The debate about what constitutes torture, and about whether torture is sometimes justified, seems at times to be overdone. We historically examine, then repudiate, instances of abuse and torture, and occasionally even enact or reinforce legislation, making our country’s position more clear. However, without fail, after the issue is seemingly put to bed, something occurs – an event, discovery, legal opinion, or public statement – that reinvigorates the debate, and we realize that it still has not been settled in terms of public opinion and, in some cases, the law. Some lingering questions related to torture and coercive interrogations (or “enhanced interrogation techniques”) include:
– Is torture effective? If so, in what way is torture effective? What is the metric by which we evaluate its efficacy?
– Some believe the use of torture is justified because certain enemies would “do worse to us” if given the opportunity, so they therefore deserve equally reprehensible treatment. Is, “they deserve it anyway,” a proper moral or legal justification for the use of torture?
– Is it problematic that some refer to “enhanced interrogation techniques” as torture, when so many have argued that such techniques are permissible precisely because they do not meet the definition of torture?
It is worth our time to look at some legal definitions as we begin to tackle these questions.
How does the United States define torture? 18 U.S. Code § 2340 (Definitions) provides the following:
(1) “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.
This is adapted language based on the United States’ ratification of and reservations to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984). Article 1, paragraph 1 of the convention provides the following definition:
“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.”
The US definition removes the requirement that the pain or suffering be for the purposes of eliciting information or confession, which provides broader applicability for criminal purposes. The US definition also adds clarification regarding “severe mental pain and suffering,” and it is in this clarification that one might find room for legal debate with regard to waterboarding. In 18 USC 2340 there is a requirement for “prolonged mental harm.” Whether something caused prolonged mental harm cannot be accurately determined until after the fact. There is also no specific delineation between what constitutes prolonged harm as opposed to temporary harm. Some may argue that simulated drowning is not prolonged mental harm, and therefore down not meet the definition of torture as provided under USC. An opposing argument might point out that this verbiage does not provide objective guidance for making a proper determination on whether harm is prolonged or not prolonged. In On “Waterboarding”: Legal Interpretation and the Continuing Struggle for Human Rights (32 B.C. Int’l & Comp. L. Rev. 203, 2009) Daniel Kanstroom quotes medical experts as stating that, with respect to waterboarding, “[l]ong term effects include panic attacks, depression and PTSD.” This would appear to meet a cursory definition of “prolonged mental harm.”
Former President Obama provided clarifying guidance in 2009:
“Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes.” (EO 13491, Sec. 3(b))
Executive Order 13491 provides strict limitations on what techniques can be used for intelligence interrogation. As for torture – in this case waterboarding – as punishment, such acts are precluded by the 5th, 8th, and 14th amendments to the constitution. Regarding the legality of torture, to include waterboarding and “a hell of a lot worse worse,” the answer seems to be definitively no, it is not legal. The constitutional prohibitions against cruel and unusual punishments similarly undermine assertions that “they deserve it anyway.” One may make the emotional appeal that terrorists engage in far worse behaviors, but our laws and their moral and ethical underpinnings are not impacted by other people’s bad behavior. We establish limitations based on what we determine to be right, ethically and morally. Torture employed as extrajudicial punishment is contrary to the constitutional and moral character of our nation.
Understanding the legal, moral, and ethical refutations of torture should be sufficient, but some maintain that torture is an effective and efficient way to gain usable information. The available evidence does not support this position. The report from the Senate Intelligence Committee, released in December 2014, states unequivocally that the CIA’s interrogation program, which included waterboarding (as well as other coercive methods), “was not an effective means of obtaining accurate information or gaining detainee cooperation.” In short, their investigation convinced them that torture did not work. But does that mean it cannot work?
The problem with relying on torture – or otherwise highly coercive methods for gathering information – is that one cannot be sure about the information’s accuracy without vetting it. The same can be said for information gained through non-coercive means, but the latter is not controversial. What is the appeal of using torture, then? Speed, some would say, makes the use of torture appealing. If we need the information very quickly, and the subject is otherwise uncooperative, then torture is the most efficient way to make the subject cooperative. But, is there any data to support this? Khalid Sheikh Mohammed was water boarded over 180 times; this does not suggest an efficient and accurate gathering of information. It is also an unsound practice to act on un-vetted information. A subject could give up false information under duress, which could result in a distraction from the actual threat or in personnel walking into a trap. The subjects that break easily under duress might break just as easily under a non-coercive approach strategy, when administered by someone trained in proper interview and interrogation techniques. There is simply no documented evidence demonstrating that torture, or highly coercive interrogations in general, are more effective or efficient than correctly constructed approach strategies using reliable – and legal – questioning techniques.
The debate about whether torture is effective or ought to be allowed will certainly not be settled anytime soon, but if nothing else this should serve to put to rest the idea that torture is legal. Torture is strictly prohibited under international law and US law. As stated in the US’ first response to the UN regarding the convention against torture:
“Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.” (CAT/C/28/Add.5; Report Submitted by the US to the UN Committee against Torture, dated 9 February 2000)
Let us not allow ourselves to be convinced that torture is legal, appropriate, or otherwise conducive to our national values. The United States is a nation of laws, and those laws proscribe the use of torture.