AFTER 9-11, MUST WE STOMACH TORTURE

1. AFTER 9-11, MUST WE STOMACH TORTURE? Margaret Montoya Professor of Law University of New Mexico School of Law Sponsored by Amnesty International March 3, 2006 Highlands University, Las Vegas, NM Thanks to Amnesty International for organizing this event. Thanks to Carrol and Bob Pearson, thanks to Highlands University for allowing us to use Ilfeld Auditorium and thanks to United World College students for participating and for your dedication to peace and to creating a more harmonious world.Thanks to Amnesty International for organizing this event. Thanks to Carrol and Bob Pearson, thanks to Highlands University for allowing us to use Ilfeld Auditorium and thanks to United World College students for participating and for your dedication to peace and to creating a more harmonious world.

2. ACKNOWLEDMENTS This PowerPoint presentation is based on work by Professors of Law Ben Davis (Univ. of Toledo) and Scott Silliman (Duke). My thanks go to both of them.

3. Objectives Provide you with information about the U.S government�s use of torture in its �war on terror� Persuade you that U.S. government�s detention & interrogation techniques amount to �torture� and violate national and international laws and accepted standards of morality Motivate you to take action to denounce U.S. torture by signing petitions demanding that the U.S. reject torture as a tool of war

4. 9-11: The Backdrop for the Torture Issue

8. �War on Terror� Rationales Blur Into Occupation in Iraq

10. A Progression from 9-11 to �War on Terror� to Abu Ghraib

11. Q: Is This a Legitimate Response to 9-11?

12. And Then There�s Guantanamo

13. Abu Ghraib

14. Iraqi Detainees at Abu Ghraib Abu Ghraib held 7000 prisoners in 2004 Close to 90% were not guilty of allegations, according to ICRC In April and May 2004, 60 Minutes & The New Yorker published photos and reports on prisoner abuse DOD�s �bad apples� defense: 17 officers and soldiers removed from duty; 7 soldiers convicted of the following offenses: dereliction of duty, maltreatment, aggravated assault and battery; 1 officer was demoted (Brig. Gen Janis Karpinsky demoted to Col.)

15. INTERROGATION TECHNIQUES Sleep DeprivationCaptives kept awake for days with bright lights and loud music. Stress PositionsPrisoners forced to stand or squat in positions for hours or held in cramped spaces where they cannot sit, stand or lie down. Shock Therapy Captives �softened� by being beaten, stripped, doused with water, subjected to drastic swings in temperature and often made to remain naked even while watched by female guards. Sensory DeprivationTo disorient them, captives placed in hoods, eyes covered with duct tape or darkened goggles for hours at a time. Psychological Pressure Prisoners subjected to Mind Games -- cajoling, scaring or confusing Threats Prisoners threatened to be sent to countries with a known history of torture, like Egypt or Morocco. Occasionally the U.S. has carried out that threat.

16. Legal Definitions of Torture International Law Geneva Conventions �Prisoners of war must at all times be humanely treated�.(They) must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity� (Article 13) �No physical or mental torture, nor any form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.� (Article 17)

17. Definitions of Torture International Law, cont�d CONVENTION AGAINST TORTURE (1984) �Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.� (Article 2) Torture is defined in the convention as �any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person for such purposes as obtaining� �information or a confession�.� (Article 1) But during the ratification process for the convention, the U.S. Senate submitted an �understanding� which restricted the definition to only very extreme acts.

19. Senate Understanding �In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.� (S. Exec. Rep. No. 101-30, at 36.)

20. International Law, cont�d CONVENTION AGAINST TORTURE (1984) �Each state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which does not amount to torture�.� (Article 16)

21. Senate Understanding The convention does not define �cruel, inhuman or degrading treatment or punishment�, but, just as in the case of Article 2, the Senate added an �understanding� during the ratification process as to what this term meant �The United States understands the term, �cruel, inhuman or degrading treatment or punishment�, as used in Article 16 of the convention, to mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.� (S. Treaty Doc. No. 100-20, at 15-16)

24. Domestic Law THE TORTURE STATUTE (18 U.S.C. '' 2340-2340A) Since the Convention against Torture only applies in territories under our jurisdiction, this statute extends the prohibition to acts committed in other places The statute makes it a criminal offense for any person outside the united states to commit or attempt to commit torture (but cruel, inhuman or degrading treatment or punishment is not mentioned) Torture is defined under the statute as �an act committed by a person acting under 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 control.�

26. Torture MemosBybee, Woo, Gonzales They argue that those who might use overly coercive interrogation techniques are insulated from domestic (and international) prosecution, especially in the federal courts under the torture statute One of the �torture memos� (August 1, 2002) concluded that for physical pain to amount to torture under the torture statute it must be excruciating and agonizing pain, equivalent in intensity to the pain accompanying serious or physical injury, such as organ failure, impairment of bodily function, or even death.

27. Supreme Court Justices New Justices Roberts and Alito Executive War Powers Unitary executive NSA Wiretapping Disclosures

28. McCain Amendment �No person in the custody or under the effective control of the department of defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by or listed in the United States Army Field Manual on intelligence interrogation �No individual in the custody or under the physical control of the united states government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment� The amendment goes on to define �cruel, inhuman or degrading treatment or punishment� as that which would violate our 5th, 8th and 14th amendments This language, which congress passed at the end of last year, �fills the gap� which exist in our domestic law as to acts of cruel, inhuman or degrading treatment or punishment committed outside our borders

29. Bush�s �Signing Statement� The amendment was signed into law by President Bush on December 30, 2005, as part of the 2006 Defense Authorization Act, but in his �signing statement�, the President said: �The executive branch shall construe�[the amendment] �in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on judicial power, which will assist in achieving the shared objective of the Congress and the President�of protecting the American people from further terrorist attacks.�

30. Wash. Post (3/09/06): New Law Doesn�t Apply to Guantanamo Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison. In federal court yesterday and in legal filings, Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as "systematic torture.� Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.

33. What Concrete Actions Can We Take To ResistThe Use of Torturein Our Name?

34. CLOSING THOUGHTSGo to Amnesty International�s website for more informationwww.amnestyusa.org