The whole point of Geneva and the UN Convention and US domestic law is that the infliction of "severe mental or physical pain or suffering" to extract confessions is illegal under any circumstances, especially military emergencies. Anything that comes anywhere near this kind of treatment is barred. Much that falls short of torture is barred as well. Categorically. The expansiveness of the law is not the same thing as vagueness. It is a declaration that this is a third rail never to be gone near.
Somehow, no one had this debate about the lack of legal clarity about torture or inhumane treatment in the US before 2002. No one. Why? Because it was unthinkable.
What changed is that for the first time in American history a president of the United States chose to cross the Rubicon and under his sole and secret authority decided to torture prisoners under the mistaken belief that this was a way to get accurate intelligence. He did this not in the classic ticking nuclear bomb scenario as an emergency exception to the clear rule - but as an ongoing program with respect to individuals seized with no due process, innocent and guilty, in a war without end. This was not a close or even faintly ambiguous legal call.
Unfortunately, Andrew is, in this case, wrong. The legality of torture is very vague indeed these days... and the Republicans are still working to keep it that way.
In fact, the Republicans browbeat the Democrats into withdrawing an amendment to a spending bill which would have clearly criminalized specific tortures and set terms of imprisonment for the crime:
House Republicans were still hammering away at Democrats on Friday, one day after pressuring the majority to withdraw a controversial amendment to an intelligence funding bill that would have criminally punished intelligence officers for conducting harsh interrogations.
. . .
Earlier this week, the House Rules Committee added several amendments to the intelligence funding bill, including an 11-page provision that specifies criminal penalties for "any officer or employee of the intelligence community who, in the course of or in anticipation of a covered interrogation, knowingly commits, attempts to commit, or conspires to commit an act of cruel, inhuman, or degrading treatment."
The acts defined in the amendment include beatings, electric shock, waterboarding, deprivation of food, water or sleep and violations of the suspects religious beliefs. The intelligence officers would face up to 15 years in prison or life behind bars if the detainee dies.
When Republicans discovered the amendment Thursday during floor debate on the overall bill, they went on the offense.
(Texas Republican Mac) Thornberry said it was a "topsy-turvy land where we forget who the good guys are, who are trying to keep us safe, and who the bad guys are."
Rep. Michael Rogers, R-Michigan, said the amendment is too vague, failing to define such things as what constitutes lack of sleep or an infringement on religious beliefs. He maintained that it "will absolutely freeze the intelligence community's ability to go out and get information that they need."
. . .
After the provision was pulled, Jim McDermott, D-Washington, explained that his amendment "would have expanded upon the president's Executive Order to clearly define what constitutes cruel, inhuman or degrading interrogation so that it is unmistakable what kinds of techniques are unacceptable."
So why did the Democrats decide to strike the amendment? . . . (Republican ranking member of the House Intelligence Committee Peter) Hoekstra said the Democrats did not have enough votes within their own party to pass the bill.
That last sentence is almost certainly true... and depressing. Certainly Obama did not lift a finger in defense of this amendment, or anything like it. Obama has never called for the repeal of the Military Commissions Act of 2006, which among its provisions gives the President sole and exclusive power both to define what torture is and to prevent any federal official from being prosecuted for torture.
Obama's sole gesture towards ending torture was to overturn the executive orders of George W. Bush and order torture stopped- a measure which can, with a single stroke of a pen, be undone by any president who follows him. In every other respect Obama has acted to preserve torture- principally by preserving those who ordered it from any consequences for their actions.
But Obama's utter lack of leadership on making torture unambiguously illegal again does not excuse the Democratic leadership in the House. This vote should have happened. Every Congressperson should have been put on the record as clearly pro-torture or anti-torture.
Instead the Democrats chickened out.
There are only three Democrats who come out of this looking good. Jim McDermott authored the amendment- at least he made the attempt. Silvestre Reyes (of Texas- hooray, we're not all evil pro-torture bastards!) and Jan Schakowsky at least tried to defend it- when no other Democrats would. (Granted, Reyes was almost certainly the one who ordered the amendment's withdrawal, so he loses points there.)
But certainly every Democrat on the Intelligence Committee, if not the whole damn Congress, who remained silent when this went on deserves our utter contempt.
And torture, for all practical purposes, remains legal in the United States.