U.S. Still on the Fence On Torture

United States is continuing to insist that the war on terrorism justifies extreme forms of interrogation, notably "waterboarding."^[1] During a Senate confirmation hearing earlier this month, attorney general nominee Michael Mukasey refused to address the legality of bringing a prisoner to near drowning to make him talk, drawing fire from opposition Democrats and human rights groups.^[2]

"If [Mukasey] is still unsure whether the horrific practice of waterboarding is illegal, then he shouldn't be confirmed….The only reason to equivocate on waterboarding is to protect administration officials who authorized it from possible prosecution," said Human Rights Watch Executive Director Kenneth Roth.^[3]

The Geneva Conventions expressly outlaw any form of moral and physical torture to extract information from prisoners of war.^[4] Article 3 describes minimal protections which must be adhered to by all individuals within a signatory's territory during an armed conflict not of an international character (regardless of citizenship or lack thereof): Noncombatants, combatants who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment. The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.^[5] Article 3's protections exist even if one is not classified as a prisoner of war. Article 3 also states that parties to the internal conflict should endeavor to bring into force, by means of special agreements, all or part of the other provisions of the Third Geneva Convention.^[6]

While many in the U.S. government oppose anything even approaching torture, those who support tougher interrogation techniques find that the ends justify the means in the war on terror.^[7] Former Central Intelligence Agency director John McLaughlin said the interrogation techniques used by US intelligence had protected American lives and prevented further terrorist attacks on US soil, adding that they were very rarely used and only on a small number of people.^[8]

The debate over this issue does not seem to be coming to a close either. The issue of torture has divided candidates vying for the Republican Party's nomination to run in the 2008 presidential election.^[9] Former New York mayor Rudolph Giuliani asserted that "it depends on how it's done."^[10] While Arizona Senator, Vietnam War veteran and former prisoner of war said, "all I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot's genocide in Cambodia, and there are reports that it is being used against Buddhist monks today (in Myanmar)……It is not a complicated procedure. It is torture."^[11]

Federal criminal attorney Douglas McNabb has also previously discussed the New York Times article discussed above in his terrorism blog, these posts can be found here.

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^[1] AFP Staff, US war on terrorism, 'waterboarding' not deemed torture, Agence France-Presse, November 5, 2007, available at LEXIS, News Library, Wire News Services; see also Scott Shane, David Johnston and James Risen, Secret U.S. Endorsement of Severe Interrogations, New York Times, October 4, 2007, available at http://www.nytimes.com/2007/10/04/washington/04interrogate.html?hp (last visited October 9, 2007) (The New York Times in early October published Justice Department documents that said it was not illegal to smack prisoners around, expose them to extreme temperatures or to simulated drowning, a technique used during Algeria's war of independence in the 1950s.)
^[2] Id.
^[3] AFP Staff, supra note 1.
^[4] Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135.
^[5] Id.
^[6] Id.
^[7] AFP Staff, supra note 1.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.