Legality of torture

The South Park - thread led me to think about the definitions behind torture and the legality of it. Allegations have been made that torture is allowed in a war situation. There often is no governing body to oversee that no torture takes place in war situations making these torture bans pretty useless.

The Geneva Convention has been mentioned and that it allows certain torture methods while not allowing others. Individual countries may have even stricter laws prohibiting torture and I think Finland's laws are pretty strict when it comes to torture and general mistreatment of prisoners. The idea of looking for loop holes in a law that bans the use of torture makes me wonder if a country that actively does that and uses torture really would qualify as a western civilized nation.

Questions: What is torture, is prison (the taking away of freedom of movement) torture in itself? Is water torture torture or is it just 'mild' torture? The US has allowed the use of water torture until it was banned recently, is the ban working? How does the public know if torture is being used or not? How do we know what forms of torture have been used by the US and other nations?

[UnderseaLcpl]

Torture: I would define it as cruel and unusual punishment. How you define that is something else again. In Iraq I used to see the intel guys incarcerating suspects in big metal cargo containers, which get very hot with it being the desert and all. Then some poor schmuck had to walk around the thing for hours on end dragging a metal tube along the corrugated edges of the container to make noise. The idea was to deprive the prisoner of sleep. They'd haul him out at random intervals to question him or just leave him sitting on a stool until he started to fall asleep again, then bust in and put him back in the box. The Soviets employed that same technique (sleep deprivation) at the Lubyanka, albeit in a different manner and setting.

Is that torture? To some degree, yes. Sleep deprivation sucks, I'd know. I spent 3 days and nights without sleep when I went through the Crucible in boot camp, and walked about a hundred miles in full kit and did O-courses and all kinds of other assorted BS while I was at it. But they didn't call it torture, they called it training. I figure if it's good enough for US military recruits it's good enough for terror suspects who are not US citizens and who are non-uniformed combatants.

Black's Law Dictionary defines torture as " the intentional infliction of severe pain or suffering, whether physical or mental." Now we just need to define "severe" "pain" and "suffering". Surprise surprise, there is no concrete definition for any of those terms in the legal sense. Even within the normal US legal system, the standards for each vary widely. Sometimes people get shot or stabbed and it doesn't constitute "torture". Other times people are annoyed by the sound of children playing and it does. It all depends on the case made for each term and the interpretation of the judge and/or jury.

To me, torture would be the intentional infliction of permanent, demonstrable, physical harm in a controlled environment against a defenseless party for whatever purpose. That's a pretty narrow definition, but it is a lot more functional than any definition that includes mental harm, which is extremely difficult to quantify. There are certainly forms of torture that can inflict permanent mental harm, but they are so varied and indefineable as to be rendered meaningless.

Is prison torture?
In my definition; no. Spending time in prison probably does cause mental harm, and it is certainly an infliction of harm in a controlled environment for a purpose, but considering it as torture is impractical. The Geneva convention does not ban POW camps, and every nation on the planet has some kind of prison.

Prison is supposed to serve both as a punishment and as a way to nullify any potential harm criminals can do. IMO, if you've violated another person's rights, whether it be through theft or murder or rape or what have you, you forfeit your own rights. When it comes to prison, the degree of forfeiture of rights that is appropriate is the real question, and it is just as nebulous as the definition of mental harm. Again, the power resides in the courts, and again, non-unifromed combatants have no protection under either the US justice system or the Geneva convention, though there are exceptions made for militias.

Is water torture torture or is it just 'mild' torture?

I'd be hesitant to classify it as "torture". To be sure, waterboarding is very uncomfortable and it can be deadly if performed incorrectly or if an accident occurs, but so is swim qual. Which is more cruel, to simulate drowning without the intent to drown or to throw a recruit off a 20-ft diving board in full gear whether he knows how to swim or not, and then rely on resuce divers to save him if he sinks?

I put waterboarding in the same class as sleep-deprivation, but I would never advocate it. It seems a rather crude means of extracting information. You'd think intel would come up with something more clever than that.

Is the ban working?
I wouldn't know. The last guy I knew who was in intel left the service earlier this year, and I never really asked him much about it after OIF III.
My guess is that it is working, as brass tend to be very sensitive about these things. If Washington says no, they won't do it, no matter what the ramifications if ROE-related deaths and injuries are any indication.

How does the public know if torture is being used or not?

In my experience? The media. They're almost as thick as the flies in Al-Anbar (or at least they were when I was there) and I had to drive correspondents to the Fallujah detention center on several occasions. I don't know if they ever got in there. They didn't let me in, and I was absolutley forbidden to talk to any journalists.

The military generally tries to keep a tight rein on what info it gives the press, same as any firm. They prefer to handle journalists through officers and PR guys. Given the military's success performing even peacetime tasks, my guess is that they have been, and will continue to be, less than successful.

