Torture Is Already Illegal, So Why “Ban” It?

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The US Senate voted by a high margin to ban the use of torture on June 16. The bill is an amendment to the 2016 National Defense Authorization Act, an annual defense policy measure. It passed 78-21 but the entire bill currently remains in the Senate. Leading the effort was Senate Armed Services Committee Chairman John McCain (R-Arizona) who coauthored the bill with Senate Intelligence Committee Vice Chair Dianne Feinstein (D-California). The bill is a departure from the CIA’s torture program during the Bush administration. However, it is also a redundant measure: Torture is already illegal under US and international law.

Under the CIA torture program, the US government snatched over 100 people it suspected were terrorists from various countries like Afghanistan, Pakistan and Mauritania, and detained them in numerous secret prisons around the world. They were subjected to numerous acts of torture, such as waterboarding, sexual abuse, anal rape, stress positions, sleep deprivation, beatings and wall slamming. While the program was ineffective in gathering useful intelligence, it was useful (indeed, its key purpose was) for exploitation: namely, to elicit false confessions that were used to justify the Iraq war and turn some detainees into informants.

US domestic law already prohibits torture, the punishment for which is either a maximum of 20 years in prison or a fine, or both. If someone dies as a result of torture, the perpetrator gets the death penalty or a life sentence. US courts’ jurisdiction in this matter applies to any US national or if “the alleged offender is present in the United States.”

Torture also violates international law. The UN Convention Against Torture explicitly prohibits torture. It even states, “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,” and adds, “An order from a superior officer or a public authority may not be invoked as a justification of torture.” The United States signed that treaty in 1988 and ratified it in 1994, so it is bound by it.

Moreover, torture violates customary international law, which, according to the International Court of Justice Statute, is “a general practice accepted as law.” The prohibition against torture is established under customary international law as jus cogens (Latin for “compelling law”), also called a “peremptory norm,” which is a principle under international law that forbids any deviation. As Human Rights Watch explains, jus cogens “has the highest standing in customary law and is so fundamental as to supersede all other treaties and customary laws (except laws that are also jus cogens). Criminal acts that are jus cogens are subject to universal jurisdiction, meaning that any state can exercise its jurisdiction, regardless of where the crime took place, the nationality of the perpetrator or the nationality of the victim.”

Walter Ruiz, defense lawyer for Mustafa al-Hawsawi, a defendant in the 9/11 case and Guantánamo detainee who was held and tortured in CIA black sites, clarified the reach of the Convention Against Torture in a conversation with Truthout. He explained that the convention is “a far-reaching international document that brings everyone and all nations together to affirm that torture is, in fact, illegal. So now they’re passing a bill that affirms exactly what has always been the case? As if to say, before, it wasn’t illegal? It’s nonsense. Of course it was illegal then and it’s illegal now.”

There’s nothing wrong with the passage of the Senate bill, according to Ruiz; he calls it a “nice, positive public affirmation of the principle.” However, he says, we must remember that it does not do anything new, and that the law prohibited torture during the thick of the “war on terror,” as well.

“[The bill] doesn’t change what has always been the case,” Ruiz said. “And it has always been the case in 2000 and 2001, 2002, 2003, when these things were happened by US-sponsored actors and by US government agents, as well.”

Ruiz’s team has argued in the Guantánamo military commission hearings that torture violates international law.

Other Forms of Torture

The Guardian recently reported that the “McCain-Feinstein amendment codifies an existing ban on torture introduced by Obama shortly after he was installed in the White House in 2009.” That order “restricts all government employees, including CIA agents, to only use the techniques specified in the Army Field Manual.” Yet former Air Force intelligence officer and SERE (Survival, Evasion, Resistance and Escape) instructor Michael Kearns told Truthout, “That manual allows torturous acts like sleep deprivation.”

The permissions that Kearns refers to are included in the Army Field Manual’s Appendix M. While there are protections against certain acts of torture, Appendix M explicitly allows others, such as separation and sleep deprivation for so-called “unlawful enemy combatants.” The manual states that physical separation “involves removing the detainee from other detainees and their environment,” while a “field expedient method” of separation using “goggles or blindfolds and earmuffs” can be used to “generate a perception of separation” if physical separation is not feasible. According to the manual, “separation” is intended to prevent detainees from communicating with each other, suppress resistance to interrogation, “prolong the shock of capture” and “foster a feeling of futility.” This is all done while ostensibly still complying with prohibitions against torture and ill treatment.

The manual makes several linguistic contortions to say that their form of separation is humane and not a form of isolation. However, both the Committee Against Torture and Just Security, a US national security law forum based at New York University School of Law, argued that the manual’s separation technique is no different than isolation or solitary confinement, which is widely regarded as a form of torture and ill treatment by human rights groups and the international community. Isolation can lead to several harmful psychological effects, such as anxiety, depression, anger, paranoia, memory loss, disorientation, hallucinations, self-mutilation and suicide.

Appendix M also states that isolation “must not preclude the detainee from getting four hours of continuous sleep every 24 hours.” However, the Committee Against Torture notes that four hours of sleep is not enough, especially over the course of long periods of time. It says, “Such provision applicable over an initial period of 30 days, which is renewable, amounts to authorizing sleep deprivation – a form of ill-treatment.”

Solitary confinement also occurs in US domestic prisons. Of the over 2.4 million people in prison throughout the United States, around 80,000 are held in solitary confinement. They are confined in solitary cells for 22 to 24 hours a day. Many people held in solitary confinement are mentally ill and the isolation makes their illness worse. In March 2014, Michael Anthony Kerr, a 54-year-old Black man and mentally ill prisoner who was held in solitary confinement at a North Carolina prison for 35 days, died in a prison van. Kerr had schizoaffective disorder, a mental illness that has symptoms of schizophrenia and bipolar disorder, and was not treated in prison. A September 2014 autopsy revealed that Kerr died of thirst, but did not determine how he became dehydrated. Other forms of abuse and torture by guards occur regularly in US prisons, including sexual abuse and rape, coercion, beatings, choking, wall slamming and stunning with electronic devices.

Ruiz also pointed out that indefinite detention – detaining people for a prolonged period of time without charge or trial – is a form of torture. In an interview with HuffPost Live, Kristine Huskey, a Guantánamo defense lawyer who worked on the Omar Khadr case, noted that a report by Physicians for Human Rights “looked at the consequences of indefinite detention on individuals. And there’s an actual physical harm, and in many cases its severe: hypertension, chronic and acute stress … problems to the nervous system … PTSD.” She added that there are instances where “indefinite detention can rise to the level of torture.” Moreover, indefinite detention also violates human rights and international law. Article 9(1) of the International Covenant on Civil and Political Rights – which the US is also a party to – states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

However, in May 2009, just months after entering office, President Obama acknowledged that some Guantánamo prisoners would continue to be detained indefinitely without charge or trial. That policy has not changed. Currently, there are 116 prisoners remaining in Guantánamo. Of those, 51 are cleared for release and over three dozen are recommended for indefinite detention by the Obama administration.

Despite the Senate’s passage of the torture ban, it is important to remember that torture is already illegal under US and international law. It is also crucial to scrutinize what is defined as torture, considering that certain forms of torture remain in active practice, including solitary confinement, sleep deprivation and indefinite detention.

As Ruiz pointed out, the Senate’s torture ban “doesn’t change anything … It’s stating the obvious.”