The background
To understand the work of the torture lawyers, it is crucial to understand two pieces of legal background: the worldwide criminalization of torture, and the overall movement of legal thought by the United States government in the wake of September 11, 2001.
Governments have tortured people, often with unimaginable cruelty, for as long as history has been recorded. By comparison with the millennia-long “festival of cruelty” (Nietzsche), efforts to ban torture are of recent vintage. The eighteenth-century penologist Beccaria (widely read and admired by Americans in the 18th century) was among the first to denounce torture, both as a form of punishment and as a method for extracting confessions; and European states legally abolished torture in the nineteenth century.[296] Legal abolition did not necessarily mean real abolition: Germany practiced torture throughout the Third Reich, France tortured terrorists and revolutionaries in Algeria during the 1950s and 1960s, and the United Kingdom engaged in “cruel and degrading” treatment of IRA suspects until the European Court of Human Rights ordered it to stop in 1977. The phenomenon is worldwide: states abolish and criminalize torture, but scores of states, including democracies, engage in it anyway. Nevertheless, the legal abolition of torture marked a crucial step toward whatever practical abolition has followed; and it drove underground whatever torture persists in a great many states.
The post-World War II human rights revolution contributed to the legal abolition of torture. The Nuremberg trials declared torture inflicted in attacks on civilian populations to be a crime against humanity, and the 1949 Geneva Conventions not only banned the torture of captives in international armed conflicts, they declared torture to be a “grave breach” of the Conventions, which parties are required to criminalize.
Alongside Geneva’s antitorture rules for international armed conflicts, Article 3 of Geneva (called “common Article 3” because it appears in all four Geneva Conventions) prohibits mistreating captives in armed conflicts “not of an international character” - paradigmatically, civil wars, which throughout history have provoked savage repressions.8 Common Article 3 is particularly remarkable because prohibitions on what sovereign states can do within their own territory in times of crisis are few and far between. And US law classifies the torture and cruel treatment forbidden by common Article 3, along with grave breaches of Geneva, as war crimes carrying a potential death sentence.9 In addition, the United States, together with almost 150 other states, has ratified the International Covenant on Civil and Political Rights, which flatly prohibits torture and inhumane treatment.108 The Nuremberg Charter did not in those terms declare torture a crime against humanity; but torture fell under the rubric of “inhumane acts” in the list of crimes against humanity found in Article 6(c); furthermore, Allied Control Council Law No. 10, the occupying powers’ domesticlaw version of the Nuremberg Charter used in other postwar trials, did name torture (along with rape and imprisonment) as a crime against humanity. The Third and Fourth Geneva Conventions include “torture or inhuman treatment” among the so-called “grave breaches” that must be criminalized: see Geneva Convention III (on the rights of POWs), articles 129-30, and Geneva Convention IV (on the rights of civilians), articles 146-47. Article 3 common to all four Geneva Conventions prohibits “mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”
9 18 U.S.C. § 2441. Until the Military Commissions Act of 2006 (MCA), this section declared all violations of common Article 3 to be war crimes.
The MCA decriminalized humiliating and degrading treatment, along with the practice of subjecting detainees to sentences and punishments resulting from unfair trials - both common Article 3 violations, but now no longer federal war crimes. Indeed, the MCA retroactively decriminalizes these violations back to 1997. The reason for decriminalizing these two Article 3 violations is, unfortunately, rather obvious. The MCA establishes military commissions to try detainees, and apparently its drafters wanted to insulate those who establish and serve on the commissions from potential criminal liability if a federal court ever finds the commissions unfair. (Decriminalizing the subjection of detainees to unfair trials is a noteworthy step, because the United States convicted and punished Japanese officers after World War II for illegitimately stripping downed US airmen of Geneva Convention status, trying them unfairly, and executing them. See Trial of Lieutenant-General Shigeru Sawada and Three Others, United States Military Commission, Shanghai (1946), in 5 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 1 (1948).) And, as we shall see below, US interrogators employed humiliation tactics in interrogating Guantanamo detainees. After the US Supreme Court found that common Article 3 applies to detainees in the War on Terror, the awkward result was that, without retroactive decriminalization, all those who engaged in humiliation tactics, together with officials who authorized the use of such tactics, were federal war criminals.10 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/ 6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, Article 7. The United States, however, does not believe that the ICCPR applies outside US jurisdiction, or during armed conflicts. For a careful argument defending this point of view, see Michael J.
