is waterboarding prohibited by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?Originally Posted by red states rule
Banned
is waterboarding prohibited by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?
Super Minion
I've just been reading through that. Seems to me the problem is they don't specify by what parameters to measure:
any suffering? What about jail as punishment? Isn't that suffering? It would be to me.torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Seems even the UN has problems, asking the US delegation to define:
http://www.nytimes.com/2006/05/05/wo...gewanted=print
...
Terrorist suspects could pose a threat to security if allowed to meet with representatives of the International Committee of the Red Cross, as stipulated by the Geneva Conventions, Mr. Bellinger said.
The delegation from the four government departments did not include anyone from the Central Intelligence Agency. Mr. Bellinger said he was not authorized to talk about any intelligence activities that the Committee Against Torture inquired about in its report.
The committee said it had received evidence the United States "has established secret detention facilities, including on-board vessels, and holds unacknowledged detainees with no access to I.C.R.C., no notification of families, no oversight with regard to their treatment and, in most cases, no acknowledgment that they are even being held."
An expert from Senegal, Guibril Camara, said it was the committee's interpretation — not that of the United States — that would set the global definition of torture. "One of the parties is going to have to give way," Mr. Camara said. "And I think it's probably going to have to be you."
Other experts pressed the United States to be more explicit on Monday in defining torture. "Where would you put 'waterboarding' or other forms of inhuman treatment?" Xuexian Wang of China asked.
Mr. Bellinger did not go into detail about specific interrogation techniques used by American personnel, but said: "All components of the U.S. government are required to act in compliance with the law."
Senior Member
This from the outfit that has Cuba sitting on its Human Rights Council. Yes MM, libs like you bow before the UN and fell better letting them to decide how and when the US defends itself
Last edited by red states rule; 01-02-2008 at 06:51 AM.
Super Minion
Looks like I was more or less correct in seeing a problem with the UN Convention, which like most things coming from the UN leaves quite a bit of wiggle room, then again, it seems the Senate did add some caveats prior to signing:
I don't think I've seen MM bring up the McCain Amendment, which is actually more clear, (though not enough), then the UN Convention, though it too is addressed by McCarthy:... TORTURE AND “CID” UNDER OTHER AMERICAN AND INTERNATIONAL LAW
Still, torture and other forms of cruel, inhuman, and degrading treatment are prohibited under international law — in particular, under several human-rights treaties ratified by the United States. Under the supremacy clause, treaties are “the supreme Law of the Land.” With that understanding, it might be said that the Constitution speaks to torture. Nevertheless, had the unadorned Constitution prohibited torture, these treaties, as well as various anti-torture statutes enacted since 1994, would have been superfluous.
The Geneva Conventions prohibit torture but not in all circumstances. Recognizing that, human-rights activists pushed for the International Convention on Civil and Political Rights (ICCPR) and the U.N. Convention Against Torture and Cruel, Inhuman and Degrading Treatments (UNCAT), which were ratified by the U.S. in 1992 and 1994, respectively. Both forbid torture, and the UNCAT called for the passage of anti-torture legislation, which Congress promptly enacted.
Further, both the ICCPR and the UNCAT prohibit cruel, inhuman and degrading treatment (CID). Here, however, there is an important qualification. In consenting to both treaties, the Senate added a caveat: CID was to be understood in the U.S. as the cruel, inhuman and degrading treatment prohibited under the aforementioned Fifth, Eighth, and Fourteenth Amendments. That is, CID would be controlled by governing American constitutional law — not what activist NGOs, international law professors, and foreign regimes decided terms like “degrading treatment” might mean.
So what is torture? It really doesn’t matter what Turley or I think it may mean in the abstract. We are governed by law, and torture has a statutory definition. Section 2340 of the federal criminal code defines it as a government act “specifically intended to inflict severe physical or mental pain or suffering” (an exception is made for the execution of capital sentences).
The law does not explain what severe means. Because of 2002 OLC guidance (known infamously as the “torture memo”), much attention has been given to this question. The memo certainly defined the term too narrowly, suggesting that severe meant "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Nevertheless, even in conceding that this definition was too demanding when it withdrew the OLC memo in 2004, the Justice Department reaffirmed that the designation torture is reserved for practices causing “intense, lasting and heinous agony” (quoting a 2002 D.C. Circuit Court of Appeals case) which are so abominable that they stand apart from other condemnable forms of cruel, inhuman and degrading treatment.
