When is torture legal?

Dr. Bhogendra Sharma, president of the Centre for Victims of Torture, stands outside the group’s office in Katmandu, Nepal, in 2006. Groups like this one believe that freedom from torture is a human right.

Brian Sokol/AFP/Getty Images

By Josh Clark

Seated across from you in a darkened room is a man tied to a chair. The hum of dim fluorescent lights rings in your ears. The thick concrete walls that surround you won’t let in any sound — or let any out. Outside, two guards look the other way. You know that this man has information on a plot to kill innocent civilians. You’ve asked him repeatedly to tell you what he knows. How many lives could be saved if he gives you the information? Hundreds? Thousands?

So do you resort to torture to get this man to talk? Do you use one of the more prevalent forms of torture? Do you use the more subtle, psychologically damagingwhite torture? Do you hang him by his arms or threaten his family? If you’re obeying international law, then you choose none of these options.

But why? Because torture is illegal. Any kind of treatment that causes physical or mental pain, committed for any reason, is a violation of international law.

In 1984, the United Nations held a convention on torture and cruel, inhuman and degrading treatment (CID). What resulted was an international treaty signed by 74 countries, including the United States

. The Convention against Torture expressly forbids committing acts of torture and outsourcing torture to other countries where torturous methods are legal. It also established procedures for prosecuting anyone caught torturing another person

.

While the treaty forbids torture and regulates its practitioners, it doesn’t diminish the need to extract information. And there are few ways as useful as torture for undertaking such an effort. So is there such a thing as legal torture? That depends on how you view it.

Chilean president Gen. Augusto Pinochet, shown in state in Santiago in 2006, was tried in a British international court for genocide and torture in 2000. He was acquitted.

Claudio Pozo/AFP/Getty Images

The Legality of Torture

The Convention against Torture isn’t the only document that forbids nations and individuals from practicing torture. In 1949, the Geneva Convention also outlawed acts of torture toward prisoners of war

. The United States specifically outlaws any U.S. citizen from practicing torture in Title 18 of the U.S. legal code. Anyone who kills another person through torture can face the penalty of death

. The Army Field Manual allows some methods of interrogation — like attacking a detainee’s pride — but outlaws mental and physical torture and inhumane treatment, such as threats and beatings

. But what’s at stake when these guidelines aren’t followed?

Any political body engaged in interrogation that might be considered torture has a fine line to walk. On one hand, there’s the question of extracting information needed to save lives. But on the other hand is the basic human right that the U.N. Convention against Torturegrants to all people. If a military subordinate is considered to have crossed the line into torture, his or her leader could be prosecuted for war crimes. There’s no statute of limitations on deaths resulting from torture

. And military tribunals like that in The Hague, Netherlands, have an established “doctrine of command responsibility.” Essentially, this holds high-ranking officials responsible forwar crimes — including torture — that happen on their watch

. There’s also the consideration that a government that uses torture in effect condones torture to be used on its own people in the event that they’re captured by an enemy.

But do the torture laws that protect enemy combatants captured under the normal rules of war extend to terrorists? Immediately following the Sept. 11, 2001, attacks, the federal government began debating the standard rules of the Geneva Convention. In an interview in 2001, Vice President Dick Cheney said that the U.S. would use any means at its disposal in the war on terror

. And ultimately, the Bush administration concluded that the Geneva Convention didn’t apply to enemies in the War on Terror.

The Supreme Court disagreed, however, ruling that Common Article 3 of the Geneva Convention does apply to terror suspects — limiting the interrogation methods available to the United States

.

To consider how to get around these limitations, a group of American attorneys created a 100-page document, referred to as the “Rumsfeld memo” by the Washington Post, which questioned the broad view of torture under international law

. This document also suggests some defenses a torturer may take if prosecuted for torture. The group concluded that the executive authority granted to the president of the United States and his role as commander in chief of the armed forces grants him wide powers that supersede international and domestic laws concerning torture.

Essentially, the document proposes that the president can order suspects be interrogated using methods currently considered torture in international law. Furthermore, anyone following orders to use those methods would be immune from legal proceedings. The group also laid out defenses in case charges were ever brought against anyone following these orders. Among them was a “good faith” defense, which says that the torturer was told beforehand that the act did not constitute torture

.

This has yet to be vetted by any court, international or otherwise.

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