The Torture Ban Scam

When President George Bush decided to accept Senator John McCain’s amendment to ban the United States from torturing (specifically, using "cruel, inhuman or degrading treatment or punishment “on) anyone in U.S. government custody held anywhere,” the collective response should have been “So what?”

Yes, Bush had previously threatened to veto the Defense appropriation bill if it contained a ban on torture. Yes, Vice President Cheney proposed a compromise: viz., no one can torture except the CIA. Nevertheless, the response should have been “So what?” Here’s why:

It was Already against the Law for the USA to Torture People

So much time has been wasted on irrelevancies about the status of the detainees. Are they prisoners of war or enemy combatants under the Geneva Conventions? Does it matter if they wore uniforms or not when they were captured? And so on. But it was all not to the point, merely a huge distraction from the one international treaty to which the USA is a signatory and clearly shows that the USA’s practices were clearly in violation of the law:

Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. (emphasis mine) (link)

In case there is any doubt, Article 6 of the US Constitution makes it explicitly clear that all treaties the USA enters into are to be treated domestically as the “supreme law of the land.” Therefore this convention already bans the USA from committing torture. Moreover notice what it specifically states:

• It defines torture as any act that causes severe physical or mental pain or suffering used either to gather information or a confession.


• It doesn’t make any irrelevant distinctions between “prisoners of war” an “enemy combatants.” It says no person should be tortured. End of discussion.


• You can’t use any excuse as a grounds for torturing someone, not even war or the threat of war. The “war on terror” qualifies as an “exceptional circumstance” that cannot be invoked as excuse for torture.


• It doesn’t matter if a superior told you to torture—any superior, even the President of the USA. You are not allowed to torture anyone, period.


• You can’t send anyone to another nation that tortures people in order to let them do the torturing for you. Therefore, all the extraordinary rendition the USA has engaged in violates international law and, therefore, the US Constitution. If Bush knew about this, he should be impeached for violating Article 6 of the USA Constitution.

It’s absolutely extraordinary that many commentators have acted as if the USA needed a law banning torture, as if that would somehow stop the USA from torturing people. If the treaty banning torture the USA has already signed and made its “supreme law” hasn’t stopped it from torturing others, then what was McCain’s amendment other than an act of redundancy. A nice show perhaps, but it was largely meaningless.

Using the Army Field Manuel is Meaningless
McCain’s amendment required US interrogators to use the US Army Field Manual on Interrogation as the guideline for conducting interrogations of prisoners. Unfortunately, however,

The Army is reportedly working on a new, classified addendum to its field manual that would allow interrogators to use more stress-inducing methods. (link)

That’s really quite clever. Announce loudly to the world that you will follow a rule book, but then quietly change the rule book and “classify” its changes as too sensitive for the public to see.

Interrogators are Protected by the Nuremberg Defense

One of the compromises the Bush administration offered McCain was to agree to ban torture, but make it illegal to prosecute any interrogator who engages in torture. But McCain wouldn’t accept the “compromise”:

In recent weeks, the administration had been seeking to add language that would offer protection from prosecution for interrogators accused of violating the provision. But McCain rejected that, arguing it would undermine the ban by not giving interrogators reason to follow the law. (link)

Although this makes McCain appear to be a man of principle, what McCain was willing to offer the administration instead was a better deal. In his version, the USA would conduct show trials of interrogator-torturers, but rig their outcomes with a standard exculpatory defense for the torturers, one that amounts to little more than the Nuremberg defense:

Under the emerging deal, the CIA and other civilian interrogators would be given the same legal rights as currently guaranteed members of the military who are accused of breaking interrogation guidelines, these officials added. Those rules say the accused can defend themselves by arguing it was reasonable for them to believe they were obeying a legal order. (link)

Although no one is obligated to obey an illegal order in the military, the distinction is moot given that the USA interrogators have already violated the law by torturing prisoners. And, as far as anyone knows, they might continue to torture them under a newly revised but classified US Army Field Manual on Interrogation that creates the grounds for saying, “I thought I was following a legal order.”

Every Nazi war criminal tried at Nuremberg followed orders that were legal according to Nazi Germany. If that defense wasn’t legal for them, why should it be legal for USA war criminals?

The Graham-Levin Amendment

Senators Lindsey Graham and Carl Levin have effectively introduced a bill into the defense appropriation that makes much of McCain’s already moot amendment more moot. Actually, their amendment only builds on another amendment which had the same effect on McCain’s:

The language in the original Senate version already placed new and significant restrictions on Guantánamo Bay detainees’ access to federal court. It eliminated the right for detainees to bring habeas corpus claims challenging the legality of their ongoing detention and asserting their innocence. Instead, detainees would be allowed to seek independent court review of their detention at just two points in time – after their initial designation as an enemy combatant by a Combatant Status Review Tribunal and after conviction by a military commission – and would be allowed to raise only a very narrow set of claims. They could challenge the procedures and constitutionality of the tribunals and commissions, but would be precluded from seeking an independent review of the factual basis for their detention or conviction. (link)

There is very little wiggle room in these restrictions on detainees. They can’t claim the military tribunals made discoverable factual errors in their rulings. They can challenge the constitutionality of the tribunals, but the constitutionality of military courts has already been decided. They could challenge the procedures used, e.g. the use of torture to obtain confessions. But this is exactly what the Graham-Levin amendment prohibits:

But the legislation containing the McCain Amendment currently includes another provision – the Graham-Levin Amendment – that would deny the five hundred-some detainees in Guantánamo Bay the ability to bring legal action seeking relief from the use of torture or cruel and inhumane treatment. And it implicitly authorizes the Department of Defense to consider evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guantánamo Bay. If passed into law, this would be the first time in American history that Congress has effectively permitted the use of evidence obtained through torture. (link)

Although torture will be (again) technically illegal, a detainee does not have a right to bring an action against the USA for being tortured or for the use of “evidence” against him obtained through torture.

In short, McCain’s prohibition has virtually no practical effect. It’s smoke and mirrors, designed to create the appearance of prohibiting torture, probably as a way to mollify international and domestic concern about the USA’s appalling treatment of its detainees. But torture will continue. The only difference is torture will be more difficult to detect. That’s why Bush agreed to McCain’s amendment. It promised more of the same, only now concealed more effectively than before.