Tag Archive | "torture"

Torture Chamber, an illustration

Identifying Torture: A conspicuous ambiguity

In any endeavor requiring the employment of language, ambiguity is an inescapable

That is not to say however, that all attempts at specificity ought to be abandoned. The need for special care in language increases with the gravity of the subject of consideration. Discourse concerning topics such as torture requires the utmost care, and is deserving of maximal precision. It is for this reason that the language of the Convention Against Torture (“CAT”) is so unsatisfactory. The mere creation of the convention itself is inadequate without language sufficient to bind its signatories in the way intended.

There are two terms that are particularly problematic in Article I of CAT. The relevant sections state that torture is defined as “any act by which severe pain or suffering…is intentionally inflicted on a person.” Both “severe” and “intentionally” represent troublesome gaps in the convention’s injunction. This lack of fastidiousness has led to problematic rulings by the U.S. Justice Department and the U.S. courts, which have taken advantage of the open-ended nature of the terms contained within the convention. One example of this abuse of ambiguity is a memorandum handed down by the U.S. Justice Department in 2002, which provided an incredibly narrow interpretation of the term “severe.” In the memorandum, severe was interpreted as meaning “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in loss of significant body function will likely result.” While this memorandum was ultimately repudiated, it is a somber example of the vast discretion that can be applied to the language of CAT.

The second example is the 2008 case Villegas v. Mukasey, which represents a troubling interpretation of the term “intentionally.” One of the explicitly enumerated elements of torture is the underlying motivation. This motivation can consist of “obtaining…information or a confession, punishing…or intimidating or coercing.” In this case, the applicant, a citizen of Mexico who had been lawfully admitted to the United States, was found guilty of second degree robbery. The applicant, suffering from bipolar disorder, argued that removal to Mexico would result in his being confined to a Mexican mental institution, “where conditions are deplorable.” In Article III, CAT specifically prohibits extradition to countries where torture is likely. On this basis, the applicant argued that removing him to Mexico would be sending him to a torture chamber masquerading as a mental institution. However, the United States Court of Appeals for the Ninth Circuit affirmed the earlier rulings, and found against the applicant. The court, operating under the Foreign Affairs Reform and Restructuring Act of 1998, and its construal of the term intentionally, held that intentionally refers to “specific intent,” or an intent to bring about the consequences of the action, not merely to “general intent,” or an intent to bring about the action itself. The court held that the awful conditions prevalent in the Mexican medical institutions were not a product of specific intent, and thus the applicant was removed to Mexico, to face the horrors of Mexican institutionalization, as punishment for his crime.

It is not necessarily the case that there are readily available terms simply waiting to replace the existing language of CAT. However, taking the time to unpack what is meant by this vague terminology is what is required for CAT to be effective in its mission. It has been said that those things which “[violate] the integrity of the human person, such as mutilation, [and] physical and mental torture…are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer [the] injustice.” Of the many quandaries that plague modern society, the question of torture is of pivotal importance. It is therefore deserving of exceptional care in the declarations made which pertain to its tolerability.

Cameron Hunter is a 2L law student and first year master’s student at the University of Denver and is the incoming Survey Editor for the Denver Journal of International Law and Policy

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Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif.

Critical Analysis: Distinguishing Obama’s Drone Program from Bush’s Interrogation Program

Hours before the “Torture Report” was release by the Senate, former speechwriter for President George W. Bush Michael Gerson wrote an op-ed where he called Senators Feinstein’s and Udall’s decisions to release the report reckless in what he referred to as “a massive dump of intelligence.” In making his argument, Mr. Gerson misconstrues principles of international law that should be clarified while also setting a dangerous precedent.

Mr. Gerson attempts to equate President Obama’s drone program with President Bush’s torture program (Mr. Gerson does not use the term torture, instead opting for “harsh interrogation,” most reviews of the report conclude that the CIA engaged in torture). Mr. Gerson states that there is only “a subtle moral distinction” between these two attempts to keep the United States safe. However, there is more than a subtle moral distinction between these programs, one that calls his argument into question.

Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif.

In this June 3, 2014 file photo, Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif. is pursued by reporters on Capitol Hill in Washington. Secretary of State John Kerry asked Feinstein on Friday to “consider” the timing of the expected release in coming days of a report on harsh CIA interrogation techniques.
Photo/Caption Credit: Manuel Balce Ceneta/AP, Washington Post

One of these programs can be justifiable under international law while the other can never be justified under international law. Before establishing these distinctions, it is important to highlight that Mr. Gerson points out in his piece that this torture report is being released in “the middle of a war.” This is important because this sets parameters of acceptable actions. During a time of war, which the United States has engaged in since September 11th, 2011, the use of force that results in the loss of human life is permissible so long as it meets the jus in bello requirements. This requires the use of force to be proportional, necessary, and utilize distinction. This is in opposition to torture, which is never justifiable under international law. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment specifically states in Article 2(2) that not even a state of war permits a state to engage in torture.

Therefore, there is more than a moral distinction that separates Obama’s drone program and Bush’s torture program. Obama’s program has a legal foundation in international law if certain conditions are met while Bush’s program is a violation of international law no matter the circumstances.

This brings me to Mr. Gerson’s more subtle implication in his piece. He warns President Obama and Senate democrats that in the future a different Congress may want to look into the current drone program. Mr. Gerson’s veiled threat implies that because they are investigating President Bush’s torture program, they are opening themselves to similar investigations by future administrations and members of Congress.

Mr. Gerson’s threat is disturbing. The United States is supposed to be a nation of laws. The Senate is investigating the torture program because it appears to have broken international law. Mr. Gerson suggests that holding United States leaders accountable for violations of international law is nothing more than political posturing. This suggestion undermines the foundation that the United States is a nation of laws.

While President Obama’s use of force may be justified under international law, I do not necessary claim that it is. President Obama and his administration have failed to publically articulate how its drone program meets the requirements of lawful use of force under international law. Congress has a duty to investigate President Obama’s drone program to ensure that it is lawful. This duty comes from Congress’ oversight role, not from political revenge as suggested by Mr. Gerson. And if Congress concludes that President Obama’s drone program does not meet the principles of international law (proportional, necessary, and utilizing distinction), then they should take the appropriate legal actions to ensure that the United States protects its foundation as a nation of laws.


Wesley Fry is a 2014 graduate from University of Denver Sturm College of Law and former Editor-in-Chief of the Denver Journal of International Law and Policy.

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The movie  <i>Zero Dark Thirty</i> raises questions of its controversial portrayal of torture.  (Salon.com)

Critical Analysis: Zero Dark Thirty – A Movie About Torture?


The movie  Zero Dark Thirty raises questions of its controversial portrayal of torture.  (Salon.com)

Jessica Chastain in Zero Dark Thirty. (Salon.com)

“Those torture scenes were incredibly hard to watch . . . How do you feel about torture?  Do you think it is effective?  I think it is morally wrong at all times to torture no matter what.  But what if it saves innocent lives, and you know that they would torture you if they had the chance.”  These were all phrases that I heard in passing as I left the movie theater last night after seeing Kathryn Bigelow’s newest war drama Zero Dark Thirty.  The movie opens with a compilation of voice-overs from September 11, 2001 and then cuts to a series of scenes where Arab prisoners are being tortured.  The scene is described by the New York Times as a scene where the interrogator “knocks Ammar down, subjects him to simulated drowning and forces him inside a horrifyingly small box. The violence is ugly, stark, almost businesslike and is largely presented without music cues or any obvious film-making commentary.” 

