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No Torture, No Prosecution

JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says that even the worst of the authorized CIA interrogation techniques do not constitute torture by established international legal standards and therefore their authorization does not warrant prosecution...

Allegations of torture roll off the tongue with ease. In the context of American interrogation practices and treatment of both terrorist detainees and enemy combatant detainees, false allegations of “torture” have been regularly raised by a wide variety of individuals and interest groups, the latest round of concern being the recently released Bush Department of Justice “CIA” memorandums. In short, if the memos authorized techniques which constitute torture, then the rule of law is absolute – those who approved, those who authorized, and those who committed the acts must be prosecuted in a court of law. On the other hand, if the interrogation practices authorized did not constitute torture, then there is no need to prosecute (or to engage in the endless political grandstanding).

Recognizing that not every alleged incident of mistreatment necessarily satisfies the legal definition of torture, it is imperative that one view such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent. In this manner, claims of illegal interrogation practices can be properly measured as falling above or below a particular legal threshold. Only then can one hope to set aside the worn-out rhetoric by such groups as Amnesty International, who call the Guantanamo detention facility the “gulag of our time.”

The 1984 United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) is the primary international agreement governing torture and lesser forms of coercion known as “ill-treatment.” All nations must abide by the provisions and prosecute anyone who ordered or carried out torture. Article 2 of the Torture Convention absolutely excludes the notion of exceptional circumstances to serve as an excuse to the prohibition of torture. “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

Nevertheless, the accused on trial for torture is certainly able to argue the common law doctrine of “necessity” at his trial – the defendant committed an evil (torture) to prevent a greater evil (mass murder). If the jury accepts this defense, the defendant will be found not guilty.

According to the Torture Convention, for torture to exist the following criteria must be present: (1) the act must be intentional; (2) it must be performed by a State agent; (3) the act must cause severe pain or suffering to body or mind; and (4) it must be accomplished with the intent to gain information or a confession.

In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining “severe pain or suffering” in the context of interrogation practices comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote, the Ireland court found certain interrogation practices of British authorities to interrogate suspected terrorism in Northern Ireland to be “inhuman and degrading,” i.e., ill-treatment, but not severe enough to rise to the level of torture. According to the Court, the finding of ill-treatment rather than torture “derives principally from a difference in the intensity of the suffering inflicted.” In Ireland, the Court considered the use of five investigative measures known as “the five techniques” which were practiced by British authorities for periods of “four or five” days pending or during interrogation sessions.
  • Wall-standing: Forcing the detainee to stand for some period of hours in a stress position described as “spread-eagled against the wall, with their fingers put high above their head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.” Wall-standing was practiced for up to 30 hours with occasional periods for rest.

  • Hooding: Placing a dark hood over the head of the detainee and keeping it on for prolonged periods of time.

  • Subjection to noise: Holding the detainee in a room where there was a continuous loud and hissing noise.

  • Deprivation of Sleep: Depriving detainee of sleep for prolonged periods of time.

  • Deprivation of Food and Drink: Reducing the food and drink to suspects pending interrogations.
Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding - would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary’s University School of Law, San Antonio, Texas. He has served as an expert advisor to government on the military commissions process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces.

May 08, 2009

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"Considering the level of interrogation standards set out in the Ireland case [wall standing; hooding; noise; sleep, food and drink deprivation], the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding - would not constitute torture."Is this a joke? How can such a superficial and wrong statement make it onto Jurist?! Even if one applies the Ireland case standard, the methods depicted in the torture memos are NOT comparable to wall standing, hooding, noise etc. Waterboarding for instance puts the victim under an immediate threat of suffocating and hence dieing.

"The CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival."Really! Well dingdong, those were fake tests for educational purposes, not serious! Was that realy done "hundreds and hundreds" of times? The very same techniques? How did the agents feel about this being done to them hundreds of times?

What a lame, lame, lame case you have, Mr Addicott, who are you trying to fool?

May 08, 2009  

Maybe Mr. Addicott hasn't read the testimony of Malcolm Nance, a 20-year Navy veteran and former SERE instructor, who told Congress:
>>The SERE community was designed over 50 years ago to show that, as a torture instrument, waterboarding is a terrifying, painful, and humiliating tool that leaves no physical scars and which can be repeatedly used as an intimidation tool. Waterboarding has the ability to make a subject answer any question with a truth, a half-truth, or an outright lie in order to stop the procedure. Subjects usually resort to all three, often in rapid sequence.

