Torture and Positive Law: Jurisprudence for the White House Jeremy Waldron

International Human Rights Article 7 of the International Covenant on Civil and Political Rights: No one shall be subjected to torture or to cruel and inhuman or degrading treatment or punishment.

Legal Definitions The Convention Against Torture requires legislatures and other state authorities to have an absolute and non-derogable (can’t be suspended in an emergency) ban on torture. Clear definitions are needed so that we know where the line has been crossed between tough interrogation and torture.

…”torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed…by public official…

Third Geneva Convention “[N]o physical or mental torture nor any form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatsoever.” Persons who are non-hostile and in custody shall be treated humanely and it is prohibited to commit violence to life and person, all kinds of mutilation, cruel treatment and torture, any humiliating and degrading treatment is also forbidden.

That makes it clear If torture and degrading treatment are forbidden by law, then what’s the problem? John Yoo says: These rules apply to some captives and not others. They do not apply to Al Qaeda and Taliban detainees. These rules apply to some captives and not others. They do not apply to Al Qaeda and Taliban detainees.

Yoo’s interpretation of the Geneva conventions involves a kind of reading which basically says: an act is permissable unless there is a law making it impermissable. Waldron says we must think of a law which forbids torture as reinforcing a moral prohibition against torture, not making something wrong that was right before.

Why Do We Need Clear Definitions in our Laws on Torture? We cannot use the “puke” test to determine what is torture and what is not. Meaning, the Covenant seems to assume that we all will “notice torture when we see it.” The scandal at Abu Ghraib indicates there is no consensus on what counts as torture.

Definitions are Good Definitional provisions allow lawyers to analyze torture as “elements of the offense.” In the Convention, the provisions analyze torture as a sort of action performed in a certain capacity, causing a certain sort of effect, done with a certain intent for a certain purpose.

Bright and Clear Definitions A bright and clear definition is needed for torture in the law because of the inclination of people to push against the law and reinterpret it. Think of a speeding law where people go the maximum speed they can without getting a ticket. Often this is 5 mile per hour above the posted speed limit.

Interrogators have an interest in being as coercive as possible and in being able to be able inflict as much pain as possible short of violating the prohibition on torture. On the other hand, interrogators can pressure suspects by legal means (imprisonment, longer sentences). So they need not use pain and suffering. Torture is a crime of specific intent. It is the use of pain to deliberately break the will of the suspect. Interrogators need clear definitions

Clear Lines of Definition Drawing a clear line is useful as a constraint on policymakers, soldiers, officials and those anticipating war crimes. A clear line between torture and non-torture can be misused, however. The Bush Administration tried to pin down the definition of torture so as to stipulate when the prohibition on torture kicks in. Much like the speeding law and normal citizens pushing right up against the law.

Jay Bybee, chief of the Office of Legal Counsel in the Department of Justice, wrote a memorandum on torture. He said that legal prohibitions on torture prevent only the most egregious conduct. The Convention Against Torture states that in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and unusual nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.

Bybee and Torture “Torture” should be reserved for practices like sustained systematic beatings, application of electric currents to sensitive parts of the body and tying up or hanging in positions that cause extreme pain. (348) Bybee concluded that some acts might be degrading, inhuman, cruel, and cause pain but not constitute ‘torture.’

Bybee and the Bush Administration are examples of how the definition of “torture” has been manipulated to achieve certain political and military ends. This type of legal maneuvering is representative of the view of positivism which separates out the moral content from the nature of law.

Legal Absolutes This controversy over the definition of torture brings up the idea of whether there are legal absolutes. One might say that changing definitions of offenses or reinterpreting open-ended phrases is part of the normal life of positive law. Why should the law relating to torture be any different?

Legal Absolutes Isn’t anything sacred in the nature of law? Can we just simply stipulate that the rules against torture don’t apply when the interrogations are authorized by the President? Isn’t this an assault on our legal system as it relates to torture?

Waldron says there are ways to protect the law from reinterpretation and changes which would erode their morality and justice. 1. Hart’s minimal content of natural law creates certain kinds of rules a legal system could not possibly do without. 2. One possibility rule might be entrenched in a constitution as proof against casual majority alteration (352) 3. A second possibility is to have international law have higher status so that treaty boundaries can’t be used to undermine and weaken it.

Protecting the law from Reinterpretiation 4. Human rights might be associated with an strict non-suspension clause to oppose the idea that it is acceptable to abandon them under certain circumstances. This raises the question as to whether one can prevent the law from being reinterpreted and manipulated when it comes to international human rights.

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