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The Argument Torture Apologists Refuse To Make

by danps Sat May 2nd, 2009 at 05:10:06 AM EST

We have started to see some elaborate defenses of the Bush era torture program, but all of them resolutely ignore the issue at the very heart of it.

For more on pruning back executive power see Pruning Shears.


No Associated Press content was harmed in the writing of this post

Now that we are seeing more and more details about the Bush administration's torture program, it is forcing those in favor of it do defend in greater detail.  Right wing blogs have been the lustiest advocates.  Even someone like A.J. Strata who in his own words has "left the conservative fevered swamps" can write of the left: "Their base is adamant that there be public witch hunts against the Bush administration for being aggressive in the war on terror, and for inflicting a faked drowning reaction in established mass murderers tied to 9-11."  The terminology is fascinating - investigations are witch hunts, the gutting of habeas corpus is being aggressive, waterboarding is fake drowning (sounds more like a girl at the beach trying to get a lifeguard's attention), and Abu Zubaydah and Abd al-Rahim Nashiri have been transmuted through some heretofore unknown Terrorism Philosophers Stone from low level al Qaida functionaries - or potentially even less (via) - into key architects of 9/11.  From there, the story goes, these people gave up valuable intelligence.  The subtext: They had it coming.

Moving up the conservative food chain, on Tuesday Fox News reported that Khalid Sheikh Mohammed was waterboarded far fewer than 183 times in a single month, and therefore reports of his torture are "highly misleading."  It grants that he was waterboarded but will not acknowledge that waterboarding is torture, allowing only that president Obama banned it because HE thinks it is.  The article quotes an anonymous official who breaks down the waterboarding into individual "pours" (you know, like you'd pour yourself a drink) and then tries to compress these pours into single waterboarding "sessions."  And in any event, as David Rivkin and Lee Casey argue (via), as long as it is closely monitored and certain details (such as not allowing water to actually enter the lungs) are observed these sessions are above reproach.  This is what I called the strategy of "play, pause and explain" last year - take something horrible, play it back a little, pause the tape and explain why that little bit it isn't really so bad; repeat.  By chopping it up into many little pieces the accumulated violence of the whole event can be rationalized.

Top conservatives were busy, too.  This past Sunday George Will said "if we are going to say meretricious lawyering is a crime...what do you do about those who are commissioning the lawyering and whose behalf the lawyering was done. Condoleezza Rice, Don Rumsfeld, Dick Cheney and George Bush."  The main argument at this level is that investigating torture would amount to criminalizing political differences.  Teddy Partridge did the honors on that one.  Notice the theme of inept counsel too.  Administration officials did not solicit and receive criminally negligent advice, but were unknowingly handed bad advice.  They then innocently toddled off in blissful ignorance of their legal exposure.  Sorting out which it really was would require an investigation, of course, and since we are now looking forward we cannot ever possibly determine that.

Here is the problem with all of those arguments:  Waterboarding has been universally regarded as torture for hundreds of years - this is no "some say..." debate - and the United States is a signatory to the Convention Against Torture (CAT).  As Andrew Sullivan points out, the CAT is explicit - any act of severe pain, no exceptions.  As Glenn Greenwald points out, Article VI of the Constitution states that treaties we sign are the supreme law of the land (legalism to watch for: the CAT and Geneva Conventions are not technically treaties so they are not binding).  Therefore, even if those tortured were key players, even if they gave us a trove of fantastically valuable intelligence and even if it was only done one time it still is a war crime that we are obligated to prosecute.  Even if we discovered some novel wrinkle to waterboarding that distinguishes it from what was done by the Khmer Rouge or during the Spanish Inquisition, we are still obligated to prosecute.  Even if the decision came as a result of the worst lawyering in the history of law and threatens to lead all the way to the Oval Office, we are still obligated to prosecute.

All the arguments from torture apologists amount to an insistence against that.  If they were honest they would not be approaching it from any of the points of view above.  They would not be trying to convince us that waterboarding isn't torture, that it wasn't done very often, that it wasn't real according to Hoyle waterboarding, that the lawyers screwed up or that it would be terribly difficult to hold the previous administration responsible.  Instead they would simply argue that we withdraw from any agreement that obliges us to do anything about it.

