Friday, January 28, 2005

Torts over Torture

Julian --

What we don't know -- about the full extent of the United States' abuse and/or torture of detainees and rendition of detainees to third countries -- is a lot. For this reason, I have specifically avoided weighing in on some of the broader questions about compliance with the Torture Convention, at least until I have read the government reports on this question. Of those who have followed the available primary reporting more closely, Andrew Sullivan has been a consistent voice of sanity, reason and yes, morality, on the abuse questions. (And he supported the Iraq invasion.) His excellent review of the Schlesinger report and Mark Danner's book in last Sunday's NY Times Book Review is a must read for anyone contemplating the political and moral implications of the abuse scandals. (He also has an on-line q and a here.) I also find convincing Marty Lederman's cogent and compelling analysis from which he concludes, based on what little information is currently available, violations of law have occurred.

With that as background, I have a few specific thoughts in response to your post on lawsuits by former Guantanamo and Abu Ghraib detainees.

1) "Strangely enough,"? It appears to me not at all strange, but rather quite predictable that the United States and certain officials are finding themselves subject to tort suits alleging violations of international law. After all, the government itself has provided mounting evidence – including guilty pleas and convictions of the perpetrators -- that, in fact, these violations have occurred. And my guess is that the government will quietly settle at least some of these suits; a sympathetic jury may not be required.

2) Do you think it is at all relevant to any legal or political analysis that the individuals who are alleging abuse “were really innocent?” The Torture Convention defines torture as:

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.

The US Torture Statute (18 USC 2340) is similar:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

At no place in either the convention or statute does it state that these protections apply only to those who are “really innocent.” That's the point. Governments are not permitted to torture people on the grounds that they are bad guys or evil-doers. Even the infamous Bybee Memo did not try to make this distinction. Are you arguing, notwithstanding the law, that only "innocent" victims of abuse should be awarded civil damages? Or are you making an implicit political or moral argument in favor of abusing those that are not "really innocent"?

3) In an earlier post discussing the Acree case, you argued that the existence or non-existence of civil remedies for abuse of American POWs is likely to have little effect on how we (or our enemies) conduct ourselves in war. I tend to agree with that. So what is different here that leads you to conclude that the availability of civil remedies for abused detainees will have an "effect on an aggressive war on terrorism?"

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