Cruel, inhuman, or degrading treament

Interrogation techniques such as sexual humiliation don’t fall under the legal definition of torture, or under most people’s informal understanding of what torture is. They do, however, constitute degrading treatment, one of the three subcategories of the “cruel, inhuman or degrading treatment” banned by CAT.

As we have seen, the torture convention obligates parties to “undertake to prevent” CID, but it does not require criminalizing CID, and the United States has never made CID a crime. To be sure, CID violates common Article 3 of the Geneva Conventions, and that made it a US war crime. But, in 2006 the US Congress decriminalized humiliating and degrading treatment of detainees.

The requirement to “undertake to prevent” CID nevertheless remains an international legal obligation of the United States; and, while the duties it entails are vague, the obligation surely rules out deliberately engaging in CID. However, at his confirmation hearing for Attorney General, Alberto Gonzales offered a startling legal theory about why that obligation does not apply. When the US Senate ratified the torture convention, Gonzales explained, it added the reservation that CID means the cruel, inhuman, or degrading treatment forbidden by the Constitution’s Eighth Amendment ban on cruel and unusual punishments and Fifth Amendment ban on conduct that shocks the conscience. But the Eighth Amendment applies only to punish­ment, and the Supreme Court has held, in other unrelated contexts, that the Fifth Amendment does not protect aliens outside US territory. Therefore, in Gonzales’s words, “the Department of Justice has concluded that...

The argument is startling because it seems obvious that the Senate’s reservation intended nothing of the sort. Before Gonzales’s argument mud­died the waters, it was perfectly clear that the Senate’s reservation aimed to define CAT’s concept of CID by using the substantive standards embodied in the constitutional rights, not to tie CAT to their jurisdictional reach. After Gonzales’s testimony, three Democratic senators wrote an incredulous letter to the Justice Department requesting all legal opinions on the subject within three days. Justice ignored the request until two months later, after Gonzales was safely confirmed as Attorney General. Eventually the Department responded in a three-page letter, which refused to release OLC opinions but cited legal authority to back up Gonzales, most prominently some 1990 comments to the Senate by Abraham Sofaer, the State Department’s legal advisor during debate over the ratification of CAT.^[371] Like Gonzales, Sofaer had emphasized that “we would limit our obligations under this Convention to the proscriptions already covered in our own Constitution.” If constitu­tional rights against CID do not apply to aliens abroad, then CAT’s ban on CID cannot apply abroad.

But this was not at all what he or the Senate meant, according to Sofaer. In a letter to Senator Patrick Leahy disavowing the Gonzales interpretation, Sofaer explained that the purpose of the reservation was to ensure that the same standards for CID would apply outside the United States as apply inside - just the opposite of Gonzales’s conclusion.^[372] The point was to define CID, not to create a gaping geographical loophole.^[373] Apparently, however, the Administration desperately wanted the geographical loophole. When Senator John McCain (a Vietnam torture victim) introduced legislation to close the loophole, the administration lobbied against it fiercely, threat­ening to veto major legislation rather than accede to banning CID by US forces abroad. When McCain’s law nevertheless swept the Congress with veto-proof majorities, the Administration extracted a concession: federal courts could no longer hear Guantanamo cases. CID might be illegal, but its Guantanamo victims would no longer have any recourse against it. And, as the final touch, President Bush attached a signing statement to McCain’s CID ban implying a constitutional right to ignore it.