Can We At Least Agree That Torture is Wrong?
The Senate's recent defiance of the White House has reopened the debate over torture. How there can possibly be a debate on torture is beyond me, but there is one, and I want to contribute my 2 cents.
In response to Senator John McCain's proposed amendment to the 2006 Defense Appropriations Bill, Vice President Cheney came out against the amendment, and President Bush reportedly threatened to veto legislation that does not exempt the CIA from the limitations that the amendment would place on the military. I don't care what Scott McClellan says, the White House wants the CIA to be able to torture detainees abroad. Why do they want to do that? Well, the party line is two-fold, basically: "we do not torture, we follow the treaties and laws on it", while at the same time "we need to be able to do whatever we need to in order to defend America from veeeeeery bad people." I have issues with both of those assertions, in whatever form they may be continue to be made.
If there is one thing the Bush administration does well, then that thing is not following treaties. When Scott McClellan says "there are laws that are on the books that prohibit the use of torture. And we adhere to those laws", what he is doing is toeing the line between "I am innocent of these charges" and "I was found not guilty." A big part of the administration's defense of its practices is that many of the treaty-based prohibitions on torture it accepts and extols extend only to its practices on U.S. soil. Assurances of compliance with international standards and obligations cannot and must not be divorced from related duties of nonrefoulement, nor can they be wedded to the questionable rendition of suspects to countries that practice torture.
There is certainly some room for debate on where the line lies with regard to what is and what is not considered torture. Apart from this broader discussion on emerging international legal norms, the territorial limitations on our responsibility to fight torture are treaty-based. The U.S. is a full party to the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and to the International Covenant on Civil and Political Rights; we have taken no action on the optional protocols to either document. On both treaties, our ratification included reservations. Among them were two in particular: one, that the Federal Government was only bound to the extent that it has jurisdiction to legislate (the remaining implementation being left to the states), and two, that cruel, unusual and inhumane treatment or punishment "means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." The effect of these reservations is that the government can comply with its international obligations under the treaties while it decides for itself what those obligations are.
The more challenging proposition to refute is the second one; that which justifies excessively degrading practices for the sake of national security. In the "ticking time-bomb" scenario, we are asked to weigh a slight violation of the rights of a very bad person against potentially great harm to the innocent. The scenario is typically that a bomb is set to go off and kill 10,000 Americans, only one guy knows where it is and we have him in custody, but he won't talk. That's when we're all supposed to say "if letting Lindy England loose on that guy will save all those people, then by God, I'll go bust her out of jail myself!" There are many reasons why I find this troubling, perhaps none more than how easy it is to sell most Americans on this line of reasoning. Like most propositions that are easy to sell (i.e. "if kids are not mature enough to buy condoms then they shouldn't be having sex!"), though, it is very deeply flawed.
What if it's only 100 lives at stake? What if we have to torture not one guy, but one dozen? How sure do we have to be that the bomb really exists? What if the suspect is a woman? What if it's only 10 lives at stake? What if the suspect is a child? What if the suspect is a child and it's 100 lives at stake? What if the suspect is an adult and it's only one life at stake? A big problem with this reasoning is that if you carry it to it's logical end, our police will routinely torture suspects to find missing victims, or to catch murderers. I'm sure to many that seems ok, these are, after all, some pretty heinous crimes. But it is difficult for me to find comfort in a society where torture becomes routine. When thinking of the Colombias and Sri Lankas of the world, one conjures up images of brutality and abuses by both law enforcement and criminal groups. You're as likely to have an unpleasant vacation at the hands of police or criminals, which leads me to believe that, at least to a certain extent, society as a whole becomes desensitized to violence as abuse becomes widespread. This way of looking at abuse could help shed light on the vicious cycle of prisoner abuse and kidnappings that we saw in Iraq last year.
If we can at least agree that torture is wrong, then we should take action and explain that to our elected officials.
In response to Senator John McCain's proposed amendment to the 2006 Defense Appropriations Bill, Vice President Cheney came out against the amendment, and President Bush reportedly threatened to veto legislation that does not exempt the CIA from the limitations that the amendment would place on the military. I don't care what Scott McClellan says, the White House wants the CIA to be able to torture detainees abroad. Why do they want to do that? Well, the party line is two-fold, basically: "we do not torture, we follow the treaties and laws on it", while at the same time "we need to be able to do whatever we need to in order to defend America from veeeeeery bad people." I have issues with both of those assertions, in whatever form they may be continue to be made.
If there is one thing the Bush administration does well, then that thing is not following treaties. When Scott McClellan says "there are laws that are on the books that prohibit the use of torture. And we adhere to those laws", what he is doing is toeing the line between "I am innocent of these charges" and "I was found not guilty." A big part of the administration's defense of its practices is that many of the treaty-based prohibitions on torture it accepts and extols extend only to its practices on U.S. soil. Assurances of compliance with international standards and obligations cannot and must not be divorced from related duties of nonrefoulement, nor can they be wedded to the questionable rendition of suspects to countries that practice torture.
There is certainly some room for debate on where the line lies with regard to what is and what is not considered torture. Apart from this broader discussion on emerging international legal norms, the territorial limitations on our responsibility to fight torture are treaty-based. The U.S. is a full party to the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and to the International Covenant on Civil and Political Rights; we have taken no action on the optional protocols to either document. On both treaties, our ratification included reservations. Among them were two in particular: one, that the Federal Government was only bound to the extent that it has jurisdiction to legislate (the remaining implementation being left to the states), and two, that cruel, unusual and inhumane treatment or punishment "means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." The effect of these reservations is that the government can comply with its international obligations under the treaties while it decides for itself what those obligations are.
The more challenging proposition to refute is the second one; that which justifies excessively degrading practices for the sake of national security. In the "ticking time-bomb" scenario, we are asked to weigh a slight violation of the rights of a very bad person against potentially great harm to the innocent. The scenario is typically that a bomb is set to go off and kill 10,000 Americans, only one guy knows where it is and we have him in custody, but he won't talk. That's when we're all supposed to say "if letting Lindy England loose on that guy will save all those people, then by God, I'll go bust her out of jail myself!" There are many reasons why I find this troubling, perhaps none more than how easy it is to sell most Americans on this line of reasoning. Like most propositions that are easy to sell (i.e. "if kids are not mature enough to buy condoms then they shouldn't be having sex!"), though, it is very deeply flawed.
What if it's only 100 lives at stake? What if we have to torture not one guy, but one dozen? How sure do we have to be that the bomb really exists? What if the suspect is a woman? What if it's only 10 lives at stake? What if the suspect is a child? What if the suspect is a child and it's 100 lives at stake? What if the suspect is an adult and it's only one life at stake? A big problem with this reasoning is that if you carry it to it's logical end, our police will routinely torture suspects to find missing victims, or to catch murderers. I'm sure to many that seems ok, these are, after all, some pretty heinous crimes. But it is difficult for me to find comfort in a society where torture becomes routine. When thinking of the Colombias and Sri Lankas of the world, one conjures up images of brutality and abuses by both law enforcement and criminal groups. You're as likely to have an unpleasant vacation at the hands of police or criminals, which leads me to believe that, at least to a certain extent, society as a whole becomes desensitized to violence as abuse becomes widespread. This way of looking at abuse could help shed light on the vicious cycle of prisoner abuse and kidnappings that we saw in Iraq last year.
If we can at least agree that torture is wrong, then we should take action and explain that to our elected officials.
Labels: international law
posted by Dan at 8:52 PM
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