Recently, a U.S. government lawyer argued before a panel of the U.S. Court of Appeals for the Seventh Circuit – including the eminent jurists Richard Posner and Frank Easterbrook – about what the definition of "torture" should be.
The context was an immigration appeal, Comollari v. Ashcroft. But as I will explain, the resonance of the argument was far broader.
According to the government attorney, it would constitute "torture" if a sniper shoots a person in an artery, causing him to slowly bleed to death. But it would not count as "torture" if the sniper were to hit his target in the head, causing him to die instantly. So a painless assassination – by the CIA, perhaps? – would not be "torture" under the government's definition.
Readers will recall that a few months ago, several internal Bush Administration "torture" memos were leaked to the public. The memos showed that the government has been actively working to narrow the definition of "torture," so as to almost shrink it into nothingness, defying international law principles directly to the contrary. The oral argument in Comollari illustrates that the government – despite denials – is still engaged in the same enterprise of defining torture as narrowly as possible, regardless of what the law says.
In this column, I will argue that it is time for Congress to step in to reaffirm, by statute, what America considers "torture" – and ensure that this definition is used in a consistent, principled way. U.S. law already contains a clear definition of "torture," as I will explain. But the U.S. government doesn't seem to be listening to that definition. Congress should make sure it does – through investigation, resolution, and if necessary, statute. This issue is too important to ignore. America's honor and morality are at stake.
Currently, the Administration defines torture one way (and far too narrowly), wanting to protect its soldiers from being accused of it. Yet it defines torture another way when it wants to deport someone who seeks asylum on the ground that he reasonably fears being tortured if he is returned to his home country. This is unacceptable and wrong.
Background: The Torture Memos
Shortly after the Abu Ghraib prison abuse scandal broke, several shocking U.S. government internal memos surfaced. The memos, in effect, offered complex but specious legal arguments to justify the U.S.'s avoiding having to abide by the major international and national laws prohibiting torture.
An August 2002 Department of Justice (DOJ) memo stated that the DOJ advised the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war. This memo was reportedly prepared to provide legal defenses for the CIA's harsh methods, in case its agents were prosecuted for violating federal statutes prohibiting torture.
Even more significant was the very narrow definition of "torture" the memo proposed that the President could legally adopt. Under this definition, the only treatment that would count as torture would have to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
In addition, a March 6, 2003 draft report prepared by Pentagon lawyers also defined torture narrowly – and also offered arguments as to why U.S. government agents who torture prisoners could not be prosecuted.
The draft report made the nearly-ridiculous suggestion that if the purpose of the torture was to extract information, not to cause pain, it wasn't really torture: "Even if the defendant [U.S. government agent] knows that severe pain will result from his actions," it suggests, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."
The draft report also went on to claim that, "in light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."
And apparently, when U.S. citizens are deemed "enemy combatants" and imprisoned incommunicado in the U.S., they may be able to be tortured here. According to the report, permissible torture recognizes no boundaries – it can be carried out overseas or in the U.S. without regard to any legal prohibitions.
International Law Offers a Clear Definition of Torture
After the torture memos appeared, more than 120 prominent lawyers, former government attorneys and legal academics sent a letter to President Bush. They expressed the view that the memos misinterpret the U.S. Constitution and laws, international treaties and rules of international law. They also expressed the view that, for this reason, the lawyers who had approved and signed the memos have not met their obligation to defend the Constitution and should be reprimanded.
As the letter reflects, the international legal definition of torture is universally recognized and accepted – and is very different from what Administration lawyers claim. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which I will call "the Torture Convention") forbids torture under any circumstances and does not allow the prohibition to be derogated even in conditions of national emergency.
It's important to note here that the U.S. – as well as all other liberal democracies – are signatories to the Torture Convention, and that under the Constitution, treaties ratified by the Senate are U.S. law, just like statutes and Supreme Court decisions. So claiming the U.S. has the right to differ from this definition is simply untenable.
Here is the Torture Convention's definition of "torture": "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."
This sensible definition reflects our instincts about what torture is, and why it is wrong. It makes clear that torture to extract information is still torture. And it makes clear, too, that torture need not put its victim on the brink of death to be torture.
One would have thought these points were intuitively clear – until the Administration memos became public. But even if the point wasn't intuitively clear, it was legally clear – as a matter of a treaty that had become U.S. law.