How do we know what forms of torture have been used by the US?
I have no up-to-date information on that subject, but I'm sure that any torture used is fairly mild. The stuff they did at Guantanamo was child's play, and nobody was concerned about torture when they did that. Stacked naked in a pyramid? Please. Try being crammed into a single toilet stall with 40 other naked recruits. Believe it or not, they will fit.

I can only draw conclusions from how I have seen other PR matters handled. When the media started reporting on US troops using excessive force on Iraqi civilians way back in '05, we recieved a corresponding increase in ridiculous ROEs; i.e. "you can't shoot at anyone who isn't firing at you", "no HMGs", "no AP rounds", "no grenades, even flash-bangs", "every target must have confirmed Positive Identification".... and all that BS. Field-Grade Officers' careers depend upon good public image and shiny records. They take every pain to make sure that they do not do anything to sabatoge their careers. Well, some aren't like that, but I've never met one.


and other nations?

Hell if I know. Units from other nations are usually under a totally different command structure in a totally seperate base and we were never allowed to even communicate with their higher-ups. They may have had a different way of doing things, but I don't know what it was.


All of this is just my perspective from the ground, but I hope at least some of it can help, OTH.

Thank's for the insights UnderseaLcpl, good to hear first hand accounts.

Can't say I really enjoy hearing about sleep deprivation and keeping detainees in hot metal containers. Reminds me of the 'convoy of death' in Afghanistan which may or may not have been as bad as the legend has it.

Yes I don't know, it's difficult for one person in a military to improve things, usually a foot soldier is just a pawn and has very little influence on operating procedures. I guess a group of individual soldiers might be responsible for the mistreatment of a prisoner or two but usually the orders come from the higher ups. Meaning that the individual soldiers can be guilty like Lynndie England but that the real culprits are the higher ups.

There were mistreatment of POW's in WW2 Finland, many prisoners died of starvation and/or diseases so we don't have a high horse in this issue. Lately we've kept out of wars meaning we haven't been put into a position where we would have to either torture or not torture.

And about water torture, I'd call it torture, real torture with no reservations. It's very dangerous if we start to talk about water torture as 'torture lite'. Also the risk of death/trauma both physical and mental is very big in water torture so I see no reason to belittle it. And yes, during basic training and military service there is all kinds of stuff that would qualify as mistreatment or torture. Militaries of the world get away with a lot.

[tater]

Note that under US law, any mind altering substance is under the torture laws on the books.

This is a mistake, IMO, since if there is, or might be at some point in the future a really good drug that removes trained inhibitions to answering questions, it would be a remarkable tool—also a tool that would help those detained.

Think about it, you have an excellent drug available, and you use it on a detainee, and it becomes clear that you grabbed the wrong guy. He's got nothing to tell you, and in fact it's becoming clear he's not stonewalling, just INNOCENT. You can let him go.

Note this would require a drug that is safe to administer (under medical attention), and has no lasting effects.

[TBoone]

I think that the Geneva convention should not aply to terorists simply because TERORISTS ARE NOT SOLDIERS THEY ARE BISICALY JUST LOWDOWN F*CKS THAT WOULD DIE TRYING TO KILL INOSENT PEOPLE!!!
SOLDIERS ON THE OTHER HAND ARE HEROES THAT PROTECT PEOPLES RIGHTS AND WOULD DIE TRYING TO SAVE OTHER PEOPLES LIVES!!! That ANY Torture should be used to get terorists to disclose any information they may have in there TINY SEMI-FUNCTIONING MINDS!!!

The truth serum, not sure if that's actually realistically achievable. If they came up with something there would be ways to go around it. Doubt it will happen.

But by keeping the door open for a 'magical truth serum' of the future would also keep the door open for all other stuff that they'd be allowed to inject into the POW's.

Originally Posted by TBoone

I think that the Geneva convention should not aply to terorists simply because TERORISTS ARE NOT SOLDIERS THEY ARE BISICALY JUST LOWDOWN F*CKS THAT WOULD DIE TRYING TO KILL INOSENT PEOPLE!!!
SOLDIERS ON THE OTHER HAND ARE HEROES THAT PROTECT PEOPLES RIGHTS AND WOULD DIE TRYING TO SAVE OTHER PEOPLES LIVES!!! That ANY Torture should be used to get terorists to disclose any information they may have in there TINY SEMI-FUNCTIONING MINDS!!!

Be very careful here because, if someone in your government decides that you MAY have ties to terrorists, you qualify for torture, under your own rules. And so does every one of your fellow countrymen.

Originally Posted by OneToughHerring

The truth serum, not sure if that's actually realistically achievable. If they came up with something there would be ways to go around it. Doubt it will happen.

But by keeping the door open for a 'magical truth serum' of the future would also keep the door open for all other stuff that they'd be allowed to inject into the POW's.

Very good point. Especialy considering the CIA's involvement with LSD experimentation on their own soldiers and civilians, in addition to foreign nationals.

