The recently released Senate Intelligence Committee report on C.I.A. interrogation practices has sparked tremendous academic and political commentary. Sadly, much of said commentary focused on the wrong question – whether enhanced interrogation techniques used by the C.I.A. yielded valuable intelligence information, enabling the United States to thwart future terrorist attacks and to capture senior Al Qaeda leaders, such as Bin Laden. This question would be relevant only if the enhanced interrogation techniques did not amount to torture; because they did, the only appropriate response is to acknowledge the past and to accept responsibility, including imposing criminal liability on those responsible for the use of such practices.
The so-called “Torture Report” details numerous abuses at the hands of the C.I.A., including subjecting detainees to beatings, stress positions, isolation, sleep deprivation, harsh environmental conditions, rectal feedings, and water boarding (or “near drownings” in the case of at least one detainee), for weeks and/or months at a time. It is unquestionable that these practices in the aggregate amounted to torture under both international and domestic law.
Article 1 of the Convention Against Torture, to which the United States is a party, defines torture a “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…. when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official…” The Convention has been interpreted by different courts, including the Israeli Supreme Court, which held that “a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever..” The Court concluded that while an investigation may cause discomfort, its legality “is deduced from the propriety of its purpose and from its methods.” The Court further reasoned by providing an example of sleep deprivation, as an interrogation technique, and concluded that prolonged or unnecessary sleep deprivation may be unreasonable if not necessary. In addition, the European Court of Human Rights has interpreted Article 3 of the European Convention on Human Rights, which bans torture and inhuman or degrading treatment, by holding that whether ill-treatment attains the level of severity to violate Article 3 depends on the circumstances of every case, “such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health o the victim…..” The C.I.A. subjected detainees to prolonged and unnecessary sleep deprivation, as well as other “deprivations” or degradations, even when it became obvious that these practices were not necessary and did not yield projected results. In addition, it is unquestionable that the C.I.A. subjected detainees to multiple degrading practices at the same time, over weeks and months in some instances, against detainees with pre-existing medical conditions in several cases. The C.I.A.’s treatment of detainees amounted to torture under international law.
The Agency’s treatment of detainees amounted to torture under domestic law as well. 18 U.S.C. section 2340(1), enacted after the United States’ ratification of the Convention Against Torture, defines the act of torture as an “act committed b a person acting under the color of law specifically inteneded to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control.” The United States’ understanding of “torture” consists of the following:
“The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering….”
In addition, the United States’ reservation regarding the Convention’s obligation to prevent cruel, inhuman or degrading treatment or punishment provides that this language means “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
Despite the above-quoted understanding and reservation, it is clear that the C.I.A.’s treatment of detainees violated domestic law, because it amounted to torture, pursuant to the United States’ understanding of torture under section 2340(1).
Asking whether enhanced interrogation techniques, which amounted to torture under both international and domestic law, produced adequate results is thus the wrong question. Even if such interrogation techniques resulted in the capture and/or killing of thousands of terrorists in the process of plotting terrorist attacks against the United States (and, according to the Senate Intelligence Committee report, they clearly did not), such techniques would still be illegal, as well as immoral, inhumane and unethical. The United States as a world leader should never engage in them, and can and will find other ways to combat terrorism.
What the United States can and should do now is to embrace responsibility for past abuses by bringing those responsible for torture to justice. President Obama, most likely for political reasons, has stated that it was time to move on. But many others have, rightly so, called for prosecutions, both because the United States has a legal duty to do so under the Convention Against Torture, and because unless past violations are adequately punished, in the words of Human Rights Watch executive director, Kenneth Roth, “torture will remain a ‘policy option’ for future presidents.” Torture is illegal; it should not have been utilized by the C.I.A. in the past nor should it ever become a future practice or policy.
