I'd like to bring your attention to some precedents which may help inform the debates on the interrogation techniques approved by the previous administration. You may also conclude that techniques currently allowed still breach International Law, even if the President is correct in saying "we do not torture".
First is important to understand that, for many offences, there are degrees of severity of a crime. Take murder - in many of the United States, a distinction is made between deliberate premeditation and a killing on the spur of the moment. In the USA these may be designated "first degree" or "second degree" murder although in England this is not used and there is a separate offence of manslaughter.
In the same way there is an offense under International Law of inflicting cruel and unusual treatment (I will not call it punishment as no crime has been proven to "punish"). If sufficiently severe, that treatment then becomes torture. Under its treaty obligations, the USA is required to make laws forbidding and punishing both. It is also required to promptly investigate claims by victims and to prosecute any crime found.
Any civilized nation will, by itself, have made "cruel and unusual punishment", a phrase Americans will be familiar with, illegal within its domestic laws. Some, however, have sought to justify it on grounds that they were at war or in imminent danger (the so-called "ticking time bomb" scenario) It had also been excused on the grounds the offense took place outside the country's borders or other reasons.
In 1948 countries came together in the United Nations Universal Declaration of Human Rights to outlaw torture. In 1984 they codified this to delare all torture illegal under any circumstances by signing the "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". The wording of the Convention makes no distiction between the two and defines torture as (in part)
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
You will note that, contrary to the arguments used to justify the Bush orders, there is no mention of the pain or suffering being life-threatening. It is not the purpose of such treaties to list all of the actions it deems illegal, if only to not give the ingeneous the devise novel means of inflicting pain. However, because of the international nature of such crimes, precedents in any courts should be taken into account.
We must therefore now reference a decision by the European Court of Human Rights (ECHR) which drew a fine line between "torture" and "cruel and unusual treatment". At the time, access to the Court by individuals was restricted so the Government of Ireland took the United Kingdom to the ECHR on behalf of a number of people interrogated by the Roayl Ulster Constabulary in the early 1970s. They had employed what became known as the "five techniques". These were:
# a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers";
# (b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;
# (c) subjection to noise: pending their interrogations, holding the 0detainees in a room where there was a continuous loud and hissing noise;
# (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
# (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.
The ECHR was asked to make a ruling that these breeched a section of the European Convention on Human Rights which has similar prohibitions on torture as the Universal Declaration. They ruled that
- ... Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. ...
- The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of [the European Convention on Human Rights] Article 3 (art. 3).
Two things to note. First, the ECHR has indicated they consider the European Convention a living document so, in the same way Jim Crow laws in the USA were at one time thought Constitutional, what had previously been ruled "cruel and unusual punishment" might in future be ruled "torture". Second, unlike the convoluted arguments of the Bush regime, outrages against personal dignity which fell short of (their definition of) torture were still forbidden.
So in formulating charges against individuals accused of such crimes, it is essential that they not be given an opportunity to argue "it was not torture, it was only ..."
We ought to now look at the "Nuremberg defense" and perhaps why the Obama administration has decided not to prosecute those who stuck to the letter of their instructions. In US and many other countries, members of the armed forces have the duty to obey legal orders. The Nuremberg principles gives them the right, or rather the obligation, to disobey orders which would result in them committing War Crimes or Crimes Against Humanity.
Before the Gulf War, the Joint Chiefs of Defence Staff in the UK made just such a refusal. Their understanding was that the attack would be illegal without a specific authority of the United Nations Security Council. Before they passed on the orders and thereby laying open ordinary soldiers to War Crimes charges, they required that they be shown the war was legal. You may recall this was one revelations in the "Downing Street Memos" affair. The Joint Chiefs required the Blair government to show that the war would be legal. Lord Goldsmith who, although a member of the government, should have given independent advice as Attorney General, at first submitted a long legal Opinion on March 7, 2003 which set forth the arguments but which still failed to give an absolute assurance that the war was legal. It expressed doubt whether a war would be legal without a further UNSC resolution. Then on March 17 he wrote a second, much shorter, Opinion in which those doubts had been removed. This satisfied the Joint Chiefs that they could legally issue orders to attack Iraq.
A defendant facing a charge for committing acts permitted in the CIA orders might therefore very well successfully argue that, despite their personal misgivings, the advice to President Bush from the most senior law officer in the US administration had misled them. The incorrect advice led them to believe that their orders or interrogation instructions were legal. Thus they were not only "just following orders", they were following orders they had every reason to believe were legal.
So if, as President Obama appears to be signalling, going after the "little fish" would be difficult, what about the "big fish" in Washington? Well, of course, they will justifiably state that they did not carry out the acts. On the other hand, Article 4.1 of the Torture Convention provides that signatories must make torture a crime under their domestic laws and
The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
I would submit that senior government officials inventing their definitions of torture which were less restrictive than previously constitutes complicity. In addition making a disctinction between torture and lesser treatment and then declaring that because it was just cruel it should not be illegal is similarly complicity or incitement. If these are not illegal acts, the USA has failed in its duties under Section 2.1 to "take effective legislative, administrative, judicial or other measures to prevent acts of torture".
Under the Torture Convention (and taking into account rulings in the case of Augusto Pinochet), if the USA fails to prosecute those against who there is a prima face case that they committed torture, the countries who nationals are the victims may apply for extradition. Under the Convention, this cannot be refused unless there are reasonable reasons to believe the accused will be tortured. After that, the offense becomes subject to "universal juresdiction" and any country an accused visits can arrest and, at the end of the day, prosecute them.