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September 23, 2006

Playing Legal with Torture

Legal Fiction has be best breakdown of the so-called compromise on torture. The bottom line, we are a nation that has put the definition of torture in the hands of one person, the President. And our current President has consistently condoned it, even encouraged it

Here is part of the actual language of the "compromise" regard this.

(3)INTERPRETATION BY THE PRESIDENT.

(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

. . . [emphasis added]

This sounds like the President can "promulgate higher standards" than grave breaches to the Geneva Accords. What it really means is that he can promulgate lower standards than the Geneva Accords provided they do not construe "grave breaches." The key to understanding this paragraph lays in the words "grave breaches." Elsewhere in the document a "grave breach" is defined as

(A) TORTURE. The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) CRUEL OR INHUMAN TREATMENT. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control. [emphasis added]

and then the following are specifically excluded:

(C) PERFORMING BIOLOGICAL EXPERIMENTS, (D) MURDER, (E) MUTILATION OR MAIMING, (F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY, (G) RAPE, (H) SEXUAL ASSAULT OR ABUSE, (I) TAKING HOSTAGES

Note that in paragraph A torture is defined as certain acts in the context of "discrimination." If "discrimination" is not involved then inflecting "severe physical or mental pain or suffering" is just fine by the lights of this paragraph. In fact, this paragraph appears to condone capricious and arbitrary acts of torture. It's not clear that paragraph B excludes anything but "serious physical abuse." When taken as a whole this language looks like anything that doesn't leave a permanent physical mark is okay. Not even President Bush thinks performing biological experiments etc is okay.

The principle problem with all of this is that it sets a lower limit on the definition of torture but allows anything between this low limit and a handshake to be okay if the President says it is.

As Associated Press Writer Anne Plummer Flaherty said, ". . . enough legal parsing was added to the bill to achieve the president's desired effect anyway." But our national moral ethos cannot tolerate "legal parsing" when it comes to torture. John in DC on AmericaBlog correctly points out that water boarding appears not to be torture under this definition. But last November, McCain said it was torture. And any rational person would have agreed with McCain on this. Since he has signed on to the "compromise," it looks like he has changed his mind. I haven't.

To my simple mind, the definition of torture is also simple. If you would object to the amount of stress, mental or physical, that might be applied to someone you do not know being applied to a member of your family in order to get them to do something they otherwise don't want to do, then that amount of stress is torture. No legal parsing is required. While there are several other things that disturb me about this "compromise" I find this one in need of comment.

RETROACTIVE APPLICABILITY. The amendments made by this section, except as specified in paragraph 2441(d)(2)(E) of title 10, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002 of Public Law 107-273).

This paragraph is intended to protect persons who have already broken the law. It has no other purpose and it might be unconstitutional. I am not sure of the legal precedents. Remember this from section 9 of the Constitution, "No bill of attainder or ex post facto Law shall be passed." But then protecting and defending the Constitution has never been a very high priority.

Bottom line: Let's stop all torture, stop making convoluted legal provisions for it and stop trying to protect torturers from the legal consequences of their the immoral and illegal acts.

Posted by Duane Smith at September 23, 2006 11:27 AM | Read more on Current Events |

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Comments

I've not read anything more than what you have printed up here. I also really dislike the direction Bush has tried to push this, but re-quoting from your first paragraph:

"confession, punishment, intimidation, coercion, _or_ any reason based on discrimination of any kind"

How you parse that statement really depends on how you parse the "_or_". As a logical operator then all acts but grave ones are illegal, as well as lesser acts based on discrimination. There are other ways of parsing it, however.

When a court looks at congress' intent, don't they look at more than just the wording in the law? An implicit "ack" that lawmakers don't always write what they mean or acidentally leave an "out" in the language.

You'd think, however, this issue would be pretty simple. What really worries me is that we define torture so technically that as we invent new techniques (hey! Look, mind probe isn't defined in there -- we can use it!) they may not be covered, even though they should be. This reminds me of the problem of what consititues foul language. What you get arrested for in a small southern town and NYCity are probably different because the social norms are different. And they evolve with time.

I'm also almost positive that other laws have been passed that are back-dated. I have no idea if they have been court tested, however.

Great blog. Keep it up!

I just readead this and corrected about 10 grammar/spelling mistakes. I'm tired. I'm sure I've missed others. Sorry.

Posted by: Gordon Watts at September 23, 2006 10:31 PM

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