The 2012 Democratic Party platform released yesterday offers a renewed pledge to close the prison camp at Guantanamo and reiterates President Obama’s ‘torture ban’ which he initiated his first week in office. In a section called “Advancing Universal Values,” the platform endorses the right of individuals “to speak their mind, assemble without fear, have access to information, worship as they please, and choose their own leaders.” Other universal values embraced by the Democrats “include dignity, tolerance, and equality among all people,” as well as the fair administration of justice.
“We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard,” states the platform. It goes on to explain that upholding these values “is why the President banned torture without exception in his first week in office.”
What the platform fails to mention is that in fact there was no need for the president to “ban torture” in the first place, since torture has long been banned by both domestic and international law. Common Article 3 of the four Geneva Conventions of 1949 established a prohibition against torture, which was further codified by the 1987 UN Convention Against Torture. The Convention Against Torture provides a clear-cut definition of what constitutes the practice. As stated in Article 1:
[T]orture 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.
The Convention further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
As a state party to both the Geneva Conventions and the Convention Against Torture, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.
The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)
The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.
(1) “torture” means an act committed by a person acting under the 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 physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
It is widely acknowledged that policies instituted by the previous administration openly violated these provisions of domestic law, and by failing to prosecute those crimes, the Obama administration is itself violating international law. It is not enough for Obama or the Democratic Party to simply reiterate that “the United States doesn’t torture.” There is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”
Under the provisions of the Convention, a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.
The Democratic platform’s reiteration of Obama’s ‘torture ban’ comes less than a week after Attorney General Eric Holder announced that CIA agents would face no charges over the torture and death of detainees while in custody. On Thursday, the Justice Department announced it was ending a criminal investigation that had been probing the deaths of two men: one in Iraq and one in Afghanistan. As Democracy Now reported, “Gul Rahman died in 2002 while being held at a secret CIA facility known as the ‘Salt Pit’ in Afghanistan. He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003 while in CIA custody at Iraq’s notorious Abu Ghraib prison. His corpse was photographed packed in ice and wrapped in plastic.”
Eric Holder said in a statement on Thursday, “Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
Holder did not explain precisely what that “fully developed factual record” may have entailed, nor did he expand upon what “admissible evidence” there was, and perhaps more importantly, what sort of inadmissible evidence might exist. Instead, he injected seemingly irrelevant details about other investigations into “any possible CIA involvement with the interrogation and detention of 101 detainees who were alleged to have been in United States custody subsequent to the terrorist attacks of September 11, 2001.”
“A number of the detainees,” said Holder, “were never in CIA custody.” This, of course, implies that a number of the detainees were in CIA custody.
Rights groups slammed the Justice Department decision. “That the Justice Department will hold no one accountable for the killing of prisoners in CIA custody is nothing short of a scandal,” said Jameel Jaffer, ACLU deputy legal director.
The Justice Department has declined to bring charges against the officials who authorized torture, the lawyers who sought to legitimate it, and the interrogators who used it. It has successfully shut down every legal suit meant to hold officials civilly liable.
Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty. Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.
The Center for Constitutional Rights also criticized the decision and noted the importance of independent investigations.
Once again, the United States has shown it is committed to absolving itself of any responsibility for its crimes over the past decade. Today’s announcement belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses, and underscores the need for independent investigations elsewhere, such as the investigation underway in Spain, to continue. Impunity does not always cross borders.
Marjorie Cohn noted that the announcement is just the latest in a long line of betrayals by the Obama administration.
Last year, Attorney General Eric Holder announced that his office would investigate only two incidents, in which CIA interrogations ended in deaths. He said the Justice Department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder conferred amnesty on countless Bush officials, lawyers and interrogators who set and carried out a policy of cruel treatment.
Now the attorney general has given a free pass to those responsible for the deaths of Gul Rahman and Manadel al-Jamadi.
Both men died horrible deaths in U.S. custody. In 2002, Rahman froze to death after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after being suspended from the ceiling by his wrists. Tony Diaz, a U.S. military police officer who witnessed al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy ruled al-Jamadi’s death a homicide.