Display:
by danps (dan at pruningshears (dot) us) on Sat May 2nd, 2009 at 05:10:27 AM EST
Not a treaty? By what logic? It was signed like a treaty, ratified like a treaty, and enabling legislation was entered into the US Code. (Title 18 Sections 2340-2340A).

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire
by papicek (papi_cek_at_hotmail_dot_com) on Sat May 2nd, 2009 at 07:07:53 AM EST
I assume the twisted logic is that it is a convention, not a treaty. (although in that case you'd have to wonder why it's on the state departments  official list of treaties).

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Sat May 2nd, 2009 at 07:19:02 AM EST
[ Parent ]
I assume the twisted logic is that it is a convention, not a treaty
Yes, that was what I was getting at.  I'm not an international law scholar so I don't know if signing on to a convention is the same as a treaty.  Will some people say that if the word "treaty" is not explicitly used then the Constitution does not apply?  I could see that.
by danps (dan at pruningshears (dot) us) on Sat May 2nd, 2009 at 07:46:12 AM EST
[ Parent ]
I'm almost dead certain it's legally a treaty (I'm not a lawyer either though). I'm finding that the language of international agreements, accords, treaties, conventions, agreements, etc., is fluid, but that they all constitute treaties. A "Convention" merely signifying that this is a multilateral treaty.

Like I said, it was implemented exactly as a treaty would be, which pretty much shoots that argument out of the water. The senate certainly considered it a treaty when it attached reservations (which is where  the idea of those signing statements Bush was fond of comes from), as allowed under the Vienna Convention on the Law of Treaties.

We haven't violated the treaty as of yet, which is my thinking on it. There's a Senate Intelligence Committee hearing (secret) that's supposed to take a year to complete. This should be enough to keep the US in compliance for now. I look for Justice Department investigations to begin sometime in late 2010 by the earliest (for the midterm elections) and perhaps prosecution to commence sometime in 2011 (when the next presidential cycle gets underway).

No question that the political benefits will be exploited. My only question is, how high will the investigations reach? Does a lawyer go to jail for giving bad advice? Does a vice president go to jail for implementing a criminal policy?

Stay tuned. I will.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire

by papicek (papi_cek_at_hotmail_dot_com) on Sat May 2nd, 2009 at 08:09:01 AM EST
[ Parent ]
I'm off to work. See yas later :)

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire
by papicek (papi_cek_at_hotmail_dot_com) on Sat May 2nd, 2009 at 08:10:14 AM EST
[ Parent ]
Ah from a brief look, treaties are between a limited number of states, whereas conventions are for an unlimited number of states that remain open for further signatures. but thats the only difference.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Sat May 2nd, 2009 at 09:14:16 AM EST
[ Parent ]
Look, I don't think the founders meant for the word "treaty" to be the exclusive language by which international agreements are constitutional or that they intended to foreclose all further permutations and evolution of language.  Whatever the legalistic details it seems like the most reasonable interpretation is for any signed international agreement regulating our actions to be a treaty in spirit of not letter.  I'm just trying to anticipate some of the parsing that I think might start up once the right realizes this isn't going away.  Here on this post - and maybe EuroTrib generally - I think we're all kind of nodding in agreement at each other.  It's the ones on the other side of the political spectrum I'm thinking of.
by danps (dan at pruningshears (dot) us) on Sat May 2nd, 2009 at 09:23:09 AM EST
[ Parent ]
Here on this post - and maybe EuroTrib generally - I think we're all kind of nodding in agreement at each other.

Indeed. If that's the best defense they can offer, they must think they're in real trouble here. In this, I agree with them.

Like I said, I'm not a lawyer, but a quick reading of the Geneva Conventions and the closer reading of the CAT, with all the reservations and objections, gives me a pretty clear notion that someone will view the world through bars for a few years. Is that a good thing? Probably. I haven't gamed out the likely or possible consequences. This is the kind of issue that one can spend all his/her political capital pursuing, and what other good might be accomplished? All I do know is that it is now a headline politicial issue, and it shouldn't be. People are making it a matter of patriotism versus revenge, when it looks to my layman's eye to be a matter of law and of justice.

