Andrew McCarthy takes Secretary of State Rice to task for telling the Europeans that the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) “prohibits, of course, cruel, inhumane [sic] and degrading treatment,” and for assuring the Europeans that “[a]s a matter of U.S. policy, [American] obligations under [UNCAT] … extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.”
Although the U.S. ratified UNCAT, we made it clear at the time that the word torture was to be interpreted in a “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” Indeed, as McCarthy explains, the State Department stipulated that torture was “usually reserved for extreme, deliberate, and unusually cruel practices … [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain.” And, with respect to UNCAT’s ban on cruel, inhuman and degrading treatment, the Senate stipulated that “the United States considers itself bound by the obligation … to prevent [such] treatment or punishment, only insofar as the term. . .means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Since the U.S. Constitution does apply outside of U.S. territory, it does not prohibit cruel, inhuman or degrading treatment of foreign terror suspects outside of our borders, and thus neither does UNCAT insofar as the U.S. agreed to it.
Secretary Rice was incorrect, then, in claiming that, insofar as the U.S. is concerned, UNCAT bans cruel, inhuman or degrading treatment of foreign terrorists. In addition, as McCarthy explains, allowing unacceptably vague, legally irrelevant standards like cruel, inhuman or degrading treatment to control the debate over the interrogation of interrorists is seriously misguided. For one thing,
it ensures we will be saddled with ambiguous terms that needlessly hamstring interrogators, who will have to ask themselves, for example, “is it ‘degrading’ whatever that means to have a woman question a male Islamic terrorist?” Instead, we should be having a specific, frank debate about what tactics should be permitted, what tactics should be avoided, under what circumstances, and under the direction of which accountable officials.
with respect to a small subset of captives high-level terrorists who, for the sake of our citizens and our troops, should be squeezed for whatever information they have we have almost certainly engaged in conduct that would, by any sensible measure, be considered at least cruel and degrading. Water boarding, for example, may very well avoid the strict legal definition of torture, but it is certainly cruel and degrading. By insisting, contrary to law, that U.S. policy is to consider “cruel, inhuman and degrading” as binding on American personnel overseas, the administration only encourages its critics to portray the United States as an international-law violator and a dishonest one at that.
One gets the impression that Rice is torn between her desire faithfully to articulate and carry out administration policy and her desire to be liked and accepted by foreign leaders and diplomats (and perhaps by State Department employees). As a result she is reshaping administration policy to make it more congenial to foreign leaders and diplomats, and less in line with our interests and, in this case, our law.