But this last point, that there is no imbedded film-making commentary either directly or indirectly is a point that has been vigorously debated and has thrust the subject of torture back into American discourse.  Some critics have said that the movie is

about those who did not protest, who went along and who — while searching for a needle in a haystack — interrogated detainees deemed ‘enemy combatants’ in what the former Secretary of Defense Donald H. Rumsfeld described as ‘a war like none other our nation has faced.’  The movie shows the dark side of that war. It shows the unspeakable and lets us decide if the death of Bin Laden was worth the price we paid.

Others, however, are much more critical of the film, and go so far as to call for banning Zero Dark Thirty from any sort of Oscar consideration.  Jonathan Kim, a writer for the Huffington Post said that the film asserts “that torture is an effective way to gather information, that it was instrumental in locating Osama bin Laden, and that America should have never stopped doing it.” While Kim’s view of the film is harsh, there is an admitted undercurrent through the film that things became more difficult for C.I.A. investigators after President Obama disavowed torture as an acceptable interrogation technique.

In response to the film and the renewed discourse regarding torture, a “6,000-page report on C.I.A. interrogations by the Senate Intelligence Committee, based on a study of some six million pages of agency documents, f[ound] that brutal treatment was not ‘a central component’ in finding Bin Laden.” The report, however, is still classified.

In spite of, and maybe because of the movies, discussions, and political commentary on the issue of torture, everyday movie going Americans remain split over the role that torture played in fighting the war on terror.

Treana Hickey is a 3L at the University of Denver, Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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Delivered Into Enemy Hands http://www.hrw.org/reports/2012/09/05/delivered-enemy-hands

Critial Analysis: CIA Use of Waterboarding More Widespread than Reported

Delivered Into Enemy Hands (HRW)

On September 6, Human Rights Watch released a report alleging that the U.S. government, under the Bush Administration, covered up the extent to which it used waterboarding at secret CIA prisons since the September 11, 2001 attacks.  In particular, the report focuses on the CIA’s use of the tactic during the capture of Libyan opponents of Muammar Gaddafi before they were handed over to the former dictator’s secret police. 

Waterboarding is an interrogation tactic. A victim lies on his back on an inclined platform, with his feet above his head, while water is poured into his nose and mouth. The victim begins to gag as his sinus cavities and mouth fill with water, leaving him unable to inhale or exhale without aspirating water.

According to the report, there is new evidence that the CIA used waterboarding on many more instances than previously admitted. “The scope of Bush administration abuse appears far broader than previously acknowledged and underscores the importance of opening up a full-scale inquiry into what happened,” said Laura Pitter, counterterrorism advisor at Human Rights Watch and author of the report.

“Delivered into Enemy Hands: US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya,” the 154-page report, is based on interviews with individuals in Libya, including fourteen former individuals detained by the U.S. For example, a detainee described multiple instances of waterboarding while being held for interrogation. While the prisoner never used the phrase “waterboarding,” he described the tactic: his captors put a hood over his head, strapped him onto a wooden board, “then they start with the water pouring. . . . They start to pour water to the point where you feel like you are suffocating . . . they wouldn’t stop until they got some kind of answer from me.”  This is just one example of many in the report.

It is widely accepted that waterboarding falls within the definitions of torture outlined in the UN Convention Against Torture, the Fourth Geneva Convention, and the Rome Statute of the International Criminal Court, making its use a violation of international law. However, only a few weeks ago, U.S. Attorney General Eric Holder announced that no criminal charges would be filed against CIA agents related to the use of waterboarding. Those responsible for U.S. foreign policy may tout respect for upholding the rule of law and for human rights, but until violations are enforced, there is no real respect for the prohibition on torture. Organizations like Human Rights Watch should continue to make these violations known until true accountability is achieved.

Brianna Evans is a 3L and the Editor-in-Chief of the Denver Journal of International Law and Policy.