Frankly, if the Obama administration did nothing else but to bring the US in line with international law, for real - Guantanamo Bay is still holding detainees, after all - then setting the precedent of international norms applied within the US would make his administration a successful one. All sorts of ramifications flow from this.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire

by papicek (papi_cek_at_hotmail_dot_com) on Sat May 2nd, 2009 at 08:20:11 PM EST
[ Parent ]
Alfred McCoy Interview | DemocracyNow! | 1 May 2009

ALFRED McCOY: We're at a critical moment in the debate about torture. We're at the exact moment historically we've been at six times over the past forty years. What's happened since really 1970, right up to the present, because we've been engaged in torture continuously throughout this entire period, is that Congress and the press will conduct a major exposé of torture; the public will be momentarily aroused; there will be no sustained investigation, no prosecution, no penalty; the practice will continue. A few more years later, another revelation, another round of debate, discussion, nothing done, and then it emerges again. ...

In 1994, for example, the US ratified the Convention Against Torture. There was no investigation of past practice. So, when that ratification went through, it was done in a way that in fact legalized psychological torture, because when we ratified that convention, we also, if you will, passed a reservation, which then got codified into US federal law, Section 2340 of the US Federal Code. In that code, we said that psychological torture, which is actually the main form of torture practiced by the United States since the 1950s, is basically not torture. ...

...Waterboarding is the most cruel, the most extremely cruel form of torture known to man, very simply because of this--and people don't understand, I think, waterboarding. Amy, if you and I were riding in a car, and we went off a bridge in January here in Wisconsin and crashed through the ice and went down to the bottom of the Ohio River, within three minutes you and I would be dead from drowning. If there were an infant in a car seat behind us, that infant could survive for twenty minutes under water. A weak, fragile three-month-old infant could survive twenty minutes under water, be plucked by the rescue crew from the waters and suffer no brain damage, be perfectly fine. Alright? How can this happen? It's the mammalian diving reflex. The human being is so afraid of death by drowning that we are hardwired into our biology, into our...

JUAN GONZALEZ: Yeah. Professor McCoy, in terms of waterboarding, the revelations of the number of times that some of the detainees, and into the hundreds, were waterboarded, and yet the administration continues to say that it--apparently that it's not going to pursue prosecutions of this. Your reaction?

ALFRED McCOY: Yes. The number of times--one of the al-Qaeda suspects was waterboarded eighty-three times. Khalid Sheikh Mohammed, the mastermind of the 9/11 attack, was waterboarded 183 times. This is extraordinary. This is beyond the idea of sort of clinical, scientific, dispassionate torture. That's pure sadism. Pure sadism. And that's another problem of torture, OK?

wiki, UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987

US ratification, 18 Apr 1988, codified 21 Oct 1994

Title 17, Part I, Chapter 113C, §2340. Definitions

As used in this chapter--
(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--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

See also §2340A. Torture; §2340B. Exclusive remedies here

US DOJ, "LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A" (2004), against which to evaluate Mr Obama's prohibitions and procedural directions given by agency rules or executive orders for execution of the MCA, for example, going forward. Of course.

       

Diversity is the key to economic and political evolution.

by Cat on Sat May 2nd, 2009 at 10:28:25 AM EST
Ironically, the legal argument is probably the weakest, because realpolitik always trumps treaty-making.

In Washington-wackyland, treaties are expedient PR, not binding promises. When Reagan signed the treaty the US was known to be torturing in South America, so the intent to abide the law doesn't seem to have been there - I suspect it was more of a PR whitewash, and a one-up over the USSR.

The US record on abiding by international law is not good, so a legal argument - in practice - is more theoretical than useful.

But this has turned into a disaster for the psychopathic right because it is now a public discussion of policy. Since I'll be amazed if anyone important does jail time, that's more or less the worst outcome possible here.

I don't think torture has stopped, or will stop - but there's now a kind of public standard for behaviour which means that future revelations may be prosecuted, or at least punished, even if the Bush people get away with it.

There's been a subtle move in the public mind away from ticking bombs and Bauer-heroics to some basic modicum of morality and self-respect in international relations. This is completely corrosive to the right, but it's where the public is now.

It may be temporary - but at least it's a start.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sat May 2nd, 2009 at 10:54:28 AM EST
[ Parent ]
You're optimistic about how the public will value the historical significance of current events. I'm not. After all, I'm cold to both adminstrations' claims to remedial action --UK and US-- and McCoy, like you, recognizes how government continues to manufacture "informed consent" to regimens of torture, as the facts become known.

