They Told Us At The Time, This Is Legal, This Is Not Torture

Dr L.A. Farrell with a piece on the very topical matter of “enhanced interrogation programs”. It featured on the blog The 14 Hooded Men

Fearing that there was no way to prevent any government from using torture as an interrogation technique, the Irish government decided to pursue the Hooded men's case with the European Court of Human Rights (ECtHR). This marked the first inter-state case brought before the Court since its inception in 1950 under the Convention for the Protection of Human Rights and Fundamental Freedom.

By a vote of 14 to 3, the Court found:

Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. (Judgment in the Case of Ireland v. The United Kingdom)

In response, Francie McGuigan, one of the Hooded Men, called the finding: 
a political decision that suited Britain and suited the world. I think Strasbourg has now allowed all countries to use a certain amount of what they classify as degrading and inhuman treatment. The Court set a precedent in this. (The Irish Times, 26 January 1978)

It turns out, Francie was right.

During an interview about the Senate Torture Report with CBS News this morning, former acting director of the CIA Mike Morell took issue with being asked if he was ashamed that his officers had engaged in torture:

One of the reasons I react so strongly, as does George Tenet, to people calling it torture, was that the Department of Justice told us at time, this is legal, this is not torture ... So when people call it torture, I react strongly because it says my officers tortured people -- they did not torture anybody.

Technically, he is correct. Then-United States Assistant Attorney General Jay Bybee referred to the ECtHR findings in the infamous “Torture Memos,” which were used by then-President George W. Bush as the basis for the United States’ post-9/11 interrogation program.
The memos laid out a rationale for denying protections of both the Geneva Conventions and the United States’ War Crimes Act 18 U.S.C. §2441 to members of al Qaeda and the Taliban. While using much of the same circular logic used in The Parker Report to contravene Article 3 of the Geneva Conventions, Bybee referred to Ireland v. the United Kingdom (1978) as the “leading European Court of Human Rights case explicating the differences between torture and cruel, inhuman or degrading treatment or punishment.”

He wrote:
Careful attention to this case is worthwhile not just because it examines methods not used on the TVPA cases, but also because the Reagan administration relied on this case in reaching the conclusion that the term torture is reserved in international usage for ‘extreme, deliberate and unusually cruel practices.’” (Memo to Alberto Gonzales regarding the standards of interrogation under 18 U.S.C. §2340-2340A, 1 August 2002)

Bybee also detailed the specific treatment endured by the Hooded Men before stating” “The court concluded that none of these situations ‘attain[ed] the particular level [of severity] inherent in the notion of torture.’”

The case of the Hooded Men, then became the benchmark by which other countries measure their “enhanced interrogation programs,” and continues to be used to justify the use of torture by democratic societies. That is why the Hooded Men persisted in petitioning the Irish government to bring their case back to the European Court – to ensure no other man or woman experiences the same horrific treatment they did, at the hands of a so-called “civilized” nation.

1 comment:

  1. The difference between human beings and animal's is that humans have free will. The ability to determine the difference between right and wrong. The Brits are generally not stupid,they know what torture is and they know how to inflict it. Something they have perfected throughout the ages. So have kings,queens and popes. To beat someone to a pulp or part drown them is torture as is imprisoning someone for no crime. They know what they have done and continue to do. The question is what can be done to insure they stop for good? For a rotten system to survive it must keep doing rotten things. They can talk about justice till the cows come home but when they rely on brute force to survive,justice goes out the window. Whatever justice you get is what the system dictates you deserve,no more or no less. I know what these torturers need but that won't happen if anything at all. If they all got what they deserve the next would think twice, starting at the very top.