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Sources: UNAMA Report, Human Rights Watch, NY Times, Wash Post

News Post: Torture and Cruel Treatment in Afghan Prisons

In response to a startling 84-page report by the United Nations Assistance Mission to Afghanistan (UNAMA), discussions about Afghan prison conditions once again appear throughout international headlines. Unlike Abu Ghraib, however, these documented accounts of torture, inhumane prison conditions and a complete lack of due process were found across and throughout detention centers in Afghanistan. Given the ongoing nature of the conflict, such conditions may not come as a surprise and may even be expected by some. But, both international law and national Afghan law expressly prohibit such abuses. For numerous reasons the accounts of beatings, electric shock, stress positions, sexual abuse, and twisting and wrenching of genitals is of great international concern. First and foremost, the affected detainees are human beings and have been subjected to treatment that we, the international community, have prohibited as a matter of law. Second, the widespread and systematic nature of the torture and cruel and inhumane treatment may have serious implications for international military forces like the United States. Third, where the UNAMA report constitutes “credible evidence” of serious human rights abuses, the Leahy Amendment could be invoked to halt U.S. funding of Afghan security forces.

Sources: UNAMA Report, Human Rights Watch, NY Times, Wash Post

Sources: UNAMA Report, Human Rights Watch, NY Times, Wash Post

The UNAMA featured news report summarizes the findings of the larger report by the United Nations Office of the High Commissioner for Human Rights. The largest share of blame is placed on two Afghan security institutions: 1) the National Directorate of Security (NDS), which is the national security and intelligence arm of the government; and 2) the Afghan National Police (ANP), which handles criminal and conflict-related offenses. Although torture and abuse was more common among the NDS detainees, ANP prisoners were also subject to serious human rights violations. Prior to arriving at NDP and ANP holding facilities, many of the detainees were in custody of international military forces before being transferred. The UNAMA news report emphasizes that these transfers could implicate military officials in violations of the Convention against Torture. Other serious concerns mentioned in this abridged version of the report include Afghan prosecutors’ over-reliance on confessions, and the outright lack of defenses counsel—only 1 of 324 detainees interviewed had an attorney.

Alissa J. Rubin of the New York Times also speaks to the gravity of the UNAMA report by highlighting the words of a detainee, “even stones confess here.” An underlying question in Rubin’s article is whether American officials or the military were aware of their Afghan counterparts’ conduct. In specific, if such officials “benefited from information obtained from suspects who had been tortured,” they may be complicit in such conduct. Although the report was just released, NATO and state officials have already taken action. Many detainee transfers have been temporarily halted and plans are in place for a monitoring program and modern interrogation training.

Authors of the Washington Post article, Afghan Detainees Tortured in Prison, U.N. Says, also question the extent of U.S. knowledge about the situation inside Afghan prisons. This article reflects upon new and additional difficulties the U.S. military will now face in the much-awaited withdrawal from Afghanistan. For example, the U.S. continues to capture and detain suspected insurgents in a detention center near Bagram air base. This facility alone holds more than 2,500 prisoners, and is expected to expand its capacity to as many as 5,500. But, the recent decision to halt detainee transfers last month may place increased pressure on the Bagram facility. In order to address these issues, a U.S.-led coalition began a “six-phase plan to reform the detention system.”

In sum, the UNAMA report leaves no doubt about the prevalence of widespread and systematic torture and abuse of detainees in Afghan prisons. Prisoners are also subjected to arbitrary detention practices and lack due process guarantees. Although many of the detainees are “suspected of being Taliban fighters, suicide attack facilitators, producers of improvised explosive devises, and others implicated in crimes associated with the armed conflict,” international legal protections must be upheld. In specific, the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits the torture cited in the UNAMA report, even during a time of war or exceptional circumstances. Additionally, the International Covenant on Civil and Political Rights guarantees due process rights to protect against arbitrary detention, in addition to assuring fair, speedy and consistent judicial proceedings. The international community must hold Afghan institutions such as the NDS and ANP responsible for the widespread and systematic violations of international law. Lastly, to the extent that the U.S. and other international forces were complicit in such violations, they too must face criminal charges.

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University of Denver Sturm College of Law