It may be temporary

It is. What generalizable dismay one may perceive through the press expresses so much lip service to propriety rather than the semblence of negotiation among political adversaries --say, the psychopathic left and the psycopathic right-- within their chambers.

I foresee no disaster for either according to domestic or international tribunals. Readers learned and ignorant will continue to argue the meaning of pain and "prolonged pain," if only to demonstrate their dexterity in service of the authorities to whom they owe a paycheck.

Mr Obama's preposterous evocation of Churchill, seeming to draw borrowed interest --goodwill-- from the latter's inpenetrable moral turpitude to feed his own ambiguous function as USC executive, caught my attention. Consequently, I found online that two columnists had hastily published synopses to furnish his ill-conceived interpretation of Downing Street's besieged ethos. (Ben Macintyre, Mickey Kaus.)

Mr Obama proclaimed on the occasion of his 100th day in office,

I am absolutely convinced it ["an end to these practices"] was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.

That is to reserve torture, advisedly, among a number of collection methods. That is not qualify "values" of humane conduct or "information." That is not to repudiate "who we are" or "severe pain and suffering" (DOJ opinion, 2004). But to exclude moral evaluation --what is right, what is wrong about torture-- altogether from public discussion of the evident depravity, indemnified by public trusts.

Diversity is the key to economic and political evolution.

by Cat on Sat May 2nd, 2009 at 02:09:31 PM EST
[ Parent ]
MarketTrustee
we also, if you will, passed a reservation, which then got codified into US federal law, Section 2340 of the US Federal Code. In that code, we said that psychological torture, which is actually the main form of torture practiced by the United States since the 1950s, is basically not torture

Text of the reservations attached by the Senate in its ratification The Convention against Torture: (Source: THOMAS: The Library of Congress)

Treaty Number:   100-20
Transmitted:   May 20, 1988
Short Title:   CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Type:   Human Rights
Countries:   n/a
Formal Title:   The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by unanimous agreement of the United Nations General Assembly on December 10, 1984, and signed by the United States on April 18, 1988.
Senate Executive Report(s):   101-30
Source:   United Nations

Legislative Actions  

Floor Action:   May 20, 1988 - Received in the Senate.
Floor Action:   May 23, 1988 - Referred to the Committee on Foreign Relations by unanimous consent.

Committee Action:   July 19, 1990 - Committee on Foreign Relations. Ordered to be reported without amendment favorably.

Committee Action:   January 30, 1990 - Committee on Foreign Relations. Hearings held. Hearings printed: S.Hrg. 101-718.
Floor Action:   July 19, 1990 - Reported by Mr. Pell, Committee on Foreign Relations, without printed report. With a resolution of advice and consent to ratification with reservations, understandings and declarations.
Floor Action:   August 30, 1990 - Printed report filed (Ex. Rept. 101-30_ together with additional views.
Floor Action:   October 27, 1990 - S.AMDT.3200:  Proposed by Senator Pell.
Floor Action:   October 27, 1990 - S.AMDT.3200:  Amendment SP 3200 agreed to in Senate by Voice Vote.
Floor Action:   October 27, 1990 - S.AMDT.3201:  Proposed by Senator Pell.
Floor Action:   October 27, 1990 - S.AMDT.3201:  Amendment SP 3201 agreed to in Senate by Voice Vote.
Floor Action:   October 27, 1990 - S.AMDT.3202:  Proposed by Senator Pell.
Floor Action:   October 27, 1990 - S.AMDT.3202:  Amendment SP 3202 agreed to in Senate by Voice Vote.
Floor Action:   October 27, 1990 - S.AMDT.3203:  Proposed by Senator Pell.
Floor Action:   October 27, 1990 - S.AMDT.3203:  Amendment SP 3203 agreed to in Senate by Voice Vote.
Floor Action:   October 27, 1990 - Resolution agreed to in Senate with amendments by Division.