With respect to mental pain or suffering, Section 2340 does tell us that severe “means prolonged mental harm” (emphasis added). It also provides examples of the type of prolonged behavior that is prohibited: inflicting or threatening to inflict severe pain or suffering; using or threatening to use mind-altering drugs; threatening imminent death; or threatening that a third person (say, a family member) of the victim will be subjected to equivalent cruelties....
http://article.nationalreview.com/pr...E3MWM1OWQ5MjA=
There is much more discussion of what the McCain Amendment does, doesn't, and maybe does here. I was going to excerpt but it would be too long and why should I do more than asked?...
IS WATERBOARDING A VIOLATION OF THE McCAIN AMENDMENT?
One might think the question whether waterboarding is torture should be academic. After all, cruel, inhuman and degrading treatment is also unlawful. Given that waterboarding is close enough to torture that reasonable minds can differ on whether it is torture, one would figure waterboarding must, a fortiori, qualify as CID. I believe that is certainly true the vast majority of the time. But the matter is not so cut and dried that we can responsibly say it is true all of the time. And the reason for this is that Congress, which has had countless opportunities to make simulated drowning illegal, has declined to do so.
In late 2005, after revelations about the “torture memo” and against the backdrop of the Abu Ghraib prisoner abuse scandal, Congress enacted the McCain Amendment as part of the Detainee Treatment Act (DTA). That Amendment eviscerates any contention (based on the theory that the Constitution does not have extra-territorial reach) that CID prohibitions do not apply overseas. The McCain Amendment, however, continued to define CID in accordance with the Fifth, Eighth and Fourteenth Amendments. As a result, one can argue that it does not undermine the contention that those protections apply only to civilian legal proceedings, not to the detention and interrogation of alien enemy combatants in wartime.
While this admittedly technical contention remains colorable, I doubt it would or should prevail. Whatever one thinks of Senator McCain’s amendment, it was indisputably a reaction to concerns over wartime detentions. It would be bizarre to think Congress went through such an exercise only to pass something that was irrelevant to the problem it sought to address. Nonetheless, it is noteworthy that, although waterboarding figured prominently in the McCain Amendment debate, Congress opted not to end any ambiguity over its legality; instead, it chose to stick with banning “cruel, inhuman and degrading treatment” — simulated drowning was not specified.
The consequence of this impossible vagueness was to grind interrogations to a halt. Indeed, some intelligence officers purchased litigation insurance, fearful that actions they’d taken based on Justice Department advice might nevertheless lead to investigations and ruinous legal expenses.
Meanwhile, the Supreme Court decided the Hamdan case, holding that the Geneva Conventions’ Common Article 3 — which the Court found to be incorporated into a statute, the Uniform Code of Military Justice — provided some protection for enemy combatants. The narrow issue in Hamdan was military commissions, not interrogations. Common Article 3, however, broadly prohibits not only irregular tribunals but also, among other things, “violence to life and person,” “torture,” “cruel treatment,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” So, the question naturally arose, did Common Article 3 now govern all detention and interrogation? And if so, who gets to decide what its terms mean? Would the United States be bound by, say, the International Court of Justice’s construction of such vague terms as “outrages upon personal dignity”?
Clarification was imperative for this confused landscape. Congress endeavored to provide it in 2006 when it passed the Military Commissions Act. The MCA made clear that issues of detention and interrogation would be controlled not by Common Article 3 but by American law: specifically, the McCain Amendment.
Furthermore, recognizing that our intelligence officers needed guidelines more precise than the vaporous injunction to avoid “cruel, inhuman and degrading” treatment, Congress amended the War Crimes Act (Section 2441 of Title 18, U.S. Code) to specify which “grave breaches” of international law could give rise to criminal prosecution. The list is long but once again (and despite the specter of waterboarding that hung over the debate) Congress elected to include “torture” and “cruel or inhumane treatment,” but not simulated drowning — or, in fact, degrading treatment, even though it, of course, is illegal under the McCain amendment....
