Torture has been getting a great deal of attention in the news over the past couple of months and the law is not black and white. With the public release of the Senate Select Committee on Intelligence’s report on the CIA (which can be read here), the question of exactly what constitutes "torture" has been a subject of great legal debate. There are strong voices on both sides of this issue (see Bob Cesca’s article Public Support for Torture is Exactly Why We Shouldn’t Torture).
With all of the discussion about the CIA's activities following the 9/11 attacks, it may be useful to share some of the legal history and legal definitions of torture in both American and international law.
The Geneva Conventions
After the atrocities committed against both civilians and prisoners of war during World War II, it became obvious that the rules of war had changed and it was necessary to write and enforce new rules regarding the treatment of POWs. With this in mind, world leaders negotiated and established a series of treaties on the treatment of civilians, prisoners of war, and soldiers who have been rendered incapable of fighting. These treaties are collectively called the Geneva Conventions of 1949.
While the Geneva Conventions do not specifically define the term “torture,” they do define the term “enemy combatant” and guarantee safety of mind and body during an enemy combatant’s detention. The Conventions define an enemy combatant as “a member of an organized armed force” and states that such enemy combatants may be captured and kept as prisoners of war.
The Geneva Conventions specifically describe the treatment to which prisoners of war may be subjected. Prisoners are guaranteed that there will be no violence to life or health and that they will not be subject to any “humiliating or degrading behavior.” The Conventions also discuss the “conditions of captivity.” Prisoners of war are guaranteed adequate food and clothing, housing similar to that of the detaining military, pay for any work done and access to the International Red Cross.
The United States signed the Geneva Conventions and all Protocols and went on to ratify the Conventions in 1955 and Protocol III in 2007.
Convention Against Torture (1984)
Moving beyond the confines of war, the United Nations Convention Against Torture went about defining torture in more definite terms. The Convention defined torture as intentionally causing any person physical or mental pain or suffering under any of the following circumstances:
To obtain information or confession from him or a third party.
To punish him for an act he or a third party committed or is suspected of committing.
To intimidate or coerce him or a third party.
The Convention also states that for an action to be defined as torture, it must be committed by, instigated by, or with the consent of, a public official or other person acting in the capacity of a public official. Significantly, the Convention states that the laws of countries that sign the Convention may be more strict than the Convention’s definition but not more lenient.
Under the Convention, all nations must take measures to guarantee that acts of torture are prevented within all territories in their possession. It also states that the prohibitions against torture are extended to any and all situations including war, political instability or any other public emergency. The Conventions also make it clear that orders from a superior officer are not a legal justification for torture. The United States ratified this treaty in 1994, seven years before the events of 9/11.
Title 18 US Code Part I Chapter 113C
Title 18 US Code Part I Chapter 113C is the only United States federal law that specifically addresses torture. These statutes define torture as "an act committed by a person with lawful authority to intentionally inflict severe mental or physical pain or suffering." That definition is similar to the one contained in the United Nations Convention Against Torture. While it assumes an understanding of the definition of severe physical pain or suffering, Section 2340 goes into specific detail as to what qualifies as severe mental pain or suffering:
Intentional or threatened administration or application of mind-altering substances or other procedures that may profoundly disrupt the senses or personality.
Threat of imminent death.
Intentional infliction or threatened infliction of severe physical pain or suffering.
Threat that any of the above will be committed on a third party if the tortured person does not cooperate.
It finishes by defining the United States as any of the fifty states, the District of Columbia, and the commonwealths, territories and possessions of the United States.
Points of Dispute
Interestingly enough, the real argument over whether the United States engaged in torture does not deal with the actions themselves (which seem to fall squarely under the definitions of torture set forth in all of the applicable laws), but rather rely upon technical defenses as to whether the laws regulating torture should even apply. The recent report on torture deals primarily with those people who were captured during the ongoing “War on Terror.” Many of these people are members or associates of Al-Qaeda and related organizations. Much of the argument has been on whether the laws and treaties set forth above even apply to these individuals, as some argue that these prisoners do not qualify as true “enemy combatants.” The Geneva Conventions define “enemy combatants” as members of a uniformed military. Many of the prisoners discussed in the CIA report belong to terrorist organizations, not uniformed militaries.
Even though the Geneva Conventions themselves apply the term “enemy combatants” to those "massed as a resistance to an occupying force," it has been argued that the members and groups discussed in the CIA report do not necessarily fall under this definition. This technicality has been used to justify such actions committed by the CIA and the U.S. military and to explain lengthy detentions without charges being filed.
Most of the laws in place do not limit the location of the actions when dealing with the definition of torture. However, the definition of torture within the U.S. Code does specify governance only over U.S. territories. In other words, it might be argued that the enemy combatants in the CIA report were not protected by U.S. laws prohibiting torture because those laws only govern territories which are subject to American law. United States jurisdiction has been challenged because the acts made public in the torture report occurred at “black sites” or extraterritorial locations located outside U.S. jurisdiction.
While most people can appreciate the sentiment that the United States should never engage in torture, that does not mean that anyone allegedly victimized has any actual legal recourse. The final legal ramifications of the recent Senate report have yet to be determined. Not surprisingly, the report has resulted in a flurry of legal action that may well take years to decide. While various courts have ruled on a number of cases which examine issues like the definition of enemy combatants and the jurisdiction of the federal government in non-US terrtories (see United States v. Passaro , Hamdan v. Rumsfield, and Lebron v. Rumsfeld), no definitive conclusions have been reached. As the legal battles of the War on Terror continue to develop, expect to see more discussion of the term "enemy combatants" and the issue of U.S. jurisdiction over non-U.S. territories. A final resolution is not likely until the U.S. Supreme Court finally agrees to rule upon these issues.