Resolution:   TEXT OF RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION AS REPORTED BY THE COMMITTEE ON FOREIGN RELATIONS:

@Resolved, (two-thirds of the Senators present concurring therein), #That the Senate advise and consent to the ratification of The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by unanimous agreement of the United Nations General Assembly on December 10, 1984, and signed by the United States on April 18, 1988,
Provided that:
I. The Senate's advice and consent is subject to the following reservations:
(1) That the United States shall implement the Convention to the extent that the Federal Government exercises legislative and judicial jurisdiction over the matters covered therein; to the extent that constituent units exercise jurisdiction over such matters, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Convention.
(2) 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.
(3) That pursuant to Article 30(2) the United States declares that it does not consider itself bound by Article 30(1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.
II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:
(1) (a) That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(b) That the United States understands that the definition of torture in Article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.
(c) That with reference to Article 1 of the Convention, the United States understands that "sanctions" includes judically-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law provided that such sanctions or actions are not clearly prohibited under international law.
(d) That with reference to Article 1 of the Convention, the United States understands that the term"acquiescence" requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.
(e) That with reference to Article 1 of the Convention, the United States understands that noncompliance with applicable legal procedural standards does no per se constitute torture.
(2) That the United States understands the phrase, "where there are substantial grounds for believing that he would be in danger of being subjected to torture," as used in Article 3 of the Convention, to mean "if it is more likely than not that h e would be tortured."
(3) That it is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.
(4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.
III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing.
(2) That the United States declares, pursuant to Article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. It is the understanding of the United States that, pursuant to the above mentioned article, such communications shall be accepted and processed only if they come from a State Party which has made a similar declaration.
Index Terms :  
100-20
CRUEL TREATMENT
DEGRADING TREATMENT
INHUMAN TREATMENT
PUNISHMENT
TORTURE
Control Number:  100TD00020

The text of the reservations, declarations and understandings of the Senate in its ratification was amended slightly before being submitted to the UN Secretary General: (Source: treaties.un.org)

United States of America 22

United States of America22

Upon signature :

Declaration:

       "The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary."

Upon ratification :

Reservations:

       "I. The Senate's advice and consent is subject to the following reservations:

       (1) 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.
       (2) That pursuant to article 30 (2) the United States declares that it does not consider itself bound by Article 30 (1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.

       II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

       (1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
       (b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.
       (c) That with reference to article 1 of the Convention, the United States understands that `sanctions' includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.
       (d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.
       (e) That with reference to article 1 of the Convention, the Unites States understands that noncompliance with applicable legal procedural standards does not per se constitute torture.
       (2) That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'
       (3) That it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.
       (4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.
       (5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfilment of the Convention.

       III. The Senate's advice and consent is subject to the following declarations:

       (1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing.

Note the differences. Senate reservation 1.(1) moved and became language in the Senate "understandings" section. As far as I know at this point, the legal status of declarations and understandings is undetermined. It says nothing in the Vienna Convention on the Law of Treaties about either declarations or understandings. This may impact the legal status of US ratification, but I don't think so. (This is one of those "I'm not a lawyer caveat moments.")

Article 16 of the CAT specifically applies to treatment that, while not amounting to torture, is nonetheless cruel, inhumane, or degrading. From the UN Office of the High Commissioner of Human Rights (Articles 10, 11, 12, and 13 are referred to in Article 16, so I include them here):

Article 10
1. Each State Party shall ensure that education and information regarding the prohibition against
torture are fully included in the training of law enforcement personnel, civil or military, medical
personnel, public officials and other persons who may be involved in the custody, interrogation or
treatment of any individual subjected to any form of arrest, detention or imprisonment.
2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the
duties and functions of any such person.

Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and
practices as well as arrangements for the custody and treatment of persons subjected to any form of
arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any
cases of torture.

Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial
investigation, wherever there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction.

Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any
territory under its jurisdiction has the right to complain to, and to have his case promptly and
impartially examined by, its competent authorities. Steps shall be taken to ensure that the
complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of
his complaint or any evidence given.

Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture as defined in article I,
when such acts are committed by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. In particular, the obligations contained in
articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to
other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international
instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or
which relates to extradition or expulsion.