Most media representations or recreations of waterboarding are inaccurate, amateurish, and dangerous improvisations which do not capture the true intensity of the act. Contrary to popular opinion, it is not a simulation of drowning. It is drowning. In my case, the technique was so fast and professional that I didn't know what was happening until the water entered my nose and throat. It pushes don into the trachea and starts to process a respiratory degradation. It is an overwhelming experience that induces horror, triggers a frantic survival instinct. As the event unfolded, I was fully conscious of what was happening: I was being tortured.

May 08, 2009  

There may be principled and even compelling arguments that support Professor Addicott's opinion, but they are not in evidence in the editorial. His conclusion is both abrupt and unpersuasive.

May 08, 2009  

If waterboarding was torture, we would not use it to train our armed forces with it. It would not be allowed. Does anyone out there know the words "Common sense" or "What is reasonable?" This is, at the most, temporary physical discomfort.(not torture)It is more of a psychological tool to extract information. P.S. It works! Ask Kalief Sheik Mohammad.(Terrorist) Oh, and by the way, it has saved possibly thousands of lives.

May 08, 2009  

The last time we saw Professor Jeffrey Addicott on the Jurist Forum on October 6, 2006, he was carrying water for the Bush administration with his Op-ed piece entitled "The Military Commissions Act: Congress Commits to the War on Terror." The little bio-squib at the bottom of that flawed essay didn't identify Addicott back then as "an expert advisor to government on the military commissions process" as does the current mini-bio. Maybe Professor Addicott is hoping for an appointment to the Justice Department's Office of Legal Counsel if the Bushies ever get back into the White House.

Even retired General Barry McCaffrey states that the United States probably murdered dozens of detainees during the course of torturing them. It's not a matter of "probably." U.S. government documents indicate a couple of dozen detainees were tortured to death. Human rights organizations put the number at about a hundred detainees killed.

Since there's always some troll out there who claims nothing of the kind ever happened, here some information about two detainees who were tortured to death: Mark Swanner was a CIA interrogator who, along with others, killed Manadel al-Jamadi on November 4, 2003 at Abu Ghraib prison. Many people have seen the pictures of Army Specialists Charles Graner and Sabrina Harmon posing over al-Jamadi's iced corpse. Army Chief Warrant Officer Lewis Welshover smothered Iraqi Major General Abed Hamed Mowhoush to death on November 23, 2003 at the al-Qaim detention center.

It's true that the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 tried to grant a level of immunity to those who abused detainees or otherwise violated the federal War Crimes Act. But the federal torture statutes found at 18 U.S.C. 2340 and 2340A have not been diluted. They exist in "in pari materia" with other federal law, including the Geneva Conventions and the Convention Against Torture. Read together, these integral provisions of U.S. federal law clearly prohibit any activity against prisoners that is even rising, but not reaching, the level of torture.

Jeffrey Addicott and his ilk can whine all they want that what was authorized and done to some of these detainees did not rise to the level of torture. The corpses of the detainees tell a different story. The penalty for a torturer when a victim dies is death under the federal torture statutes. For those who engage in a torture conspiracy, when a victim has died, the penalty is life in prison. Look it up -- even though people such as Jeffrey Addicott would rather most Americans remained ignorant of that fact.

Nicholas Miller Jackson, J.D., LL.M.
Florida Bar Member No. 167983

May 08, 2009  

I normally pride myself on giving serious consideration even to opinions I strongly disagree with, but that habit is sorely tried by the above piece. In fact I am nothing short of aghast that an actual law professor could write such a thing.

First of all, the treatment that the CIA is credibly alleged to have meted out goes well beyond the techniques of "ill-treatment" listed in the Ireland case. None of those techniques could plausibly be regarded as a threat of imminent death. By contrast, even the Bush Administration OLC acknowledged that waterboarding did constitute such a threat. (Bybee memo to J.Rizzo, p.15) Furthermore, the techniques in the Ireland case were employed only over a period of a few days, while the CIA appears to have used its own "special methods" for months on some prisoners. In short, the differences are so great that the comparison is utterly specious.

As for the comparison to training exercises that some U.S. troops undergo, I would point out that those exercises do not pertain simply to "escape and survival." Rather, they are specifically designed to give a taste of the torture that the troops might experience if captured. And I very much doubt that any one individual was ever waterboarded more than a hundred times as part of this training program, as is reported to have been done to at least one detainee.

