Psyche, Science, and Society

What the US Reservations to UN Convention on Torture really means?

September 13th, 2006

What the US Reservations to UN Convention on Torture really means?

David Luban, law professor at Georgetown University, has written the following (in an email to Uwe Jacobs, Director of Survivors International, cited with permission) to help explain why the American Psychological Association’s citing of the US Reservations to the UN Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in its recent resolution against torture is a really, really bad (or sleazy idea) which dramatically weakens the resolution. As you may recall, the APA slipped in, when no one was paying attention [see my recent article Protecting the Torturers: Bad Faith and Distortions From the American Psychological Association], a paragraph stating:

“BE IT RESOLVED, that the term ‘cruel, inhuman, or degrading treatment or punishment’ means treatment or punishment by any psychologist that is of a kind that, in accordance with the McCain Amendment, would be prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.”

Despite APA claims that this paragraph strengthens the resolution, it in fact weakens it dramatically, as David Luban explains:

Incorporating the reservation is very dangerous, for two reasons. First, the Bush administration argues - quite preposterously - that the reservation means that the ban on CID doesn’t apply abroad. (I’m attaching a short excerpt from a paper I wrote explaining this and citing sources.) The McCain amendment eliminates this interpretation, and the APA resolution expresses support for the McCain amendment - but it doesn’t build this into the part of its resolution that references the reservations. It doesn’t say explicitly that there is no territorial limit on the ban on CID.

But this is a minor, almost semantic problem. There is a much more important problem with supporting the US reservations, which define CID in terms of US constitutional standards. The most important such standard for purposes of interrogation is that of the Fifth Amendment guarantee of due process of law. According to the Supreme Court (from a case around 1951 called Rochin), interrogation violates due process when it “shocks the conscience”. (The case involved pumping Rochin’s stomach to find drugs, which the Court said is unconstitutional because it shocks the conscience.) The Bush admiinistration loves the “shocks-the-conscience” test, because in their view, CID that isn’t prohibited torture does not shock the conscience when it is done for valid national security reasons. And, unfortunately, they have some support for that in a 2003 Supreme Court decision, Chavez v. Martinez. In this case, Martinez had been shot, was in the hospital, and screaming in pain. A police officer who feared that Martinez might die interrogated him and “made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him. There was no attempt through Miranda warnings or other assurances to advise the suspect that his cooperation should be voluntary. Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez’s unequivocal refusal to answer questions.” Nevertheless, the Court held that this did not violate due process, because “[t]here is no rule against interrogating suspects who are in anguish and pain. The police may have legitimate reasons, born of exigency, to question a person who is suffering or in distress.” In other words, this kind of questioning doesn’t shock the conscience because the police “may have legitimate reasons, born of exigency” to conduct the questioning. The Bush administration lawyers are betting that they can extract from this a rule that non-torture tactics will never shock the conscience provided that the interrogators “have legitimate reasons, born of exigency”.

This is why, in the current debate over how to respond to Hamdan, the administration is really keen to insist that humiliating and degrading treatment, as forbidden by common article 3 of the Geneva Conventions, should be defined according to the McCain amendment’s definition of CID, which incorporates the reservations to the torture convention and therefore implicitly says that it isn’t illegal unless it shocks the conscience - which interrogation in the name of national security never will.

Alas, the APA has bought into this.

Or, more likely, the APA hasn’t bought into this, but used this ruse to get the PR benefits of passing a resolution against torture while making sure that the resolution would not interfere with psychologists’ participating in interrogations as usual at Guantanamo and Iraq as well as, perhaps, at the CIA’s secret facilities around the world.

Note: Other useful references on these issues include: Marjorie Cohn’s Jurist article Dropping the Ball on Torture: The US Supreme Court Ruling in Chavez v. Martinez; Adam Liptak’s New York Times article Interrogation Methods Rejected by Military Win Bush’s Support; and Katherine’s excellent blog entry: Ambiguity (Part III) in Obsidian Wings.

Entry Filed under: APA, Constitutional Law, Guantanamo, International Law, Iraq, Law, Psychology, Rights and Liberties, Social Issues, Terrorism, Torture, War Crimes, War and Peace