Chapter 27

1. Chapter 27 Torture

2. Prior to 2002 • Nuremberg • Trial of the Japanese War Criminals • International agreements and treaties on torture • Secretary of Defense William Perry - 1996 • He also declared that the Defense Department would never again advocate torture or other inhumane treatment in its training programs.

3. Why is Torture Special? • Does it violate jus cogens? • What does that tell us? • Why is it considered worse than terrorism, in that terrorism does not violate jus cogens? • Is there any evidence that torture is a useful interrogation device?

4. The Political Uses of Torture prior to 9/11 • Why was torture used by Pinochet? • Was it to get information? • Why else would you use torture? • What about Pol Pot and others? • What does it say about a country to accuse it of using torture? • Should we care?

5. The Geneva Convention • What does the Geneva Convention require for the treatment of prisoners of war? • Why did the US and other nations agree to the Geneva Convention? • Does it apply to spies and illegal combatants? • What are the problems in defining prisoners of war in asymmetric (terrorist) warfare? • What is the timeframe problem for the war on terror?

6. The Taliban v. al Qaeda • Why should Taliban soldiers in Afghanistan be given prisoner of war status? • Why does al Qaeda not get prisoner of war status? • Why are they hard to tell apart, i.e., what is the uniform of a Taliban soldier? • What is the rationale for downgrading the status of the Taliban when we take over Afghanistan?

7. The Office of Legal Counsel (OLC) • Are prisoners of war under the Geneva Convention subject to harsh interrogation? • Why is there an Army manual on interrogation? • Why is this a response to Nuremberg? • The OLC was asked what interrogation techniques would violate US or International Law • What is the significance of going outside the Army manual?

8. The Torture Statute - 18 U.S.C.A. § 2340 (West) • 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

9. The OLC Definition of Torture • Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture . . . it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. • The OLC memorandum even concluded that torture might be justified in some circumstances.

10. What does the Convention on Torture Say about Exceptions? • . . . which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Art. 2, cl. 2, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85

11. The Significance of the OLC Memo • Does it matter what the International Court of Justice thinks? • What is the worst they can do? • Do you believe that is politically possible? • Did Pinochet ever get tried? • What laws are the OLC Memo aimed at?

12. Qualified Immunity • What is the standard for qualified immunity? • How would use the OLC memo in a qualified immunity defense? • Who would this help, i.e., who does the memo not protect? • But what does Iqbal tell us about getting to the high officials? • Did the lawyers implement the torture plans?

13. Military/Agency Discipline • Can the military still punish officers who violate the manual? • Can the CIA administratively sanction employees who engaged in torture, despite the OLC memo? • Why are neither going to happen, even with a change in administrations? • Would it matter if there were a universal belief that the OLC memo was bad law?

14. Abu Ghraib • Abu Ghraib is more about inhuman and degrading treatment than torture • Why was Abu Ghraib about the worst possible public relations problem for the US in war on terror? • How did it come to light? • How was it compartmentalized and handled by the military? • Sound like the Rodney King defense?

15. Bottom Line on Torture • Should it matter that the FBI, who knows more about interrogation for a longer period than any other agency, does not believe torture is an effective way to get information? • Does this destroy the "ticking bomb" rationale? • Even if there some benefit to torture, does its political consequences outweigh the benefit?

16. The OLC Lawyers • Are these memos appropriate lawyer work? • Are they competent lawyer work? • Are they ethical? • What is the role of the OLC? • Is it the same as a mafia lawyer? • Was it just stupid to write this stuff down? • What would you have done?

17. The Detainee Treatment Act • (a) In General.—No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. • (b) Construction.—Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. • (c) Limitation on Supersedure.—The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

18. DTA - What is prohibited • (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.— In this section, the term ‘‘cruel, inhuman, or degrading treatment or punishment’’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

19. Bush's Signing Statement • in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.

20. Constitutional Issues on Domestic Torture • Assuming that the information is not used for criminal prosecution, would torture violate the 5th amendment ban on self-incrimination? • Assuming it is not done as punishment, could you use the 8th amendment? • Remember material witnesses? • This still leaves you with your basic 5th amendment Bivens claim - death or injury without due process.