Senior Member
When it comes to the UN, when trouble erupts, they will be standing on the sidelines doing nothing
Banned
I just asked you a simple question. I asked if waterboarding was considered torture in the UN Convention against Torture and Other Cruel or Inhuman Treatment or Punishment?
why can't you answer it?
Super Minion
Hey, I'm not for the UN, see my new avatar? But what about torture?
Senior Member
Love the avatar KathianneHey, I'm not for the UN, see my new avatar? But what about torture?
What torture? The US does not torture its captives. Libs rant on about waterbording but here are the facts
1) Waterbording has not been used in years
2) It was used 3 times - and each time the terrorist cracked in less then 1 mimute
3) Each time, the information gained stopped attacks and saved lives
When it comes to stopping attacks, I do not give a damn waht our people do to get the information. I would rather have the terrorist experience some discomfort rather then see footage on TV of dead bodies after a terrorist attack
Banned
willingness to piss on the constitution. traitor.
Senior Member
Keep coddling the terrorists MM - you would rather have dead bodies after the attack then stop the attack
I guess it would make better press conferences for Reid and Pelosi - and that is what matters most to you
Super Minion
I understand hyperbole from either side, but this was supposed to be a discussion. There were a lot of points made that may be argued from the UN Conventions, McCarthy's column, and the Volokh discussion. Can you find anything?
Banned
it is possible to uphold the constitution and still fight the war on terror.
It is despicable that you would think otherwise. traitor.
Super Minion
I tried to answer you, since no one else did. What is your take? I think a case can be made that the UN Conventions, as signed off on by US Senate, do not forbid waterboarding.
Senior Member
The main "torture" the left is whining about is waterbording
Here is an excellent article on the subject and what we gained by using it on one terrorist
The Point | In defense of waterboarding
By Mark Bowden
No one should be prosecuted for waterboarding Abu Zubaydah.
Several investigations are under way to find out who ordered the destruction of CIA interrogation videotapes, apparently an effort to cover up evidence of torture. Leaving aside for a moment the wisdom of destroying the tapes, I'd like to take a look at what was allegedly done to Zubaydah, and why.
When captured in Pakistan in 2002, Zubaydah was one of the world's most notorious terrorists. The 31-year-old Saudi had compiled in his young life 37 different aliases and was under a sentence of death in Jordan for a failed plot to blow up two hotels jammed with American and Israeli tourists. The evidence was not hearsay: Zubaydah was overheard on the phone planning the attacks, which were then thwarted. He was a key planner of the Sept. 11, 2001, attacks on the United States, was thought to be field commander of the attack that killed 17 U.S. sailors on the USS Cole, and was involved in planning a score of other terror attacks, successful and unsuccessful. He was considered to be a primary recruiter and manager of al-Qaeda training camps.
He was, in short, a highly successful, fully engaged, career mass murderer. Think back to those pictures of workers crouched in windows high up in the burning World Trade Center towers, choosing whether to jump to their death or be burned alive. This was in part Abu Zubaydah's handiwork.
At the time of his capture in 2002, just six months after the Sept. 11 attacks, there was strong reason to believe Zubaydah knew virtually the entire organizational structure and agenda of al-Qaeda around the world. He was supervising ongoing plots to kill hundreds if not thousands of people. He was, for obvious reasons, disinclined to share this knowledge. Subjected briefly to waterboarding - less than a minute, according to published reports - he became cooperative and provided information that, according to the government, resulted in preventing planned attacks and capturing other key al-Qaeda leaders.
In the six years that have passed since the Manhattan towers collapsed, we have gained (partly through the interrogation of men like Zubaydah) a much clearer understanding of al-Qaeda and the threat it poses. While the chance of further murderous attacks is always with us, it is fair to say few of us feel the same measure of alarm we did then. The diminishment of this threat is at least in part due to the heroic efforts of the CIA, the military, and allies around the world in targeting terrorist cells.
http://www.philly.com/inquirer/opini...rboarding.html
Banned
YOur articles certainly made that case. I remain unconvinced.... I think that tilting someone backwards on a board, and pour water into their mouth and nose with no certainty from the prisoner's perspective, that the water will ever stop - no certainty that drowning is not imminent - is cruel inhumane and degrading.... in the broadest sense of the words.
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