Mr. Addicott's poor reasoning is compounded by an astounding lapse of legal research. The Convention Against Torture does not define torture in a way that requires it be done with the intent of gaining "information or a confession." The text of the convention may be found at Article 1 defines torture, and merely says it must be inflicted for "such purposes as" [emphasis added] gaining information, imposing punishment, producing intimidation, etc. U.S. Code Title 18.2340, meanwhile, defines torture in such a way that says nothing at all about the purposes for which it is done.

Finally, I am deeply puzzled by his claim that "necessity" could be a valid defense to a charge of torture. If the plain language of the Convention does not rule that out, I am not sure what would. It seems rather clear to me that no judge should permit a "necessity" defense to even go to the jury. Does Mr. Addicott perhaps believe that the President and Senate lack the authority to supersede common-law doctrines via their treaty-making authority? This is the only point on which I find it easy to imagine there might at least be some serious discussion.

Sometimes you will see well-reasoned arguments on behalf of a bad conclusion, or faulty arguments on behalf of a good conclusion. But Mr. Addington's arguments and his conclusion are each as bad as the other.

May 09, 2009  

To reach a recommendation of "no prosecution", one would have to conclude not only that there was no torture, but that there was no "cruel, inhuman or degrading treatment". I can't stop you from advocating such a position, but it's laughable.

May 09, 2009  

Does the author not know that dozens of people have been beaten to death? That U.S. tactics went beyond that list of five and included: walling, slapping, forced nudity, sexual humiliation, secondary-threats, etc. What about the length of the sleep deprivation? There is simply no analysis in this article. The author doesn't even list the facts-- i.e. what tactics were used by the U.S. Very conclusory. D.

May 09, 2009  

Professor Addicott seems to have forgotten the War Crimes Act. If it were up to me to mount prosecutions for any of the acts under discussion, that's the statute I'd rely upon, not the Anti-Torture Act.

May 10, 2009  

I think the conclusion of this argument is weak. He mentions one case that vaguely resembles our current situation. Yet, neither the international example nor the United States' interrogation techniques mention the medical viability of the suspect. Our lawyers did not (and I submit could not) include such information when forming the legal basis for such techniques because that information would prove that enhanced techniques do not work and can be legally called torture. Second, the CIA's solicitor general (the CIA wanted an independent assessment of the effectiveness of the techniques) said in plain language that enhanced techniques do not help the CIA in getting information. Third, the referred to military training program "survival, evasion, resistance, escape," does not resemble the realities of waterboarding on suspects. (This is also backed up by the CIA's Solicitor General.) Only the Navy uses waterboarding today. All the other branches stopped quite a while ago because it causes too much discomfort to our soldiers, even though it was a mere demonstration (soft waterboarding?)of what a soldier could face. I hope to see a follow up on this story with something that has a little more bite.

May 11, 2009  

I am also somewhat amazed by the abrupt ending to this Op-Ed piece. Was something left out? I do not see the reasoning behind equating the methods of interrogation dealt with in Ireland with waterboarding. But is there any case law dealing with waterboarding as such? Any references would be appreciated.

May 11, 2009  

It is very difficult to take Prof. Addington's commentary seriously, although he apparently means it to taken that way. An argument that waterboarding and the other "harsh" techniques do not constitute torture simply has no plausible basis in either U.S. domestic law, or international law, both conventional and customary, as other comments to this post have ably pointed out. And such an argument that fails to even mention the governing U.S. Criminal Code provision that punishes torture is even more difficult to credit. Indeed this is the kind of Yoo/Bybee et al. superficial and incompetent propoganda masquerading as "legal analysis" that got us into this terrible mess in the first place. Shame on you Prof. Addington.

May 12, 2009  

Malcolm Nance, one of the designers of the SERE program which subjects our special forces to waterboarding and to which you are referring to in your article, has said waterboarding is torture. It inflicts severe mental suffering, and not of the lesser kind that would merely be "ill treatment."

May 28, 2009  

Mr. Addicott writes that for something to be torture under the Convention Against Torture, "it must be accomplished with the intention to gain information or a confession." The relevant portion of Article 1 of the Convention Against Torture reads as follows: "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." Clearly Mr. Addicott did not give all the purposes for which torture is prohibited. Why not, Mr. Addicott? This is all too similar to a Senate Judiciary Subcommittee hearing on May 13, 2009, where Senator Whitehouse challenged Mr. Addicott totally inaccurate statement of what Justice Stevens said in a dissenting opinion. Mr. Addicott has demonstrated twice now a willingness to bend the truth -- if not worse -- on torture issues.

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