Getting back to this thread after a fun weekend of not-torturing myself with various forms of holiday baked treats.
Junebug, I appreciate you taking the time to make post #356. Let me start by outlining the points on which I believe we are in substantial agreement.
First, I am in agreement with you that there needs to be some commonly understood definition of what torture is. The
UN Convention Against Torture is a good starting point. The 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.
Also note this, which I'll come back to later:
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
There is also this:
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
Bold added.
According to Wikipedia,
In 1978, the European Court of Human Rights ruled that the five techniques of "sensory deprivation" were not torture as laid out in Article 3 of the European Convention on Human Rights, but were "inhuman or degrading treatment"[79]
The Geneva Conventions also prohibit torture, although I wasn't able to find a definition of torture within the conventions easily (read: in 5 minutes of googling). However, this excerpt is important:
"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW
Bold added.
Second, I am in agreement with you that many of the CIA activities that took place during the Bush administration constituted torture, and were prohibited by the Convention. People who perpetrated them should be held to account. That includes those who enabled the actual torturers, in my opinion, like John Yoo and John Ashcroft.
The definitions of torture and degrading treatment in the UN Conventions and the Geneva protocols are quite broad. If read in good faith, by a person who is not trying to find loopholes and excuses to torture people, they seem to me to prohibit almost all of what the CIA did to the captives described in the Senate report. The Bush administration conveniently defined the people it tortured as "unlawful combatants" to avoid the application of Geneva. I'm not sure how they thought they could weasel out of the Convention Against Torture but I'm sure it's somewhere in Yoo's memos. This sort of behavior has had a significant influence on my thinking around the issue of whether exceptions to the torture rules should be allowed, because experience shows that if any exceptions are allowed, they will be exploited and expanded by unscrupulous persons.
Now, there remains one issue where your thinking is not completely clear to me. Some of your posts seem to suggest that in a "ticking time bomb" situation, there should be exceptions to the rules so that torture is expressly allowed, even though the actions in question would not be lawful under the Geneva Conventions or the Convention Against Torture. Thus, if I am interpreting your position correctly, it seems to me that you would allow actual torture, i.e. the infliction of severe pain and suffering, in a ticking time bomb situation, as a matter of law. I note that this sort of justification is expressly prohibited by the UN Convention Against Torture, as quoted above "No exceptional circumstances whatsoever ... may be invoked as a justification of torture."
If this is correct, we disagree. Setting aside the fact that the US government has already agreed to an international treaty banning such justifications, I have at least 4 reasons for objecting to such an exception:
1. As we have seen, state actors tend to look for loopholes and justifications so they can do whatever they want to do. Providing such a loophole in black letter law guarantees that it will be exploited. It's especially bad if the perpetrator simply has to plead that they had a subjective belief that there was some sort of horrible imminent threat, as you have suggested (you used the words "good faith belief").
2. Outside of comic books and TV, such scenarios are vanishingly rare. In fact, I have never heard of a real life incident where a perpetrator is captured and has information that would prevent a bomb going off or other adverse consequence if they would just talk.
3. Given the scientific evidence available on the usefulness of torture, it is hard to imagine that torture would even be effective in such a situation. If a person is depraved enough to set up a bomb to kill innocents, he is probably tough enough to withstand torture long enough for his bomb to go off.
4. Given #2 and #3, I believe the likelihood of the exception being abused is exponentially more likely than the extremely remote possibility of it being rightfully and successfully exercised.
If I have misstated your position, please clarify it.