What is at Stake in the Torture Debate?

With the election of Barack Obama in November 2008, it seemed for a time that, as a people, we might be able to put the torture issue behind us. Within days of his inauguration, President Obama formally rescinded the executive order that had sanctioned the use of torture, and it appeared we might safely be able to turn attention away from the stain on the reputation of the United States to focus on the many other pressing problems before us.

In the interim, of course, several additional memoranda and reports have come to light, and documentary films like Taxi to the Dark Side and Torturing Democracy have put into perspective the shocking photos from Abu Ghraib that we—and the world—saw in 2004. We now must acknowledge that the horrors of Abu Ghraib were neither isolated incidents nor aberrations from a few "bad apples," but part of a policy that was orchestrated and sanctioned at the highest levels. What transpired was not an exception to the rules, but a change in the rules.

The question we cannot escape is: What are we going to do about it? How will we address this dark chapter in our recent past?

Over the past eight years, our discussion about torture has most frequently been framed in terms of U.S. security and values. Willingly or not, we have been drawn into a debate over whether torture can be justified in the interest of U.S. national security. In this context, many find resonance with Senator John McCain’s observation that the discussion and debate on torture is not about terrorists—it is about us, and what kind of a country we are.

I want to lift up an alternative perspective. Our stance on torture is certainly related to U.S. political values and beliefs, but it is also more than that. As we ponder the options for addressing and redressing the policies we pursued in recent years, there is opportunity to reframe the central pole of the debate about torture. The events of the past eight years have not affected the U.S. in isolation; the entire world has felt their repercussions. And so we should ask: What, for the world, is at stake in the torture debate?

As a starting point, the prohibition against torture is no ordinary norm. It is among the most firmly anchored principles in human rights law, codified in more than ten international treaties. The prohibition against torture was unambiguously articulated in the 1948 Universal Declaration of Human Rights, which, though not binding in its own right, nevertheless provides the foundation for subsequently negotiated international human rights law. In 1966 the torture prohibition was given prominence in the cornerstone postwar human rights treaty, the International Covenant on Civil and Political Rights. That treaty, today ratified by some 160 countries, stipulates that the prohibition against torture cannot be attenuated or suspended, even in times of public emergency.

The torture prohibition is further codified in the 1998 Rome Statute of the International Criminal Court, which establishes individual criminal liability for torture and removes any statute of limitations on prosecution for cases that come before the court. And, of course, the torture prohibition is also included as a common article in all four of the Geneva Conventions, which establish the standards for lawful conduct of modern warfare. The Geneva Conventions outlaw torture and degrading treatment in standards that apply to both civil conflicts and international wars.

It is perhaps an irony that U.S. conversations have generally referred to the Geneva Conventions, which pertain only to the conduct of war. The much broader and most authoritative treaty on the subject is the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), negotiated in 1984. The CAT extends to all political circumstances, including war, and explicitly applies to what is arguably the most threatening situation for people worldwide—imprisonment and abuse by their own governments. The CAT established an internationally authoritative definition of torture in international law. (It was the interpretation of the CAT definition that lay at the heart of the infamous torture memos produced within the U.S. Department of Justice.) The actual text of the CAT definition is somewhat lengthy and is qualified in several ways, but in essence it defines torture as the intentional infliction of severe pain or suffering. The Convention explicitly extends its provisions to both war and peacetime, stipulating that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Lest any question remain about the breadth of the prohibition, the Convention further rules out the possibility that an order from a superior officer or a public authority may be invoked as justification of torture. By acceding to the Convention, more than three-quarters of the world’s countries have voluntarily agreed to abide by these provisions. (The U.S. is a party to the treaty. President Reagan signed it in 1988 and the Senate completed the ratification process in 1994.)

The prohibition against torture has thus become a core principle of international human rights law, and some legal authorities consider it as fundamental as the prohibitions against slavery and genocide. This is the context in which the current debate takes shape, and it is against this backdrop that U.S. policies and pronouncements must be considered. From an international perspective, what is at stake in this debate is the fate of a pivotal norm of international human rights law: the absolute and universal prohibition of torture.

Viewed from outside the United States, it is not only the actions of the U.S. government but also the very existence of a public debate that has eroded confidence in the normative prohibition against torture. As a hegemonic state, the United States has for decades been seen as the moral guarantor of the prohibition of torture and other human rights norms—even if its own practices have not always lived up to its rhetorical and legal commitments. Congressionally mandated foreign policy requires the United States to report on the human rights performances of other countries and on its own efforts to promote human rights abroad. U.S. law also requires that the performances of other countries be considered in deliberations over the allocation of foreign aid and the award of military aid and arms export contracts. Many observers abroad have believed that despite governmental shortcomings, people in the United States have stood firmly behind the principles that have prompted such policies. The current debate has accentuated the hypocrisy implicit in U.S. policy, but it has also raised questions about the commitment of the broader U.S. society. In the process, the debate has effectively opened political space for those who were not enthusiastic about the torture prohibition to begin with.

Who are the beneficiaries of U.S. equivocation and a weakened commitment to the prohibition against torture? Anyone in a position of authority who feels constrained by the norm that prohibits torture stands to benefit from weakened standards. That includes renegade soldiers and policemen or covert operatives of any nationality who seek to avoid accountability for their actions. The principal beneficiaries, however, are the regular practitioners of torture, those governments that rule by repression and fear and that depend on intelligence services and security agencies to crush domestic dissent. Some of these governments have hosted secret CIA interrogation centers or, through a program of "extraordinary renditions," have collaborated in the transit of suspects to countries where they might be tortured. Perversely, the public discourse about terrorism has communicated a new tolerance for the practice of torture and has at the same time supplied authoritarian leaders with new rhetoric to justify harsh treatment of political opponents. International opprobrium is now openly discounted, and the likelihood of real sanctions for intolerable human rights abuse is increasingly remote.

