Right Thinking From The Left Coast
"To what purpose are powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803

Wednesday, June 25, 2008

The Law, In Black and White
by Lee

Thrill loves “original documents” in his comments.  So, let’s look at one:  The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the US is a signatory. Below are the main parts of the document.

Article 1

1. For the purposes of this Convention, the term “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.

It’s right there in black and white, the definition of torture to which we are accountable as a signatory:  “[A]ny 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…” Stress positions, waterboarding, sleep deprivation, induced hypothermia, these all clearly fall under this definition.

“[W]hen 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.” Note that this doesn’t require a signed authorization, only with the “consent or acquiescence” of those in power.  From the Oxford English Dictionary:

Consent
verb [ intrans. ]
give permission for something to happen : he consented to a search by a detective.

Acquiesce
verb [ intrans. ]
accept something reluctantly but without protest : Sara acquiesced in his decision.

So, clearly, the administration and Congress both consented and acquiesced in these activities.

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

In other words, signatory nations can pass laws which are more stringent prohibitions against torture than the ones detailed in this document, but they cannot pass ones which permit lesser behavior.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

I have a very hard time believing that a US military base does not, in the spirit intended here, constitute “territory under its jurisdiction.”

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

Thus the whole “this is a new kind of war with a new kind of enemy” argument gets completely blown to shit.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Do I really need to elaborate on this?

Article 3

1. 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.

Not only did we do this, we intentionally sent people to these states for the specific purpose of torture.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Well, we sure dropped the ball on this one recently, didn’t we?

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

Interesting.  So we can’t torture someone on a US Navy ship, but we can torture them on a US Navy base.

Now, as with all signatory nations they included a signing statement declaring their interpretation of that law.  Let’s look at the declarations and reservations by the United States.

Posted by Lee on 06/25/08 at 03:07 AM in Politics, Law, & Economics  • (19) Comments • (0) Trackbacks • Permalink • Discuss this in the forums
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