Sunday, December 11, 2005

It's not torture, it's European

One of the most persistent talking points on the pro-torture American right is the claim that the European Court of Human Rights had declared that a list of abusive techniques applied by British security forces to internees in Northern Ireland were not torture -- and therefore that the CIA would be OK doing something similar. This claim was part of the original infamous torture memos, and although the White House has since disowned that memo, a replacement memo was developed which has not been publicly released.

But the point lives on. It surfaced again in Saturday's Wall Street Journal in an article (subs req'd) by David Rivkin and Lee Casey. The same two had an article in Friday's European edition criticising the Condi-bashers in Europe, so they clearly have decided to set up shop as the print equivalent of Powerline -- flailing defence of whatever it is that George W. Bush wants to do. So anyway, the Irish case:

[US] law also forbids "cruel, inhuman or degrading" treatment, but these terms are similarly ill-defined by statute. The leading international judicial decision is a 1977 European Court of Human Rights opinion, ruling that Britain's use of five stress methods against the IRA, including "wall standing," hooding, sleep deprivation, reduced rations and constant loud noise, was not torture and constituted cruel and inhuman treatment only if they were used together in combination.

which comes pretty close to the "joke" routine on The Daily Show the other day, claiming that something can only be "cruel, inhuman and degrading" if it's all three at once. But there are important details about this case usually omitted from the pro-torture accounts of it. In particular, the UK government had long since conceded the point that the techniques were against international convention (and probably their own law) before the decision was handed down. Here's the key passage in the judgement [accessible via Wikipedia]:

On 16 November 1971, the British Home Secretary announced that a further Committee had been set up under the chairmanship of Lord Parker of Waddington to consider "whether, and if so in what respects, the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment".

... Both the majority and the minority [reports] considered the methods to be illegal under domestic law, although the majority confined their view to English law and to "some if not all the techniques". The Parker report was published on 2 March 1972. On the same day, the Prime Minister [Ted Heath] stated in Parliament:

"[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques ... will not be used in future as an aid to interrogation." He further declared:

"The statement that I have made covers all future circumstances. If a Government did decide ... that additional techniques were required for interrogation, then I think that ... they would probably have to come to the House and ask for the powers to do it."

i.e regardless of the case itself, the techniques likely broke domestic law and even in an emergency would have to be explicitly approved by Parliament. And there's more. The case was referred to again last week in the Law Lords' ruling that evidence obtained under torture overseas is not admissible in UK courts:

Lord Hoffman: What is torture and who has the burden of proving that it has been used? In Ireland v United Kingdom (1978) 2 EHRR 25 the European Court delicately refrained from characterising various interrogation techniques used by the British authorities in Northern Ireland as torture but nevertheless held them to be “inhuman treatment”. The distinction did not matter because in either case there was a breach of article 3 of the Convention [on human rights].

For my part, I would be content for the common law to accept the definition of torture which Parliament adopted in section 134 of the Criminal Justice Act 1988, namely, the infliction of severe pain or suffering on someone by a public official in the performance or purported performance of his official duties. That would in my opinion include the kind of treatment characterised as inhuman by the European Court of Human Rights in Ireland v United Kingdom but would not include all treatment which that court has held to contravene article 3.

So the bar has only risen since Ted Heath's prohibition of the techniques. Most importantly, the five techniques do not include the one that the pro-torture right don't want to talk about: waterboarding. The spinners do leave themselves one back door to get waterboarding in, with just one snag -- it would have to be part of basic training on regular recruits as well:

Where, however, to draw the lines in a manner that will ensure clear standards for all American interrogators? One alternative would be to regulate both the methods and intensity of interrogations with reference to the "stress" methods used by American forces as part of basic and/or advanced training courses. Every recruit into the armed services is subjected to a stress program which is purposefully designed to break down civilian attitudes, remaking the person into a warrior.

Programs differ among the services, but all involve isolation from the outside world, some sleep deprivation, and a rigorous level of physical activity which can, and does, result in injury -- sometimes serious injury or death. Punishments often involve additional exercises that can, to put it mildly, be painful. (The Marines call it "incentive physical training" or "quarter-decking.") Just as challenging, of course, is the psychological component, which can involve the use of insulting and humiliating language and deliberate efforts to shame an individual before his or her fellows -- particularly effective on teenagers and very young adults.

Our military may well bristle at any analogy between basic training and stressful interrogation methods, and it would be obscene to compare dedicated drill instructors to the thugs of Abu Ghraib. However, establishing the type of stress methods routinely used in military training as the standard for interrogations offers an objective measure that should be familiar to every interrogator.

Would these exercises make it to the Army's TV recruiting commercials?

UPDATE 10 OCTOBER 2007: The talking point is back again (subs. req'd; alt. free link)

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