What international treaties govern torture?
The United States is a signatory to the Geneva Conventions. Geneva Convention III, adopted Aug. 12, 1949, prohibits mistreatment of prisoners of war, and Geneva Convention IV, also adopted Aug. 12, 1949, protects civilian populations in times of war.
In 1994, the U.S. also adopted the U.N. Convention against Torture, which defines torture as "any act by which severe pain, whether physical or mental, is intentionally inflicted" to gain information, extract a confession, or as punishment. In addition, it requires state signatories to prevent acts of "cruel, inhuman or degrading treatment or punishment which do not amount to torture."
The Bush administration had an intense internal battle in January and February 2002 over how to handle Al Qaeda and Taliban prisoners captured on the battlefield in Afghanistan. The most famous memo on the subject was written on Jan. 25 by Alberto Gonzales, the chief counsel to President Bush. He reiterated arguments expressed in an earlier memo by Assistant Attorney General John Yoo that the Geneva Conventions should not apply to Al Qaeda because it is a non-state actor and therefore not a party to international treaties of war. Yoo and Gonzales argued that the Taliban should be denied Geneva protections because Afghanistan was a "failed state" with no functioning government and because, in Yoo's words, the Taliban had become "so intertwined with al Qaeda as to be functionally indistinguishable from it."
Describing the war on terror as a "new paradigm," Gonzales laid out for the president the costs and benefits of applying Geneva, and concluded the costs outweighed the benefits. He wrote:
As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for [Geneva Convention III on the Treatment of Prisoners of War]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.
These arguments set off a furious response from the State Department and the military's uniformed lawyers, known as Judge Advocate Generals (JAGs). They argued that not applying Geneva protections could harm U.S. troops in this and future conflicts. Secretary Powell also argued in a memo to Gonzales and National Security Adviser Condoleeza Rice that applying Geneva would allow the U.S. to take the moral high ground and would "present a positive international posture."
On Feb. 7, the president announced his decision: The Geneva Conventions would apply to the conflict, but neither Al Qaeda nor the Taliban would be entitled to prisoner-of-war status under Geneva Convention III. However, he wrote, the U.S. would treat detainees humanely, and in the spirit of the Geneva principles "to the extent appropriate and consistent with military necessity." Critics, including some of the military's uniformed lawyers, have argued that the latter part of the president's statement provides a loophole allowing the administration to sidestep its pledge to treat detainees humanely.
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