Worldview Commentary No. 296 on WBEZ, 91.5, Chicago Public Radio

“Torture: Outlawed in America?”

Does American law now protect us from another Abu Ghraib? If prisoners are once again stripped naked, threatened by snarling dogs, forced to engage in simulated sex, held in contorted positions for hours in near freezing temperatures, deprived of sleep for days on end, held in isolation for months, subjected to mind-altering drugs, and partially drowned by water boarding, will all this be unlawful?

In preparing for a Teach-In on Torture held last weekend by the Unity Temple of the Unitarians in Oak Park, I found that federal law is still beset by disquieting gaps and ambiguities. Here is the current patchwork of our treaties, statutes, executive orders and policies:

Treaties: The US is a party to two sets of treaties banning torture, but their scope and enforceability are problematic.

First are the 1949 Geneva Conventions. Common Article 3 prohibits torture, cruel treatment, and outrages upon personal dignity, including humiliating and degrading treatment.

But the Geneva Conventions apply only in armed conflict. While the Bush Administration treated the “war” on terrorism as a global war, most scholars do not. Except in Iraq and Afghanistan, where the laws of war continue to apply, U.S. counter-terrorist activities are law enforcement or intelligence operations not covered by the Conventions.

We are also party to human rights treaties, namely the Convention Against Torture and the International Covenant on Civil and Political Rights. Both ban not only torture, but also cruel, inhuman or degrading treatment or punishment, in all times and circumstances. These additions matter: Whether or not forced nudity and sexual humiliation amount to torture, they clearly qualify as cruel, inhuman or degrading.

But the US watered down both treaties when it ratified them. It attached a reservation stating that “cruel, inhuman or degrading” treatment covers only the cruel and unusual punishment prohibited by the Eighth Amendment to the Constitution, or violations of due process of law under the Fifth and Fourteenth Amendments.

This opens a huge loophole in the treaties. The Eighth Amendment applies only to punishments, not to intelligence interrogations. And due process has been interpreted by the Supreme Court to bar prisoner abuse only if it “shocks the conscience.” Bush Administration lawyers opined that none of the abusive techniques listed above, when applied to suspected terrorists, shocked the conscience. Hence they found no treaty violations.

Statutes: The federal torture statute makes torture a crime, but only if committed outside the U.S., and in any case does not cover cruel, inhuman or degrading treatment. Another statute makes cruel or inhuman – but not degrading — treatment a war crime in non-international conflicts, but only if it reaches the same threshold of “severe” pain or suffering as torture.

A third law, the Detainee Treatment Act of 2005, bars the military from using any technique not listed in the Army Field Manual. In general, that would bar torture or other abusive techniques. However, in 2006 the Pentagon added an Appendix M to the Field Manual, which allows “separation” of so-called unlawful enemy combatants in order to “prolong the shock of capture.” Separated prisoners are barred from communicating with other prisoners for 30 days or more, and may be denied sight and sound by means of goggles and earmuffs for 12 hours or more. All of this can lead to psychiatric harm.

The Act did not require the CIA or other agencies to use only the Field Manual techniques. It did bar all agencies from engaging in cruel, inhuman or degrading treatment – but only as defined by the same “shocks the conscience” test used to water down the treaties. We now know that after the Act was passed, Bush Administration lawyers ruled in secret memos that the military and CIA could continue using abusive techniques.

Executive Order: In January 2009 President Obama revoked the Bush Administration memos and issued a new executive order requiring that prisoners be treated humanely, in accordance with Common Article 3, and interrogated only by techniques listed in the Army Field Manual. But his order applies only in armed conflicts. Counter-terrorism interrogations outside an armed conflict are not covered.

Policies: The Obama order also set up a task force chaired by the Attorney General to examine whether the Army Field Manual techniques are sufficient, and whether other agencies need additional techniques. Although the task force has now reported to the President, its report has not been made public. In an August 24 press release, Attorney General Eric Holder disclosed that the task force “concluded that the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies.”

That is important. But does it apply, like the executive order, only in armed conflict? And what if anything does it say about Appendix M?

Americans cannot rest content on this Swiss cheese of regulations. The Bush Administration took advantage of the loopholes in the treaty reservations and statutes. The Obama order and policies – whatever the scope of the secret task force report — could be reversed by the next Administration with the stroke of a pen.

As a start, the task force report should be made public. As soon as possible, the US should withdraw its “shocks the conscience” reservation to the torture treaties. Most important, we need a law comprehensively banning all torture and cruel, inhuman or degrading treatment. Otherwise it may be only a matter of time before we are disgraced by another Abu Ghraib.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on WBEZ, 91.5 FM, Chicago Public Radio, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.