JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that recently disclosed US Department of Justice letters to US Senate Intelligence Committee member Ron Wyden (D-OR) on detainee interrogations reflect a misleading and erroneous understanding of the Geneva Conventions in the Bush Administration…

Two recently disclosed letters from Principal Deputy Assistant Attorney General Brian A. Benczkowski to U.S. Senator Ron Wyden on September 27, 2007 and March 6, 2008 reveal that misleading and erroneous analyses of rights and prohibitions reflected in the Geneva Conventions still exist as part of the Bush Administration’s unlawful program of mistreatment of persons detained from the wars in Afghanistan and Iraq.

Regarding the first letter, one finds a misleading statement that Common Article 3 of the Geneva Conventions (which, among other things, requires humane treatment of any detainee in all circumstances) “provides content” regarding the meaning of the word humane “by enumerating the specific prohibitions that would contravene that standard…. In particular, … four specific and serious acts.” Actually, the four acts mentioned are merely illustrative of some of the forms of unlawful treatment. They do not comprise an exclusive list of prohibitions. As the authoritative commentary of the International Committee of the Red Cross (ICRC) states: “What Article 3 guarantees such persons is humane treatment…. The definition [of humane] is not … precise…. On the other hand, there is less difficulty in enumerating things which are incompatible with humane treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions… [and uses the phrase “To this end”].” With respect to “grave breaches” of Geneva law, the commentary notes that an “inhuman treatment” is “one which ceased to be humane” and Article 147 of the Geneva Civilian Convention lists “inhuman treatment” as a grave breach separate from “wilfully causing great suffering” (which the commentary relates to torture) and “serious injury to body or health.” The ICRC commentary adds: “It seems useless and even dangerous to attempt to make a list of all the factors which make treatment ‘humane’…. The requirement of human treatment and the prohibition of certain acts incompatible with it are general and absolute.” Dangerous indeed if someone erroneously advises that the four specific sets of acts provide exclusive normative content.

The first letter also states that international tribunals “have had difficulty identifying content … that is distinct from the four specified prohibitions.” If meant to apply with respect to all international tribunals, the statement would not be correct. As documented in part in my book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, there are several useful clarifications and examples of what constitutes cruel, inhumane, degrading, or humiliating treatment — each of which is separately proscribed under treaty-based and customary Geneva law, as well as under other relevant international law. As the book notes, there is even useful guidance from U.S. cases applying international law and cases applying a U.S. constitutional standard with respect to “cruel” treatment. Water-boarding, the cold cell, stripping detainees naked and use of snarling dogs for interrogation, threatening to kill a detainee or family members, and fear-up harsh are examples of outlawed tactics.

The first letter quotes a manifestly erroneous standard set forth by the Administration in 2007 in Executive Order 13440 § 3(h)(i)(E) that seems to fuse several types of inhumane treatment together in a way that would produce too high a threshold with respect to criminality, listing the need for “‘wilful and outrageous acts of personal abuse’ that are ‘done for the purpose of humiliating or degrading the individual’ and that are ‘so serious that any reasonable person, considering all the circumstances, would deem the acts to be beyond the bounds of human decency.'” The letter adds that this “requires … an intent to humiliate or degrade.” First, not all (and hardly any) inhumane acts need to be “outrageous.” Second, international criminal law does not require that relevant illegal conduct be engaged in “for the purpose” of creating, for example, an outcome of humiliation or degradation as such. As others have recognized, such an approach confuses awareness of the factual quality of one’s conduct with awareness of its legal nature and, more generally of course, ignorance of the law is no excuse. A direct perpetrator need only intend to engage in relevant conduct that objectively constitutes “cruel,” “inhumane,” “degrading,” or “humiliating” treatment. For example, it would not be a defense that the alleged perpetrator did not intend or have a “purpose” to produce an outcome of “cruelty” as such. The elements of the war crime of “torture” articulated for the International Criminal Court provide that the perpetrator of “torture” need only inflict “severe physical or mental pain or suffering” and need not intend that his or her conduct will constitute “torture” as such. The trier of fact would conclude whether the conduct intentionally engaged in by the alleged perpetrator was objectively “severe” and produced physical or mental pain or suffering. Similarly, with respect to cruelty, one need not intend to be cruel. Merely an intent to engage in conduct that we judge to be cruel will suffice. Further, the word “severe” is a criterion that generally distinguishes torture from mere inhumane treatment. As noted by the ICTY and ICTR, all forms of treatment prohibited under Common Article 3 are “serious,” since they are war crimes. As noted in Mehinovic v. Vuckovic, “cruel, inhuman, or degrading treatment includes acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which do not rise to the level of ‘torture.'”

