Another great analysis by Andy McCarthy (prosecutor of the 1993 Trade Center bombers):
http://article.nationalreview.com/33...rew-c-mccarthy
Salient points are that the US Constitutional challenges to torture with which everyone (in the US) agrees are to the 5th, 8th, and 14th Amendments. They apply only to people within the US judicial system, basically. Cruel and unusual
punishment applies to what is meted out
after a trial.
Quote:
TORTURE AND “CID” UNDER OTHER AMERICAN AND INTERNATIONAL LAW
Still, torture and other forms of cruel, inhuman, and degrading treatment are prohibited under international law — in particular, under several human-rights treaties ratified by the United States. Under the supremacy clause, treaties are “the supreme Law of the Land.” With that understanding, it might be said that the Constitution speaks to torture. Nevertheless, had the unadorned Constitution prohibited torture, these treaties, as well as various anti-torture statutes enacted since 1994, would have been superfluous.
The Geneva Conventions prohibit torture but not in all circumstances. Recognizing that, human-rights activists pushed for the International Convention on Civil and Political Rights (ICCPR) and the U.N. Convention Against Torture and Cruel, Inhuman and Degrading Treatments (UNCAT), which were ratified by the U.S. in 1992 and 1994, respectively. Both forbid torture, and the UNCAT called for the passage of anti-torture legislation, which Congress promptly enacted.
Further, both the ICCPR and the UNCAT prohibit cruel, inhuman and degrading treatment (CID). Here, however, there is an important qualification. In consenting to both treaties, the Senate added a caveat: CID was to be understood in the U.S. as the cruel, inhuman and degrading treatment prohibited under the aforementioned Fifth, Eighth, and Fourteenth Amendments. That is, CID would be controlled by governing American constitutional law — not what activist NGOs, international law professors, and foreign regimes decided terms like “degrading treatment” might mean.
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Since waterboarding (what we are really discussing here, nothing else the US has done is even
close to torture) does no real physical harm, we are limited to mental pain and suffering.
As McCarthy says:
Quote:
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With respect to mental pain or suffering, Section 2340 does tell us that severe “means prolonged mental harm” (emphasis added). It also provides examples of the type of prolonged behavior that is prohibited: inflicting or threatening to inflict severe pain or suffering; using or threatening to use mind-altering drugs; threatening imminent death; or threatening that a third person (say, a family member) of the victim will be subjected to equivalent cruelties.
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Still unclear.
He goes on to point out that while WE, the public at large do not know the actual details of the
exact techniques used (there are many slight variations of the technique), members of the US Congress do know, and while they've passed laws regarding treatment of detainees, they could have—and did not—mention this particular technique specifically. Knowing this was the worst we've done, had Congress meant to, they could easily have done so. Note that this are Democrat controlled Congresses, or Rep controlled, but Dems have filibuster, and therefore any bill must be acceptable to them (Bush didn't have a supermajority like the dems had until a couple months ago).
It's a complex issue.
Personally, I'd reserve the harshest techniques (with the caveat that they are demonstrably effective, and not merely punitive) for critical cases where it might reasonably result in actionable intelligence that could prevent a major attack—this is not to be taken lightly. Note that all the while, the technique in and of itself should still be legal according the vague laws already in place. If two reasonable people can disagree about where the line is, then it's still OK, in other words.