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The Senate Intelligence Report on torture

Citizens across our nation and around the entire world are inflamed over the revelation of, and questions concerning, the U.S. CIA sponsorship of torture and practice of same on so-called “detainees,” or “suspects,” early in the War on Terror. Did torture really take place? Was it effective? Who did it, or authorized it? Should those who engaged in torture be prosecuted? Will they be? What courts might have jurisdiction?

Except for a few die-hard apologists and some who seem to have personally engaged in torture, if there has previously been any doubt about what and by whom, these doubts have been resolved by the release last week of the 500-page report of the Senate Intelligence Committee, based in turn on a 6,000-page (highly redacted) report of the CIA itself, yet to be released.

Less well known, perhaps, is the inconvenient truth that the release at this time was virtually forced on the Obama Administration and Congress by Edward Snowden’s prior leak of detailed information and documents, as well as films (taken by prison guards) which clearly evidence various techniques of “enhanced interrogation” amounting to torture by any reasonable definition. 

These abuses referred to in the Senate report and more specifically revealed in the leaked material include simulated drowning by water-boarding, long periods of isolation, deprivation of basic needs, beatings, obscenities, removal of clothing in freezing conditions, confinement in small, claustrophobic wooden boxes, forced non-medical rectal hydration enemas, and hanging of prisoners in chains overnight, often with feet not touching the floor, sometimes resulting in death (crucifixion?) of the “suspect.” 

Was “enhanced interrogation,” i.e. torture, effective in obtaining actionable information that could be useful in preventing acts of terrorism? There is little evidence for this. Much of the actionable information, such as the identity of Osama bin Laden’s courier, was already known to or obtained by the CIA by means other than torture, or before the suspects were tortured. Most of the suspects we now know were innocent. Many detainees were apprehended and incarcerated as a result of exchange of Judas-style blood money payments to (fake) “informers” (standard rate: $3,000 to $5,000 per head). In most cases before the military commissions, the lack of credible evidence or witnesses has meant the cases could not be referred to U.S. courts of law under the U.S. constitutional principle of habeas corpus.

The “effectiveness” or “usefulness” of torture for some time to come will be a matter of acrid controversy between the apologists-cum-torturers versus the rest of us. For the former, it’s a personal life-or-death struggle for survival. For the rest of us, it’s a question of the survival of our nation as a law-abiding democracy. Nevertheless, the “effectiveness” or “usefulness” of torture is irrelevant to the question of legality and morality of torture.

Should those who have engaged in torture be prosecuted, and will they be? The political answer in this country is probably “No.” The legal answer, however, is a definite “Yes.” The legal basis is enshrined in the U.S. Constitution and in the 1984 international treaty entitled the “Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,” which was sponsored, signed and ratified by the United States in 1988.

Article VI of the U.S. Constitution puts the U.S. law clearly and succinctly: “... all Treaties made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”

Article 1 of the Convention Against Torture defines what is meant by “torture” in detail, explicitly including the inflicting of pain “to obtain information or confession.” Torture is absolutely banned by the Convention. Article 2 allows of “no exceptional circumstances” or “justification,” not even for “state of war” or “any other public emergency.”

Every signatory state is required to criminalize torture under national law and to investigate and prosecute its own citizens or any other person on its territory or under its control (e.g. on board ship or aircraft) suspected of “engaging” in torture. The term “engaging” in torture means doing it, ordering it, trying to justify or condone it and/or conspiring in torture. The requirement of governments to prosecute any or all acts of torture is absolute. There’s no way out. 

The obligation to prosecute applies to every level of official or personal offender, not even excluding heads of state. The Convention asserts that there can be no grant of immunity to anyone. Also, there is no “no statute of limitations,” i.e. time limits, for future prosecution. Several countries have already issued warrants for arrest of suspected torturers including Americans. (This is why U.S. officials who have “engaged” in torture as defined above have been forewarned not to travel in European countries.)

If an American or other person who has engaged in torture is to be prosecuted, the question is, what court or courts have jurisdiction to take the case? The Convention’s answer is the national courts of each and every signatory state. Article 8 also makes provision for extradition between states. In short, torturers can be put on trial in almost every civilized nation — except, perhaps, our own?

Charges can also be brought by any state directly to the International Criminal Court of Justice (ICCJ) in the Hague, for any person — except, oddly enough, for an American citizen who acted solely within the U.S., and who (wisely) remained in the U.S. to avoid arrest abroad. Why? That’s because the U.S. has never joined the ICCJ (just as, for bizarre reasons, the U.S. has never ratified the International Convention on the Rights of the Child.) Sometimes, one has to wonder.

Finally, Article 14 of the Convention Against Torture requires that every victim of an act of torture has an enforceable right to “just compensation,” and further specifies that “in the event of death of the victim as a result of such act of torture, his dependents (usually family members) shall be entitled to compensation.” Thus, the Convention imposes not only criminal sanctions, but civil damage awards as well. Each state involved in torture is required, one way or another, to ensure that adequate compensation is paid. (Think on it: If a tick bite can cost $41.7 million by jury decision in Connecticut, what might torture or death in Guantanamo cost the individual offender, his agency or government?)

If we just bury the torture question under the sand, ostrich-style, what is to prevent torture occurring secretly again and again and again, under different administrations and for different purposes? Are we to set a precedent of ignoring the U.S. Constitution and treaty law? The argument can be made, and has been made, that the release of the Senate report just now could lead to a number of deaths of American military and civilian personnel in foreign countries. That’s probably true. But it’s nothing compared with the effect of U.S. engagement in torture in the first place.

As they say in the medical profession, “The best way to avoid malpractice suits is to quit malpracticing ...” 

Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.