill our obligation under the Torture Convention, even if other countries would say what we're doing is prohibited under international law.

Okay, so what do the Fifth, Eight, and Fourteenth Amendments say?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Fifth Amendment]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [Eighth Amendment]

The Fourteenth Amendment is extensive and discusses many topics beyond the topic of this post, but the relevant paragraph is:

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 most relevant part of these amendments is the Eighth, which bans "cruel and unusual punishment," and the architects of this strategy have defined "cruel and unusual" as very different than the "ill- and degrading treatment" that is also prohibited by the Torture Convention. The result?

“Because the US definition of ill- treatment is linked to domestic jurisprudence, the US and other countries could come to different conclusions about whether a particular interrogation method constitutes ill- treatment. Under the terms of its reservation, the US can engage in any practice not prohibited by the US Constitution, even if that practice might be considered a violation of international law by other nations" (Ulbrick, 222-223).

Others are, understandably, not happy with this. They argue that it's a double standard, whereby the U.S. requires other countries to change their laws to comply with treaties while refusing to change our own to bring them in line with the treaties we have agreed to. However, since no state has challenged our reservation to the Torture Convention as invalid, we are not violating the Convention. Ulbrick concludes:

“One can argue, as a matter of morality or foreign policy, that the US should not exert its outsized power to gain exemptions from human rights treaties. Still, whatever the moral or political ramifications of this ‘double standard,’ it has no legal impact under the Vienna Convention” (Ulbrick 224).