Dennis, Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict and Military Occupation, 99 A.J.I.L. 119 (2005). For the alternative point of view, see United Nations Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 21 April 2004, CCPR∕C∕74∕CRP.4∕Rev.6. (General Comments).The most decisive step in the legal prohibition of torture took place in 1987, when the international Convention Against Torture (CAT) entered into force. Today, 144 states have joined CAT, and another 74 have signed. Several features of CAT turn out to be particularly important for understanding the work of the torture lawyers. First, CAT provides a legal definition of official torture as the intentional infliction of severe physical or mental pain or suffering on someone, under official auspices or instigation (Article 1). This was the definition that the Bybee Memo had to loophole its way around. CAT requires its parties to take effective steps to prevent torture on territories within their jurisdiction (Article 2(1)), and forbids them from extraditing, expelling, or returning people to countries where they are likely to face torture (Article 3). Parties must criminalize torture (Article 4), create jurisdiction to try foreign torturers in their custody (Article 5), and create the means for torture victims to obtain compensation (Article 14). A party must also “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” (Article 16) - a requirement that the torture lawyers loopholed with tenacious ingenuity.
Strikingly, CAT holds that “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” (Article 2(2)).
What makes this article striking, of course, is its rejection of the most common excuse states offer when they torture: dire emergency. Article 2(2) commits the parties to CAT to the understanding that the prohibition on torture is not merely a fair-weather prohibition. It holds in times of storm and stress, and by ratifying the Convention, states agree to forgo torture even in “new paradigm” wars.[297] [298] [299] [300] [301] [302] [303] With the worldwide adoption of CAT, torture became an international crime.The United States signed CAT in 1988, and the Senate ratified it in 1994. However, the Senate attached declarations and reservations to CAT, including a declaration that none of its substantive articles is self-executing. That means the articles do not take effect within the United States until Congress implements them with appropriate legislation. Congress did implement several of the articles. Most significantly, it passed a pair of criminal statutes, defining torture along the lines laid down by CAT and making torture outside the United States a serious federal felony.12
What about torture within the United States? Long before CAT, US domestic law outlawed torture, although not by name. The US Constitution forbids cruel and unusual punishment, and the Supreme Court held that official conduct that “shocks the conscience” violates the constitutional guarantee of due process of law.13 Ordinary criminal prohibitions on assault and mayhem straightforwardly prohibit torture, and US military law contains parallel prohibitions. When foreign victims sued their home-state torturers in US courts, the courts found no difficulty in denouncing “the dastardly and totally inhuman act of torture.”14 If police investigators sometimes continue to give suspects the third degree in the back rooms of station houses, no one prior to the torture memos doubted that this broke the law; the 1997 torture of Abner Louima by New York City police officers led to a thirty-year sentence for the ringleader.
If US agents abroad engaged in torture, nobody admitted it; and when federal agents allegedly tortured a criminal suspect while bringing him to the United States, the court held that he could not be tried if the allegations were true - a rare exception to the longstanding rule of the US courts that people brought for trial illegally can still stand trial.15This is not to say that, when it comes to torture, the United States was squeaky clean. In 1996, the Pentagon admitted that the School of the Americas, in Fort Benning, Georgia- a US-run training school for Latin American military forces - had for years used instructional manuals that advocated torture; and there have been many allegations over the years of US “black ops” involving torture.16 Nevertheless, until the torture lawyers began making the legal world safe for brutal interrogations, the United States was one of the leading campaigners in the worldwide effort to place torture beyond the pale of permissibility. Afterward, although the US government insists it has not backed down an iota in rejecting torture, the protestations ring hollow, and everyone understands that US officials can proclaim them only because the torture lawyers have twisted words like “torture,” “cruel, inhuman, and degrading,” and “humane” until they no longer mean what they say.17 [304]