Alfred McCoy is correct in that the Vienna Convention on the Law of Treaties (Part 2, Section 2, Articles 19-23) allow states to become parties to parts of treaties. They are not bound by those parts of treaties they have expressed reservations to are not. There are conditions, though. The reservation may not be of central importance to either the meaning or the implementation of the treaty, the other state party to the treaty has 12 months to offer an objection, which invalidates the reservation at least to the extent that the portion of the treaty which the reservation is about is still in force between the reserving and the opposing states. In the case of multilateral treaties, all the other states have 12 months to object to the reservation in writing. Does this invalidate the ratification? It does not. The reserving state is still legally bound to honor the treaty.

The language of the Vienna Conventions on the Law of Treaties is confusing, so let me illustrate instead. The UN treaty depositry sends me a handful of emails everyday on treaty actions taken by the States Parties to various conventions out there. These days, the active convention in the diplomatic world concerns the rights of disabled people (it's a pity this one doesn't get any press). Notifications of acceptance, accession, ratification, reservation and objection must be deposited with the Secretary General and are made available to the public. It's a wonderful service.

Here's one that came today. Cyprus has ratified the Optional Protocol to The Convention against Torture.

Bravo CYPRUS!

One that came in four days ago was in regard to the International Convenant on Economic, Cultural, and Social Rights. Slovakia lodged an objection to a reservation entered by Pakistan. At the end of the document is the following:

This objection shall not preclude the entry into force of the International Covenant on
Economic, Social and Cultural Rights between the Slovak Republic and the Islamic Republic of
Pakistan. The International Covenant on Economic, Social and Cultural Rights enters into force in its
entirety between the Slovak Republic and the Islamic Republic of Pakistan, without the Pakistan
benefiting from its reservation.
(emphasis mine)

Whether this applies to Pakistan's obligations under the treaty regarding states party to the covenant other than Slovakia is unclear to me. The Law of Treaties language is also unclear. (Hell, it's miserable, I may as well admit it. If anyone has a definitive answer to this please feel free to enlighten me.)

Back to our story.

Regarding the reservations the US expressed in its ratification to the CAT, there were a few objections:

Finland            27 February 1996

With regard to the reservations, understandings and declarations made by the United States of America upon ratification:

       "A reservation which consists of a general reference to national law without specifying its contents does not clearly define to the other Parties of the Convention the extent to which the reserving State commits itself to the Convention and therefore may cast doubts about the commitment of the reserving State to fulfil its obligations under the Convention. Such a reservation is also, in the view of the Government of Finland, subject to the general principle to treaty interpretation according to which a party may not invoke the provisions of its internal law as justification for failure to perform a treaty.
       The Government of Finland therefore objects to the reservation made by the United States to article 16 of the Convention [(cf. Reservation I.(1)]. In this connection the Government of Finland would also like to refer to its objection to the reservation entered by the United States with regard to article 7 of the International Covenant on Civil and Political Rights. [For the text of the objection see under "Objections" in chapter IV.4].

Sweden                27 February 1996

With regard to the reservations, understandings and declarations made by the United States of America upon ratification:

       "The Government of Sweden would like to refer to its objections to the reservations entered by the United States of America with regard to article 7 of the International Covenant on Civil and Political Rights.  [For the text of the objections see under "Objections" in chapter IV.4] . The same reasons for objection apply to the now entered reservation with regard to article 16 reservation I (1) of [the Convention]. The Government of Sweden therefore objects to that reservation.
       It is the view of the Government of Sweden that the understandings expressed by the United States of America do not relieve the United States of America as a party to the Convention from the responsibility to fulfil the obligations undertaken therein."

Netherlands            26 February 1996

With regard to the reservations, understandings and declarations made by the United States of America upon ratification:

       "The Government of the Netherlands considers the reservation made by the United States of America regarding the article 16 of [the Convention] to be incompatible with the object and purpose of the Convention, to which the obligation laid down in article 16 is essential. Moreover, it is not clear how the provisions of the Constitution of the United States of America relate to the obligations under the Convention. The Government of the Kingdom of the Netherlands therefore objects to the said reservation. This objection shall not preclude the entry into force of the Convention between the Kingdom of the Netherlands and the United States of America.

       The Government of the Kingdom of the Netherlands considers the following understandings to have no impact on the obligations of the United States of America under the Convention:

       II. 1 a This understanding appears to restrict the scope of the definition of torture under article 1 of the Convention.
       1 d This understanding diminishes the continuous responsibility of public officials for behaviour of their subordinates.
       The Government of the Kingdom of the Netherlands reserves its position with regard to the understandings II. 1b, 1c and 2 as the contents thereof are insufficiently clear.