As horrendous as they may have been, the two deaths are not unique. According to government data provided to the Associated Press, at least 108 people have died in American custody in Iraq and Afghanistan, most of them violently. However, only a quarter of those deaths have been investigated as possible abuse by U.S. personnel.
As the AP reported in Feb. 2009:
The figure, far higher than any previously disclosed, includes cases investigated by the Army, Navy, CIA and Justice Department. Some 65,000 prisoners have been taken during the U.S.-led wars in Iraq and Afghanistan, although most have been freed.
The Pentagon has never provided comprehensive information on how many prisoners taken during the U.S. wars in Iraq and Afghanistan have died, and the 108 figure is based on information supplied by Army, Navy and other government officials.
“Despite the military’s own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers,” said ACLU Executive Director Anthony Romero in response to the revelation. “No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable.”
Constitutional lawyer Glenn Greenwald noted that the revelation proved that “the unstated premise of every torture debate — that it was safely applied to a handful of detainees — is false.”
The Democratic Party platform however brushes aside these concerns, blandly stating that “Advancing our interests may involve new actions and policies to confront threats like terrorism, but the President and the Democratic Party believe these practices must always be in line with our Constitution, preserve our people’s privacy and civil liberties, and withstand the checks and balances that have served us so well.”
The disconnect between these empty words and the demonstrable reality is profound. If the Democratic Party really believes that counter-terrorism policies must be in line with the Constitution and civil liberties, they should simply enforce the laws that exist on the books. As their platform states, “We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard.”
Four years ago, the Republican Party platform included a plank that expressly stated the party’s support for principles of international law. “To be successful international leaders,” the 2008 GOP platform stated, “we must uphold international law, including the laws of war, and update them when necessary. Our moral standing requires that we respect what are essentially American principles of justice.”
While some might have questioned the sincerity of the Republicans’ actual commitment to international law after eight years of the Bush administration’s stated contempt for the Geneva Conventions and other international legal obligations of the United States, the party platform at least paid lip service to these principles and, significantly, described international law as reflecting American values.
This year, the term “international law” appears nowhere in the party’s platform. Neither do the terms “international norms,” “international obligations,” or “international commitments.” Instead, the 2012 GOP platform, adopted at the Republican National Convention yesterday, expresses disdain for the concept of “foreign law,” which it somewhat misleadingly equates with international law.
In a section called “American Sovereignty in U.S. Courts,” the 2012 platform states emphatically that “subjecting American citizens to foreign laws is inimical to the spirit of the Constitution.” The fear of “foreign law” is cited as “one reason we oppose U.S. participation in the International Criminal Court,” which the Republicans suspect could lead to “ideological prosecutions” of U.S. soldiers in The Hague.
“There must be no use of foreign law by U.S. courts in interpreting our Constitution and laws,” the platform states. “Nor should foreign sources of law be used in State courts’ adjudication of criminal or civil matters.”
The conflation of “international law” with “foreign law” has been well-established in Republican Party rhetoric for several years now, dating back at least to 2005 when the Supreme Court cited “the overwhelming weight of international opinion” in ruling that the death penalty for juvenile offenders was unconstitutional.
In reaction to that ruling, then-Attorney General Alberto Gonzales gave a speech at George Mason University Law School where he admonished the Supreme Court for its “use of foreign law in constitutional interpretation.”
“I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution,” Gonzales said. “Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge’s opinion or a foreign legislature’s enactment, then that foreign judge or legislature binds us on key constitutional issues.”
Homeland Security Secretary Michael Chertoff also weighed in on the issue, calling the prospect of a United States government constrained by international law a “chilling vision” of the future.
“The fact is, whether we like it or not, international law is increasingly entering our domestic domain,” Chertoff said in a 2006 speech to the right-wing Federalist Society.
“The Supreme Court has begun to bring it through cases like Hamdan,” a reference to Hamdan v. Rumsfeld in which the high court cited the Geneva Conventions in ruling that hundreds of suspects being held without charges at Guantanamo Bay had legal rights.
Chertoff objected to the Supreme Court’s reference to the Geneva Conventions despite the fact that the U.S. Constitution states that treaties entered into by the U.S. government are the “supreme law of the land” and all four Geneva Conventions were long ago signed by the U.S. Executive and ratified by the U.S. Senate.
