Tuesday, February 9, 2010

Waterboarding and sleep deprivation are torture

I just wanted to make that clear. They are clearly torture as defined by the Torture Convention which lots of countries (including Oz and the US) have signed and ratified. President Ronald Reagan signed the convention on behalf of the US. The Convention defines torture as:
...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.
On my reading that includes waterboarding and sleep deprivation.

In transmitting the Convention to the Senate for ratification, President Reagan wrote (via):
The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.
The declared policy of the Reagan Administration on terrorism (pdf) (also via) was:
Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy’s most potent tool, the rule of law against them.
In other words, to not become what we were fighting.

In a 1980 decision, the US Federal Court accepted a claim to damages from a family for an act of torture that had occurred in Paraguay. In its decision the court held that:
Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.
In fact, it had even older antecedents in British (and thus American) law. In a recent decision, the Judicial Committee of the House of Lords ruled that:
... that from its very earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law, the subject of proud claims by English jurists such as Sir John Fortescue (De Laudibus Legum Angliae, c. 1460-1470, ed S.B. Chrimes, (1942), Chap 22, pp 47-53), Sir Thomas Smith (De Republica Anglorum, ed L Alston, 1906, book 2, chap 24, pp 104-107), Sir Edward Coke (Institutes of the Laws of England (1644), Part III, Chap 2, pp 34-36). Sir William Blackstone (Commentaries on the Laws of England, (1769) vol IV, chap 25, pp 320-321), and Sir James Stephen (A History of the Criminal Law of England, 1883, vol 1, p 222). That reliance was placed on sources of doubtful validity, such as chapter 39 of Magna Carta 1215 and Felton's Case as reported by Rushworth (Rushworth's Collections, vol (i), p 638) (see D. Jardine, A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth, 1837, pp 10-12, 60-62) did not weaken the strength of received opinion. The English rejection of torture was also the subject of admiring comment by foreign authorities such as Beccaria (An Essay on Crimes and Punishments, 1764, Chap XVI) and Voltaire (Commentary on Beccaria's Crimes and Punishments, 1766, Chap XII). ... In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.
The House of Lords further stated that:
Despite this common law prohibition, it is clear from the historical record that torture was practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against the state, in exercise of the Royal prerogative: see Jardine, op cit.; Lowell, op cit., pp 290-300). Thus the exercise of this royal prerogative power came to be an important issue in the struggle between the Crown and the parliamentary common lawyers which preceded and culminated in the English civil war. By the common lawyers torture was regarded as (in Jardine's words: op cit, pp 6 and 12) "totally repugnant to the fundamental principles of English law" and "repugnant to reason, justice, and humanity." One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued.
In other words, we settled this issue in the C17th, why is it even up for discussion?

The reason why I wanted to make my position quite clear is that myself, Mario P and Sam H spent a frustrating time arguing with someone who thought:
(1) waterboarding and sleep deprivation were not torture (but he would not define what was torture);
(2) even if it was, the US had only done it to three people;
(3) they were very bad people and deserved it; and
(4) do we not understand that we are at war and what the people we are at war with are like.
To which we responded with:
(1) yes it is, under the UN Convention definition;
(2) a wrongful act is wrong regardless if done once, thrice or a hundred times;
(3) they were but no-one does (in particular, no one deserves to have us degrade ourselves like that), that is the point;
(4) yes we do, but if we become like those we fight, we lose.
I understand why the US went down this path. Panic coupled with outraged tribalism plus the bravado pseudo-toughness of the hollow. The scale of the Sept 11 attack (which violated the US sense of being a haven from the problems of the world), the belief (clearly justified IMHO) that modern technology gave the possibility of horrific acts which the jihadis would engage in if they could, and (reprising the circumstances of the C16th and C17th) not knowing how to tell decent Muslims from the homicidal maniacs led to a "such means are justified' approach, even if on a retail basis rather than a wholesale one.

But that is the point of being civilised: to look beyond panic and outraged tribalism and be able to grasp that there are things You Do Not Do. To know real strength, not the wicked pretense of it.

It was one of those wicked and stupid things that Clever Stupid People do. The Clever Stupid people with a hollow core. "I understand the stakes so therefore ...". Actually, no you do not. The House of Lords does, but you do not.

I just wanted to make my position quite clear on this point.

ADDENDA You would think that people who call themselves 'conservatives' might have some grasp that torture is a violation of centuries of their common law heritage. But, as a friend of mine says, a lot of modern "conservatives" are post-modern conservatives for whom "conservatism" is a free-floating attitude, a statement of tribal "authenticity", not something grounded in a genuine appreciation of what our heritage actually is.

FURTHER A useful link about the general issue of torture is here.

UPDATE Vice President Cheney has publicly stated that he was a supporter of waterboarding:
CHENEY: I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques that...
KARL: And you opposed the administration's actions of doing away with waterboarding?
CHENEY: Yes.
I will leave it to those more versed in international law than I to decide whether he has, indeed, just confessed to a war crime. But my comments above about "conservatives" who do not understand the heritage they are conserving: they most certainly apply to Dick Cheney. And, for that matter, to Karl Rove.

KEY DOCUMENT The 289page 10MB Office of Professional Responsibility report on the "torture memos" is here (pdf).

3 comments:

  1. It isn't just English legal commentators like Blackstone who rejected torture. Lord de Grey CJ in the important case of Fabrigas v Mostyn (1774) 20 St Tr 82 (KB) had this to say:

    "The Governor knew he could no more imprison [Fabrigas] for a twelvemonth, that that he could inflict the torture; yet the torture, as well as banishment, was the old law of Minorca, which fell of course when it came into our possession. Every English governor knew he could not inflict the torture; the constitution of this country put an end to that idea."

    Note the date of the case.

    There are idiosyncratic reasons for the prevalence of torture in civilian systems longer than in common law systems.

    First, the civil (Roman) law system is meant to get at the 'truth' of what occurred, while at common law, the fact-finder's role (whether judge or jury) is to make a decision on the strength of the cases before it (without making over-arching truth claims). Torture -- done cleverly, and this is a horrible thing to say -- often facilitates this.

    Second, Roman law always prized the confession as 'the Queen of Proofs', while common lawyers have always suspected that the coppers 'pulled the accused's ears' or some such in order to obtain it. English evidence law is thus deeply suspicious of confessions, and sets them all about with fever trees.

    Third, in antiquity Roman courts were adversarial, like modern common law courts, with similar rules of evidence (with the exception of the rule against hearsay). This restrained the state very impressively, such that there was a prohibition on torture of all citizens and free-born non-citizens. Only slaves could be tortured. Compared with what came afterwards, this was a paragon of enlightenment. Non-citizens could be subject to horrible punishments (like crucifixion), but they had been found guilty first! Citizens could only be beheaded, and only for murder, rape or treason. Rape was also a crime against the person, as it is in modern societies; we even have Roman records of men being fined large sums for raping prostitutes on the grounds that it was 'theft of services'.

    Medieval court procedure was, however, inquisitorial (as was the Court of Star Chamber, one reason why the English got rid of it), and when the Code Napoleon made its way across Europe, it unfortunately took the inquisitorial procedure with it. Yes it built on much that was best in Roman law, but the combination of the valorization of confessions with inquisitorial methods meant that the non-common law world was saddled with torture for very long periods, such that it become normalised across whole societies.

    Of course, as you point out, to see a common law country (the US) engaging in torture is truly horrifying and should make any Westerner with a decent knowledge of legal history hang their heads in shame.

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  2. Often facilitates 'getting at the truth' -- apologies for my fumble fingers.

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