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On torture-6: The legal excuse

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 3: These actions did not violate any laws or treaties binding on the US.

Yes they do. That crazy, soft-on-terror ideologue Ronald Reagan signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984, and such international treaties have the power of law. In a signing statement, Reagan said the following: “Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

Some have argued that these treaties only apply to prisoners of war, uniformed soldiers of another country captured on the battlefield, and that the so-called ‘enemy combatants’ do not warrant such protections. Charles Krauthammer who, like fellow-torture advocate Alan Dershowitz, starts from the ends he wants (the freedom for the US to torture others but not allow others to torture US citizens) and argues back to the premises, says that a captured terrorist “is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever.” (my italics)

Apart from the incredibly barbaric nature of the assertion that anyone who is detained by security forces for whatever reason has no protection whatsoever against any brutality inflicted on them merely because someone claims that he is a terrorist, this argument is not even legally sustainable. The above-mentioned Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment says that protection against torture applies to all persons, not just those formally designated as prisoners of war.

We also need to distinguish between the third Geneva Convention which refers to prisoners of war and the fourth Geneva Convention which deals with other people involved in conflicts. Article 3 of Geneva Convention IV says:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [i.e., out of the battle] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (my italics)

This idea that there can be a whole class of people who have no rights whatsoever and to whom we can freely apply torture is a bizarre new invention, created for the purpose of excusing the acts of torture authorized and condoned by the US government.

[Retired Brigadier General John Adams] made clear that during all his years of service and training, including his tenure as a professor at West Point, what he learned and what he taught was consistent: the United States military always acts under the rule of law, in accordance with the Geneva Convention, and upholds the Constitution. What was not taught, or even discussed, were terms like harsh or enhanced interrogation techniques (“I never heard those terms used”), or arguments concerning what constitutes a so-called unique enemy (“In all my training, the current discussions are the first time I ever heard that argument used”). Said Adams: “I have never known anyone in a leadership position in the military who would condone torture. They would never do it. It would go against all the training we had, and against what we were trained to do, which is to uphold the Constitution and the rule of law.”

It may be possible that legal ‘brains’ similar to the infamous John Yoo and Jay Bybee in the Bush Justice administration may be able to find some tortured interpretation of the law and treaties that allow a tiny legal loophole in these treaty obligations. But it is truly disgusting to watch people who do not hesitate to apply broad sweeping moral judgments when torture is done by others suddenly retreat into nitpicking legalistic defenses when torture is done by the US. They seem to then think that if everything is ‘legal’ then it is acceptable. Some people argue that the real ‘mistake’ that the Bush administration made was in not going to Congress and getting a law passed that would have made all these practices legal, rather than depend on internal memos by the Office of Legal Counsel in the Justice Department.

That misses the point. A country cannot make torture legal by changing its internal laws. Torture is considered a crime so vile and inexcusable that it is beyond the pale of civilized behavior and thus cannot take refuge within national boundaries or jurisdictions. It is a crime against humanity and anyone anywhere can take action against any suspected perpetrators.

POST SCRIPT: Ventura ventures into the torture debate

Former Minnesota governor Jesse Ventura was once a Navy SEAL and underwent waterboarding as part of the SERE training. He says that waterboarding is undoubtedly torture and that torture produces worthless information. He tells Larry King, “I’ll put it to you this way, you give me a waterboard, Dick Cheney and one hour, and I’ll have him confess to the Sharon Tate murders.”

He further says, “I will criticize President Obama on this level; it’s a good thing I’m not president because I would prosecute every person that was involved in that torture. I would prosecute the people that did it. I would prosecute the people that ordered it. Because torture is against the law.”

Watch:

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