The second letter reiterates manifest error when stating that “the fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant.” The letter quotes language from one ICTY case addressing “‘physical or mental effects'” as part of a circumstantial inquiry, but the letter misses the point that it is not a defense that the accused did not have a “purpose of humiliation and abuse.” The trier of fact will judge whether the conduct engaged in produced the outcome of humiliation or abuse or, to use language from the case, whether the conduct of the accused had the relevant “physical or mental effects.” Additionally, it is not a defense that the perpetrator had a purpose “to prevent a threatened terrorist attack.” As documented in my book, the purpose of torture or cruel, inhumane, degrading, or humiliating treatment is irrelevant because each is proscribed absolutely and “in all circumstances” under several forms of customary and treaty-based international law.

The first letter is also patently in error when it states that Common Article 3 “does not directly prohibit” cruel, inhuman, and degrading treatment. It most assuredly does and it does so “in all circumstances.” As the Supreme Court recognized in Hamdan, and as documented in my book, Common Article 3 applies with respect to all detainees in all armed conflicts and provides a minimum set of customary and treaty-based rights and prohibitions. No one is outside the law and the law of war prohibits torture, cruel treatment, inhumane treatment, degrading treatment, and humiliating treatment.

Under international law, it is entirely irrelevant whet
her or not any particular U.S. constitutional amendment (1) applies abroad to protect an alien detainee, and (2) whether it applies only to punishment as opposed to treatment. There are no relevant U.S. reservations to the absolute rights and prohibitions contained in the Geneva Conventions and, as universally applicable customary international law, what is reflected in Geneva law would not be subject to attempted reservations in any event. As documented in my book, a putative reservation to the Convention Against Torture attempting to limit coverage merely to what is prohibited under the U.S. Constitution is void ab initio as a matter of law because, as the CAT Committee and others have recognized, it is inconsistent with the object and purpose of the treaty. Each treaty prohibits torture and cruel, inhuman, or degrading treatment of any detainee within the jurisdiction or under effective control of U.S. personnel anywhere in the world regardless of purpose and regardless of any claimed exception on the basis of alleged necessity. Customary law reflected in each treaty is also universally applicable without restriction and implicates universal jurisdiction and responsibility. Moreover, as documented in my book, both forms of international law are supreme law of the United States binding on all members of the executive branch as well as any other citizen of the United States.

John Yoo had disclosed in 2006 that there was a “common, unifying approach” or plan developed by an “inner circle” of the Bush Administration to ignore the strictures of Geneva law and to engage in what is unlawful “coercive interrogation.” As my book demonstrates, various memos and letters substantially facilitated the effectuation of the common, unifying plan to use coercive interrogation. In early April, 2008, ABC News disclosed that an inner “inner circle” composed of the National Security Council’s Principals Committee conducted meetings to approve various specific coercive interrogation tactics, including water boarding, and that meetings were attended by Cheney, Rice, Rumsfeld, Tenet, Ashcroft, and others. President Bush was quoted as stating “yes, I’m aware our national security team met on this issue. And I approved.” As noted in my book, President Bush also admitted in September 2006 that he had authorized a program of secret detention (which constitutes the unlawful forced disappearance of persons) and “tough” treatment, and he stated that his program will continue. There have also been other presidential authorizations, directives, and findings that authorized and facilitated effectuation of the common, unifying plan. It is in this context that the manifest errors in the Benczkowski letters are doubly disturbing.

Quite clearly, it is time for a change. It is time to end the “dirty war” tactics that have degraded this country, its values, and its influence. It is time to end impunity, to rid our government of “the suits” who place our military and CIA personnel in harms way, and to recreate a Justice Department that will actually support the rule of law.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and author of Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (Cambridge University Press 2007), available thru http://www.cambridge.org/9780521884266.

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