The Convention Against Torture

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Immigration 101 is a basic introduction to the immigration laws of the United States. It tracks my immigration law course at Hofstra University School of Law.

One of the most discussed human rights issues of the decade has been the use of torture by the United States. Much of the media has focused on whether the United States’ actions violated the Geneva Conventions and whether those agreement even applied to unlawful combatants, as the Bush administration characterized those it captured in its “War on Terror”. More pertinent to the discussion, though, is the Convention Against Torture (CAT).

Because the Convention Against Torture provides protection from deportation for those who face torture in their homelands, my colleague Professor Lauris Wren and I teach it as part of our class. But really, I teach it because some of my students will wind up in the government’s employ and I want to make sure sure they can never deny knowing the law relating to torture.

When I watch the TV, I see a lot of discussions about torture that focus on whether it is useful or not, and whether the people we are torturing are even the “right” people. This discussion misses the point for me, as it should for anyone who takes our laws seriously. The United States is a party to the Convention Against Torture and as such we are obligated to follow it.

What the Convention prohibits is fairly clear:

For the purposes of this Convention, 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.

Now, many of my fellow Americans accept that torture is illegal, unless they say, there is a really good reason for engaging in it. Well, torturers always have a good reason for engaging in torture. The torturer is typically trying to preserve a political system, or protect a portion of the population, or root out dangerous subversion. The drafters of the Convention Against Torture anticipated this when they wrote that:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Remember when Saddam Hussein was put on trial for his life? One of the charges against him was that he tortured villagers after there was an assassination attempt made on his life. Well, what could be a better reason to torture someone than to uncover a would-be assassin of a head of state? And yet, this was ruled to be no defense to torture.

The next question concerns who is responsible for torture. What if one of my students, after leaving my class of course, joins military intel and is ordered to torture? Surely the order would protect him from liability? Well, think again. Here is what the Convention says:

An order from a superior officer or a public authority may not be invoked as a justification of torture.

It says this because torture is not just ordered from on high. To be carried out, it requires the cooperation of dozens of underlings along the chain of command. If they refuse an order to torture, it likely will not be carried out. No Nuremberg defenses of “I was just following orders” are allowed here.

And punishment is not restricted only to the person who gives the order to torture and the person who carries it out. The Convention also prohibits an act by “any person which constitutes complicity or participation in torture.” So lawyers writing memos justifying torture may be liable.

And you can’t try to limit your guilt by having other countries do you dirty work for you. A country that is fastidious about using its own people to torture cannot simply send them to another country to be tortured.This sort of “rendition” is expressly prohibited by the Convention Against Torture:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Now you, along with my students, know what the Convention Against Torture says and you can never again claim ignorance of its absolute prohibition on torture.


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