If the potential beneficiaries are primarily parties who eschew human rights, those who risk loss in this debate are democratic reformers, human rights advocates, and their various allies. Over the course of four decades of advocacy work, human rights organizations have learned to appreciate the value of international legal norms, even when they are violated with apparent impunity. For human rights advocates, international law is important not only for the behavior it promotes or prevents, but for the common standards it offers for judging and assessing the performance of states. Without the ability to link their appeals to negotiated legal standards, human rights organizations would find their arguments reduced to moral claims. Law creates the possibility of political accountability, especially when the offending state has ratified the relevant treaty and voluntarily pledged to adhere to its provisions. It is the attachment to international law that ultimately differentiates the work of human rights groups from that of religious groups with deeply held, but essentially parochial, beliefs about right and wrong. Because human rights organizations link their assessments to negotiated and ratified law, they are understandably threatened by the potential rollback of a standard on torture that had seemed unshakable.

The prohibition of torture is of paramount importance to human rights groups, but those who most directly stand to lose in this debate are democratic reformers and regime opponents who live under authoritarian governments. As recent events in Iran have demonstrated (and as was illustrated in Zimbabwe the previous year), political reform in many parts of the world is itself a high-stakes enterprise. As part of their strategy—and also upon advice of counselors from such international organizations as the UN and World Bank—reformers often advocate adherence to internationally derived standards of good governance, including rule of law and respect for human rights. In numerous countries, provisions of the Convention Against Torture have been incorporated into domestic law and have motivated reform of domestic penal codes. More broadly, ratification of international human rights treaties can serve as a means of locking a country in to democratic standards and securing a commitment to rule of law. A sustained assault on human rights standards has the effect of undermining the efforts of democratic reformers.

These same reformers are often viewed by authoritarian governments as a threat, and they are among those at risk of arbitrary arrest and potential physical abuse. Thanks to a combination of strong and focused public pressure and democratizing change around the world from Latin America to Eastern Europe, systematic torture is far less common today than it was in the 1970s and ’80s. But the continued use of brutal and extreme forms of torture—such as electric shock, painful beatings on the soles of the feet, suspension from a iron rod, custodial rape and sodomy, disorientation through sensory deprivation, and simulated drowning—nevertheless remains a serious concern in many countries, several of whom have collaborated with U.S. military and intelligence operations. In the past, individuals threatened by torture have sometimes benefited from interventions by U.S. and other diplomats stationed abroad. Even if such interventions continue to be made, they have today become awkward, opening opportunities for the offending government to remind U.S. and Western diplomats of U.S. abuses. For democratic reformers, it is a double blow. Not only is the normative prohibition against torture being eroded, but the muscle of U.S. foreign policy that reinforced it has become flaccid.

Without events of the past eight years, we would not be engaged in a debate on torture. A decade ago, both the systematic practice of torture and its toleration were on the decline. In a 1999 landmark case litigated in the United Kingdom’s highest court, Law Lords formally acknowledged that torture had become a recognized crime against international law. They agreed that the Convention Against Torture held legal and practical implications for Chile’s General Pinochet (the accused, who found himself in London for back surgery) and for the UK itself. The same year, Israel’s Supreme Court ruled that all torture, even moderate physical pressure, was illegal.

For us in the United States, it is painful to acknowledge that in the intervening years, it is our country’s doing—through policy, practice, and public equivocation—that has returned the question of torture to a matter of international debate. Many of us would prefer that we put the torture issue behind us and simply move on. That sentiment is understandable, but it is not wise. Our failure to reaffirm U.S. commitment to the absolute prohibition against torture can only erode international normative standards. While President Obama’s directives on torture are welcome and important as first steps, they are not sufficient to assure the world of our renewed commitment to international norms. From a very practical perspective, the measures taken by this President offer no protection against a future President’s decision to reinstate the brutal interrogation policies of the past eight years. Our collective political challenge, and responsibility, is to find a way to definitively repudiate both the political instructions and the intricate ratiocinations that made it possible for U.S. officials to consider as torture nothing short of organ failure. Through our political institutions, our judicial system, and professional bodies, we the people must clarify and affirm the robust intent of our laws and ensure that no room is left to carry out acts of torture in our name. Calls for congressional hearings, judicial prosecutions, and sanctions imposed by bar associations are all directed to that end. As the International Committee of the Red Cross and numerous international human rights organizations with moral and substantive authority have long asserted, simulated drowning, stress positions, and sensory manipulation are outlawed by the international definition of torture as established by the Convention Against Torture. That definition is already enshrined in U.S. law, and now it is a matter of ensuring that its broadest interpretation will guide our policies. The moral precepts and political principles that guide the United States and shape our own policies are important elements in the debate on torture—but in the end, much more than that is at stake. We will not be ready to close the debate until all doubt has been removed about our commitment to the absolute prohibition of torture.

The full text of the Convention Against Torture can be found at http://www2.ohchr.org/english/law/cat.htm. Torture is defined in Article 1, which reads:

Article 1.

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
An earlier version of this article was published by the Center for International and Comparative Studies at University of Michigan, where she is a professor of Public Policy.

Susan Waltz

Susan Waltz is a member of Red Cedar Meeting in Lansing, Mich., and currently serves on the board of Amnesty International-USA.