Torture or Not, It’s Illegal and Wrong

SOURCE: AP/Susan Walsh

John Yoo testifies on Capitol Hill in Washington last year. Yoo, former Vice President Dick Cheney, and federal appeals court judge Jay Bybee continue to defend interrogation tactics used by the Bush administration, saying they were not torture.

By William F. Schulz | May 14, 2009

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Former Vice President Dick Cheney has called President Barack Obama a “creamsicle” who is unable to keep America safe because of his rejection of torture. The Philadelphia Inquirer has retained John Yoo, President George W. Bush’s most outspoken rationalizer of torture, to write a monthly column in order to instill ideological balance to that paper’s editorial page. And federal appeals court judge Jay Bybee, who as head of the Office of Legal Counsel under Bush issued the memorandums authorizing the use of coercive interrogation techniques against detainees, recently reiterated his confidence in his previous legal judgment. Those memorandums, he told a reporter, represent “‘a good-faith analysis of the law’ that properly defined the thin line between harsh treatment and torture.”

One might think that these three stewards of brutality would want to keep a low profile, but they apparently feel no regret at their actions in part, no doubt, because of the false distinction between “harsh treatment” and “torture” that Bybee’s comment reflects and that the Bush administration perpetrated for years.

Cheney, Yoo, and Bybee notoriously tried to delineate the line beyond which the treatment of prisoners shaded into torture. They did so by relying upon the ambiguity contained in the word “severe” in the definition of torture from the Convention Against Torture, or CAT, which the United States ratified in 1994. In that convention torture is described as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

There is no question, of course, that what one person considers severely painful another might regard as merely tough to bear. Pain thresholds vary from person to person. But the title of the CAT treaty does not stop with the word “torture.” The full title prohibits “other cruel, inhuman, and degrading treatment or punishment” as well.

Could even Cheney argue that forcing someone to feel as if they were drowning was not cruel or that stripping prisoners naked was not degrading? Indeed, wasn’t the whole point of such treatment to make prisoners feel less than human in order to break down their emotional defenses and open up their mouths?

In a famous 1978 case before the European Court of Human Rights, the court ruled that five techniques—wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink—employed by the British against prisoners in Northern Ireland “did not occasion suffering of the particular intensity and cruelty implied by the word torture [but] amounted to a practice of inhuman and degrading treatment” in breach of the European Convention on Human Rights and so were still illegal.

When The United States ratified CAT, it took a so-called reservation to its obligation to prevent cruel, inhuman, and degrading treatment or punishment, indicating that it would do so only insofar as such treatment was “prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” But in its 2000 report to the United Nations on its implementation of CAT, the United States, citing Eighth Amendment jurisprudence, acknowledged that “cruel and unusual punishment” included that which was “uncivilized, fail[ed] to comport with human dignity,” and was “without penological justification.” In what context could confining a prisoner in a “cramped…box” with an (allegedly) stinging insect not be construed as cruel under those criteria?

When President George W. Bush claimed that the United States “did not torture,” as he did on many occasions, he pointedly ignored the equally serious prohibitions on cruel, inhuman, and degrading treatment. Defining a practice as “torture” carries heavy emotional weight. But debating whether water boarding and its cousinly interrogation techniques were torture or “merely” harsh treatment ignores the fundamental fact that they were undeniably cruel, inhuman, and degrading and that that kind of treatment is just as illegal (and just as morally indefensible) as torture.

The important question before us now, no matter what we call these abhorrent practices, is how to insure they never are utilized again.

William F. Schulz is Senior Fellow in human rights policy at the Center for American Progress and former executive director of Amnesty International USA.