Also, in the end notes:

On 26 February 1996, the Government of Germany notified the Secretary-General that with respect to the reservations under I (1) and understandings under II (2) and (3) made by the United States of America upon ratification "it is the understanding of the Government of the Federal Republic of Germany that [the said reservations and understandings] do not touch upon the obligations of the United States of America as State Party to the Convention.".

Now, as to the question whether the US is compelled by the CAT to initiate prosecutions of torturers and of public officials ordering, acquiescing, or condoning the vilest of torture. Maybe not. As I said before the legal status of understandings and declarations is unclear, but it appears that either the US slipped a curve ball past the international community, or the rest of the States Parties to the CAT were ok with letting this one go (for whatever reason) Understandings (5):

(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfilment of the Convention. (emphasis mine)

My understanding of "shall" language is that is compels. If the law says you "shall" wait three days before issuing a gun permit, then you are required to hold a gun permit for at least three days before issuing it. "May" language makes that optional. In the gun permit example, "may" language permits the issuer to withhold the permit for three days without the person applying for it having legal recourse to get it earlier.

The CAT is clear in its language. States Parties "shall" legislate against, investigate, prosecute, offer compensation, etc. The States Parties, having consented to the convention, have no choice in the matter. "May" language in the CAT is almost exclusively about giving the Committee against Torture greater leeway in its investigation and reporting duties.

As I said before, the legal status of understandings and declarations is unkown to me. I don't know of any case law yet, though I'll have to look at this. The closest I've ever been to a law library was when I walked past the door of one once, years ago. I don't believe I actually looked through the door. It appears to me, however, the the United States may not be compelled to prosecute torturers, as the treaty stipulates. I'm wondering if that single "may" could possibly override, if it found to have any legal force at all, all the "shalls" in the CAT.

I hesitate to mention this on dkos. They'd absolutely go beserk.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire

by papicek (papi_cek_at_hotmail_dot_com) on Sat May 2nd, 2009 at 11:22:38 PM EST
[ Parent ]
This one comment is enough for a whole diary.

Berserk in a good or bad way? If it would make them beserk and get them campaigning for prosecutions that would be a good thing.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Sun May 3rd, 2009 at 07:06:49 AM EST
[ Parent ]
maybe it still will make a diary, but as you can see, I haven't reached a conclusion yet. I'm learning how to do law research online these days though I really need to ask a lawyer or scholar. There's no substitute for knowing all the law.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire
by papicek (papi_cek_at_hotmail_dot_com) on Sun May 3rd, 2009 at 07:40:23 AM EST
[ Parent ]
Berserk in a good or bad way? If it would make them beserk and get them campaigning for prosecutions that would be a good thing.

They're already beserk in a bad way. Prosecutions become much less likely and legitimate if they're perceived as being pursued for revenge. Dkos sounds too much like people looking for victors' justice.

I want the precedent. Whether people go to jail is secondary except as it reinforces the law, because a failure of internaional law on this point puts US servicemen at risk and everyone else in the world who find themselves in the grasp of those who feel they can ignore the CAT. We've already seen Egypt citing American torture practice as a justification.

The CAT is a good law. I want it enforced. I want the US to pay heed to international norms that we now only give lip service to.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire

by papicek (papi_cek_at_hotmail_dot_com) on Sun May 3rd, 2009 at 07:52:51 AM EST
[ Parent ]
Al Jazeera English - Americas - Rice dismisses torture claims

Condoleezza Rice, the former US secetary of State, has rejected claims she approved the use of torture when she was US national security adviser.

Rice, who held the positions under the administration of George Bush, the former US president, triggered controversy recently when she said at Stanford University that if torture techniques including waterboarding were authorised by Bush, then they were not illegal.

Asked by Al Jazeera whether she stood by her remarks, Rice said: "Let me be very clear: The president [George Bush] said he would not authorise anything that was illegal. 

"It was not legal because he authorised it; it was because he said he would do nothing illegal and the justice department and the attorney general said that it was legal."



Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon May 4th, 2009 at 09:13:56 AM EST


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