“International law is being used as a rhetorical weapon against us,” Chertoff said. “We are constantly portrayed as being on the losing end, and the negative end of international law developments.”
While Gonzales and Chertoff were speaking about different subjects – in one case objecting to the citing of international opinion in a Supreme Court decision and in the other objecting to citing international law as a binding obligation of the United States – the message of the two men were essentially the same: no “foreign” law, be it a legally binding treaty or an international norm based on “overwhelming international opinion” has any place in domestic jurisprudence.
At the time, the issue inspired spirited debate among policy wonks and legal scholars.
Frederic L. Kirgis, a law professor at Washington and Lee University, weighed in on the matter in an article for the American Society of International Law, in which he attempted to explain the difference between international law and foreign law.
“Foreign law is not the same as international law,” he wrote.
Foreign law is the law of an individual foreign country or, in some instances, of an identifiable group of foreign countries that have a common legal system or a common set of rules in a particular field of law. From the United States’ perspective, European Union law or the law of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be in the latter category.
International law is the law in force between or among nation-states that have expressly or tacitly consented to be bound by it. Its primary sources are treaties to which specific countries are parties (binding upon those countries, but not upon other countries) and custom. Customary international law stems from the practice of international entities (primarily national governments) over some period of time that has hardened into a reasonably firm expectation that the practice will govern future conduct by all countries that have not clearly objected to the practice during its gestation.
Kirgis cited a Supreme Court decision from 1900, in which the justices wrote: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination.”
While the incorporation of international law into the domestic legal system of the United States was for a long time considered uncontroversial, the attack on the concept by Bush administration officials established a new paradigm in official Washington – that international norms have no place determining the policies and legal practices of the United States.
It was somewhat surprising then the GOP would make “uphold[ing] international law” an official plank of its party platform in 2008, even going so far as to equate international law with “American principles of justice” and stating that respecting these norms was essential for “our moral standing.”
Perhaps the Republicans that year recognized that after nearly a decade of systematically eroding principles of international law, the United States’ credibility was next to zero in the eyes of the world. Or perhaps the party felt threatened by the Obama campaign’s slogan of “hope and change,” which implicitly promised a return to the rule of law in the USA.
Whatever the reason for including the plank four years ago, it is clear that they do not feel beholden to international law anymore.
Not only does the 2012 platform rail against “foreign law,” but it also expresses its absolute opposition to “the adoption or ratification of international treaties that weaken or encroach upon American sovereignty.” These include several popular treaties that the rest of the world has eagerly adopted such as the UN Convention on Women’s Rights and the Convention on the Rights of the Child.
“Under our Constitution,” the 2012 GOP platform states, “treaties become the law of the land.”
So it is all the more important that the Congress—the Senate through its ratifying power and the House through its appropriating power—shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development.
To shield members of our Armed Forces and others in service to America from ideological prosecutions overseas, the Republican Party does not accept the jurisdiction of the International Criminal Court. We support statutory protection for U.S. personnel and officials as they act abroad to meet our global security requirements.
It’s interesting that in a political party platform devoted mostly to attacking the incumbent Democratic president on various issues ranging from health care to nuclear strategy, there are no criticisms in the 2012 GOP platform on undue U.S. adherence to international norms. Perhaps this is because a bipartisan consensus has been reached in Washington on matters of international law.
Despite widespread international criticism of U.S. drone warfare, for example, there is only one reference in the platform to drones, which simply criticized alleged leaks regarding secret drone assassinations from the White House “for political purposes.”
“Leaks by senior Administration officials,” the platform reads, regarding “the use of drones against Al Qaeda and its operatives, and the targeting of our enemies—unprecedented leaks that compromised key sources and methods and damaged our national security—served the single purpose of propping up the image of a weak President.”
There is no mention of torture, indefinite detention or the decade-old gulag of Guantanamo Bay in the 2012 Republican platform. The only criticism, in fact, of Obama’s prosecution of the “war on terror” is over the fact that the administration no longer uses that term in describing the endless war in which the U.S. is engaged.
In the White House’s National Security Strategy, laments the GOP, “the phrase ‘global war on terror’ does not appear at all, and has been purposely avoided and changed by his Administration to ‘overseas contingency operations.’”
What a crying shame.