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No Torture, No Prosecution

JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says that even the worst of the authorized CIA interrogation techniques do not constitute torture by established international legal standards and therefore their authorization does not warrant prosecution...

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Allegations of torture roll off the tongue with ease. In the context of American interrogation practices and treatment of both terrorist detainees and enemy combatant detainees, false allegations of ?torture? have been regularly raised by a wide variety of individuals and interest groups, the latest round of concern being the recently released Bush Department of Justice ?CIA? memorandums. In short, if the memos authorized techniques which constitute torture, then the rule of law is absolute ? those who approved, those who authorized, and those who committed the acts must be prosecuted in a court of law. On the other hand, if the interrogation practices authorized did not constitute torture, then there is no need to prosecute (or to engage in the endless political grandstanding).

Recognizing that not every alleged incident of mistreatment necessarily satisfies the legal definition of torture, it is imperative that one view such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent. In this manner, claims of illegal interrogation practices can be properly measured as falling above or below a particular legal threshold. Only then can one hope to set aside the worn-out rhetoric by such groups as Amnesty International, who call the Guantanamo detention facility the ?gulag of our time.?

The 1984 United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) is the primary international agreement governing torture and lesser forms of coercion known as ?ill-treatment.? All nations must abide by the provisions and prosecute anyone who ordered or carried out torture. Article 2 of the Torture Convention absolutely excludes the notion of exceptional circumstances to serve as an excuse to the prohibition of torture. ?No 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 for torture.?

Nevertheless, the accused on trial for torture is certainly able to argue the common law doctrine of ?necessity? at his trial ? the defendant committed an evil (torture) to prevent a greater evil (mass murder). If the jury accepts this defense, the defendant will be found not guilty.

According to the Torture Convention, for torture to exist the following criteria must be present: (1) the act must be intentional; (2) it must be performed by a State agent; (3) the act must cause severe pain or suffering to body or mind; and (4) it must be accomplished with the intent to gain information or a confession.

In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining ?severe pain or suffering? in the context of interrogation practices comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote, the Ireland court found certain interrogation practices of British authorities to interrogate suspected terrorism in Northern Ireland to be ?inhuman and degrading,? i.e., ill-treatment, but not severe enough to rise to the level of torture. According to the Court, the finding of ill-treatment rather than torture ?derives principally from a difference in the intensity of the suffering inflicted.? In Ireland, the Court considered the use of five investigative measures known as ?the five techniques? which were practiced by British authorities for periods of ?four or five? days pending or during interrogation sessions.

• Wall-standing: Forcing the detainee to stand for some period of hours in a stress position described as ?spread-eagled against the wall, with their fingers put high above their head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.? Wall-standing was practiced for up to 30 hours with occasional periods for rest.

• Hooding: Placing a dark hood over the head of the detainee and keeping it on for prolonged periods of time.

• Subjection to noise: Holding the detainee in a room where there was a continuous loud and hissing noise.

• Deprivation of Sleep: Depriving detainee of sleep for prolonged periods of time.

• Deprivation of Food and Drink: Reducing the food and drink to suspects pending interrogations.

Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized ? waterboarding - would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary?s University School of Law, San Antonio, Texas. He has served as an expert advisor to government on the military commissions process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces.

Full post as published by JURIST - Forum on May 08, 2009 (boomark / email).