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Abu Ghurayb has spawned questions about the nature of torture
What is torture, and when -- if ever -- can pain be inflicted on a prisoner? Those questions are now being debated after the leaking of U.S. government memos that recommend, among other things, that interrogators be permitted to use pain to elicit information from detainees. In this first of a two-part series, RFE/RL's Mark Baker examines international law and the varying interpretations of what constitutes torture. Part 2, to be issued tomorrow, will take a closer look at interrogation techniques and asks whether physical pain is an effective method to extract information.
Prague, 17 June 2004 (RFE/RL) -- U.S. government memos, leaked to the media recently, are spurring debate about what exactly constitutes torture and inhumane treatment.
The memos, written by the Justice Department in 2002, suggested a weakening of the prohibitions on the use of physical force when interrogating prisoners.
One of the memos states that only extreme acts -- "equivalent in intensity to the pain accompanying serious physical injury, organ failure or even death" -- are expressly prohibited. It says treatment involving a lesser degree of pain -- even if "cruel, inhuman or degrading" -- would fall outside the ban on torture.
The United States says the memos were intended only as legal opinions and were never adopted as policy. Nevertheless, in the wake of the prisoner abuse scandal at Baghdad's Abu Ghurayb prison, the memos are raising embarrassing questions about the commitment by the United States to international conventions banning torture and inhumane treatment.
But what does international law have to say on the subject? Is inflicting pain on a prisoner -- even to extract information that could save innocent lives -- ever justified?
The answer to that question is no, says Dinah PoKempner, a lawyer and general counselor for Human Rights Watch in New York: "The rule internationally is very firm. Not only torture, but also cruel, inhumane, or degrading treatment is off-limits."
The leading international agreements on torture include the 1949 Geneva Conventions and the UN Convention Against Torture. Both ban torture and inhumane treatment in wartime or under any other exceptional circumstances. The United States is a signatory to both.
PoKempner derides the Justice Department memos as having no basis in either international law or the U.S. Constitution.
"[The memo,] in fact, is a ridiculous effort to 'define down' torture to be suffering that produces 'death' or 'organ failure' or 'severe response,' and it has no relation to either [protections in the U.S. Constitution] or international law. It's really a [unique] interpretation [of torture] by the Department of Justice. I don't think we can take it very seriously except to the extent that it shows an attempt to lower the bar on harsh treatment," PoKempner says.
She says evidence of this effort to lower standards can be seen at Abu Ghurayb, where U.S. servicemen are accused of abusing Iraqi prisoners being held for interrogation. U.S. soldiers forced Iraqis into sexually humiliating poses and physically stressful positions, hooded them, threatened them with dogs, and deprived them of sleep -- practices the Department of Justice memos would apparently allow.
"People don't realize, for example, that being forced to maintain a certain posture for a number of hours can produce certain muscular or skeletal dislocation. It can cause torn ligaments. And things like hooding or isolation or barrages of sound can all have serious psychological consequences that are indeed long-lasting," PoKempner says.
Mike Ritz, a former U.S. Army interrogator who now runs his own company, Team Delta, sees the issue a little differently.
Ritz deplores the practices seen at Abu Ghurayb, but says he thinks part of the problem lies with the wording of international agreements. He says the agreements are clear on banning torture in general, but are vague when it comes to specific practices like hooding and sleep deprivation.
"I think all the interrogators are exposed to [international norms against inhumane behavior], and it's very clear that no sort of physical abuse can occur. [But] it can become a sticky situation as to how we define physical abuse. And I think that a lot of interrogators are probably not totally aware of where that line is. And how could they be? The ambiguity that is the Geneva Convention makes it very difficult for that to happen," Ritz says.
Ritz says practices like hooding -- while legally questionable -- can be effective when used under the right circumstances. But, he says, they should never be used as punishment.
"We blindfold or hood or [do] something like that to disorient the prisoner so that he can't take control of the situation when he's being escorted from place to place. We can take advantage of that procedure that the military police have as part of prisoner handling. We can take advantage of that because we know it is disorienting. We know it can be intimidating and a bit scary, and we can take advantage of that fact, just knowing it. But what we can't do is tell the prisoner, 'If you don't cooperate, then your head is going to be shoved in that hood for the next 24 hours.' That we can't do. That's where the Geneva Conventions come into play," Ritz says.
U.S. officials in recent days have been on the defensive, saying the United States does not condone violations of international conventions on torture -- even as it pursues its almost three-year-old war on terrorism.
Seven soldiers so far have been charged in the Abu Ghurayb abuses. One soldier has already been sentenced to a maximum penalty of one year in prison and a bad conduct discharge.
Here is Defense Secretary Donald Rumsfeld, speaking on 14 June in Washington: "There is no 'wiggle room' in the [U.S.] president's mind or my mind about torture. That is not something that is permitted under the Geneva Convention or the laws of the United States."
But with the Justice Department memos, the abuses at Abu Ghurayb and suspected prisoner abuses at other U.S.-run detention facilities in Iraq, Afghanistan, and Guantanamo Bay, Cuba, it's no longer clear which definition of "torture" he and other U.S. officials are using.