Even After the Memos, the Government Is Still Trying to Define "Torture" Narrowly
After Abu Ghraib, many Americans called for Congress to investigate allegations of torture at U.S. bases in the Middle East. They raised concerns that important issues related to the treatment of detainees in the "war on terror" and in Iraq remain unanswered, including why detainees were "rendered" to countries such as Egypt, Syria and Saudi Arabia where torture is commonplace, and what interrogation techniques were approved for detainees in Iraq and Afghanistan.
During the scandal, the Bush administration issued a few terse statements claiming that the memos were only advisory; that the U.S. government was not making policy based on these analyses; and that its practices were not torture.
But recent events suggest that's not so. To the contrary, narrowing the definition of "torture" in domestic litigation now appears to be an active part of the U.S. Department of Justice's strategy.
Let's return now to the case with which this column began. The immigrant, Comollari, claimed that if he was returned to Albania, he was at risk of being killed by the political party in power there, due to his own past political activities.
And he pointed out that the Torture Convention forbids expelling a person to a country in which there are "substantial grounds for believing the person would be in danger of being subjected to torture." When are there "substantial grounds"? According to the regulations, it is if the person is "more likely than not" to be tortured.
During oral argument, the government brought up a side issue that, while it may not relate directly to Comollari, could become extremely relevant in other cases. The government's lawyer argued that the definition of torture does not necessarily cover assassination – if the assassination is a "painless death."
Judge Easterbrook then summarized the government's position: The Torture Convention does not bar assassinations provided they are done cleanly and lead to instant death.
The government attorney did not deny the summary's accuracy – and when challenged, repeated that she had "been instructed not to concede this point." Her comment indicates that internal DOJ discussions may be continuing to take place about how to most narrowly define torture.
The fact that the issue was a side issue, but the government dwelt upon it, also suggests it is a subject of ongoing interest to DOJ. As the court noted, the Comollari case itself did not directly raise this question.
Since there was no reason to think Albanian assassins are committed to a "clean kill" philosophy – the court (in an opinion by Judge Posner) wryly noted – Comollari's belief he might be assassinated was tantamount, for legal purposes, to a belief he might be tortured. So the issue boiled down to whether he had "substantial grounds" to believe he might be assassinated – with whatever degree of pain might ensue.
Interestingly, at the same time the court dismissed the government's issue as irrelevant to the case at hand, it also issued a warning of sorts to the government. Judge Posner made clear that even if death itself is physically painless, the anticipation of death by assassination may be a source of mental anguish that rises to a level that satisfies the Torture Convention's definition of torture.
In other words, the court was saying: DOJ, don't assume assassination isn't torture, especially if there is a climate of fear of assassination. You may be proved very, very wrong.
Comollari is indicative of the government's systematic undermining of the Torture Convention. The Torture Convention was the breakthrough international human rights treaty that the United States not only signed and ratified, but also passed implementing legislation, all within a matter of a decade, lightening speed for international law.
But in the immigration context, the government has continued to narrow the definition. According to Chicago immigration lawyer Mirna Adjami, U.S. immigration courts are increasingly reluctant to grant Torture Convention relief.
For instance, in 2000 these administrative courts granted relief in 4.3 percent of 12,432 Torture Convention applications filed; in 2001 relief was granted in only 4.4 percent of cases, even though the number of Torture Convention applications increased 42 percent to 17,660.
It's Time For Congress To Step In
The Bush Administration promised it would not play fast and loose with the well-established Torture Convention definition of torture. But its specious position on torture and assassination shows it is still splitting hairs – and doing so to serve its political agenda.
The question is still very much alive today. The legality of the interrogation techniques used by U.S. personnel on detainees at Guantanamo Bay remains unclear. Human Rights Watch has noted that while U.S. policy is that the detainees be treated "humanely," the Department of Defense has never revealed publicly how the detainees actually have been interrogated.
It's time for Congress to step in. As part of its oversight powers, Congress should expand its investigation of the Justice Department – monitoring how it is defining torture in various cases, and checking to make sure that it is not doing so lawlessly. Congress may also want to consider passing a statute or resolution reaffirming the Torture Convention's definition – though since the definition is already U.S. law, that should not be necessary.
The issue is one of morality and decency – and of honor, and compliance with the law. But it also has a pragmatic side. When U.S. soldiers are prisoners of war, will we want a narrow definition of torture to be used? When it is our people who are in the sights of a gun, will we want that definition to exclude assassination?