Friday, October 07, 2005

"Torture and the War on Terror": A Symposium with Even More Discussion of Detainee Interrogation Policies

I have been travelling today, so I don't have much more energy left to respond to Peggy's post, most of which I agree with anyway. Let me just say that I think the somewhat sketchy news reports on the actual substance of the legislation passed by the Senate may have misled Peggy on the scope of the Senate's amendments. As I understand it, the legislation has two components: (1) It would require the military to adhere to the Army Field Manual; (2) It would require all U.S. personnel, including non-military personnel such as those in the intelligence agencies, to avoid "cruel, inhuman, and degrading" treatment of detainees held in U.S. custody overseas. Importantly, the "cruel, inhuman, degrading" language has been understood by the U.S. to coincide with the Eighth Amendment's ban on cruel and unusual punishment. But it is possible that the legislation might be interpreted to incorporate international standards of "cruel, inhuman, and degrading" which go beyond what the Eighth Amendment requires. So the legislation may sweep quite broadly.

There is obviously lots more to say about this topic, which is why I am currently in Cleveland at Case Western Reserve School of Law's symposium on "Torture and the War on Terror." (a webcast can be found here). Our topic, not surprisingly, is treatment of detainees held by the U.S. in the war on terrorism. Lots of interesting scholars, advocates, and practitioners will be speaking (including myself, for what it's worth).


Blogger Peggy McGuinness said...

Thanks for the correction. Indeed, the language of the amendment does include in Section 2 (a) that "No individual in the custordy or under the physical control of the the United States Government, regardless of nationality or physical localtion, shall be subject to cruel, inhuman, or degrading treatment or punishment." That appears to include intelligence agencies. Of course, it does not address rendition. But if the test is "in control of," it would appear to include USG contractors.

Under the definition of "cruel, inhuman and degrading" treatment, it is quite explicit in incorparating the reservations, understandings and declarations included by the US when it ratified the Torture Convention (which are almost identical to the US RUDs on the torture section of the ICCPR). But that doesn't answer the question of how a judge will determine if the standard has been met, or whether a judge might look to the other courts, e.g., the ECHR opinion in the N. Ireland cases, in determining what specific measures would constitute the prohibited treatment.

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