[TLAM Strike]

Originally Posted by TBoone

I think that the Geneva convention should not aply to terorists simply because TERORISTS ARE NOT SOLDIERS THEY ARE BISICALY JUST LOWDOWN F*CKS THAT WOULD DIE TRYING TO KILL INOSENT PEOPLE!!!
SOLDIERS ON THE OTHER HAND ARE HEROES THAT PROTECT PEOPLES RIGHTS AND WOULD DIE TRYING TO SAVE OTHER PEOPLES LIVES!!! That ANY Torture should be used to get terorists to disclose any information they may have in there TINY SEMI-FUNCTIONING MINDS!!!

There was a time not so long ago when in this country men without uniforms when around killing both uniformed military troops and civilians. They violated the rules of war and were in fact committing treason against their country.

These "Terrorists" were lead by men with the names of Washington, Gates and Jones.

I'm very careful about who I paint with the wide brush of "Terrorist". The people we torture today maybe become the heroes of a future nation, and how will that nation look at us?

[TBoone]

I'm just saying that the Geneva Convention should only aply to actual Soldiers not these Murderers we call Terorists.

[TLAM Strike]

Originally Posted by TBoone

I'm just saying that the Geneva Convention should only aply to actual Soldiers not these Murderers we call Terorists.

The North Vietnamese used the same logic to torture US POWs.

[tater]

Originally Posted by OneToughHerring

The truth serum, not sure if that's actually realistically achievable. If they came up with something there would be ways to go around it. Doubt it will happen.

But by keeping the door open for a 'magical truth serum' of the future would also keep the door open for all other stuff that they'd be allowed to inject into the POW's.

There is no "truth serum," though many drugs used for anesthesia produce effects that can absolutely reduce barriers. Talk to anyone who works in an OR, and they'll tell you all kinds of funny stories about patients talking about inappropriate stuff.

[Platapus]

Originally Posted by OneToughHerring

Questions: What is torture, is prison (the taking away of freedom of movement) torture in itself? Is water torture torture or is it just 'mild' torture? The US has allowed the use of water torture until it was banned recently, is the ban working? How does the public know if torture is being used or not? How do we know what forms of torture have been used by the US and other nations?

This is a very good question.

First of all, the Geneva Conventions are only one, albeit, minor source for rules on torture.

Let's start with an international agreement

The United Nation's Convention against Torture and Other Cruel, Inhuman, or degrading treatment or Punishment.

http://www.hrweb.org/legal/cat.html

The United States signed this convention on 18 Apr 1988 and the Senate ratified it on 21 Oct 1994, thereby under the Veninna convention addressing treaty of laws, it is legally binding on the United States. It is also legally binding on the United States because of Article VI of our Constitution.

You asked what constitutes Torture. Well one definition is contained in the Convention

For the purposes of this Convention, 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 a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

A moments review of this should show that there are plenty of loopholes in the interpretation of this definition (welcome to the wonderful world of treaties)

A second question asked by the original poster was whether torture could be authorized in war time. The quick answer is no, the official answer is in Article II of the convention

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

I will add another question and answer it. Can a State send a person to another country where they can be tortured? No

Article 3

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

As you can read, plenty of weasel words. Again welcome to the wonderful world of treaty analysis.

The convention requires all signatory states to enact legislation criminalizing torture.

For the United States, this is addressed under Title 18, Part I Chapter 113c sections 2340, 2340A, and 2340B

2340

torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

2340A

Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy

2340B

Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.

I hoped this answered your first question. Your other questions about how can the public have faith at their government is following its own laws are much more difficult to answer, I am afraid.

[tater]

Originally Posted by TLAM Strike

The North Vietnamese used the same logic to torture US POWs.

Read the GC, the language clearly implies reciprocity among signers and their allies/client states.

Otherwise there would not be so much language to determine if the person in question falls into the category of someone protected.

That said, I'm fine with staying on the "good" side of things—but as close to the edge as is legally possible assuming it is effective. That means a gnat's hair to one side of "severe" as defined in the GC, etc. Note that even the expanded definitions posted above merely add "prolonged" to the list of mental pain. There is nothing at all definitive there.

Remember that during the Bush administration they were bashed for having THIS discussion we're having right now. Just talking about where the limits might be was reported as dangerous and wrong. Given the intentionally vague language, not having this discussion would have been irresponsible, IMHO.

[antikristuseke]

Originally Posted by TBoone

I think that the Geneva convention should not aply to terorists simply because TERORISTS ARE NOT SOLDIERS THEY ARE BISICALY JUST LOWDOWN F*CKS THAT WOULD DIE TRYING TO KILL INOSENT PEOPLE!!!
SOLDIERS ON THE OTHER HAND ARE HEROES THAT PROTECT PEOPLES RIGHTS AND WOULD DIE TRYING TO SAVE OTHER PEOPLES LIVES!!! That ANY Torture should be used to get terorists to disclose any information they may have in there TINY SEMI-FUNCTIONING MINDS!!!

It must be nice to live in a black and white world.
Life just is not that simple, by my experiences.