Legality of torture

[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.