When Is It Torture? Is It Ever Legal?

It was reported this week that President Bush signed an executive order (search) authorizing robust interrogation methods of captured enemy combatants (search).

The White House, as well as various agencies, denies the existence of such an order, despite an FBI memo that refers to such an order. But if the executive order does not exist, could the individuals who engaged in such interrogation tactics be held legally culpable if they did so believing their actions were sanctioned by the White House? And does what allegedly occurred at places like Guantanamo Bay actually amount to torture?

No legal body has concluded that the interrogation techniques used at Guantanamo Bay (search) amount to torture, but the administration’s critics are certainly asserting that they do. The chief piece of legislation prohibiting torture is the United Nations Convention against Torture (search), and the United States is one of its signatories. A troubled piece of law from the start, the Convention against Torture, or "CAT," was adopted by the United Nations General Assembly on Dec. 10, 1984. The U.S. became a full state party to the Convention in November 1994. In 1998, Congress passed legislation implementing Article 3 of the torture convention as part of the Foreign Affairs Reform and Restructuring Act (search).

Almost any coercive action qualifies as torture under the Convention. It defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted."

Even a normal police interrogation of a suspect, in which — for example — police tell a suspect that his accomplices have turned on him, would seem to qualify as torture, as long as that representation caused the suspect severe mental suffering.

Torture is also prohibited by several orders in different elements of the military and law enforcement.

Reportedly, the White House's alleged executive order authorized interrogators to do such things as place detainees in uncomfortable positions, place hoods on their heads, keep them in total darkness for extended periods of time, and intimidate them with dogs. The allegations should be taken seriously, but at the same time, one military interrogator from the Vietnam era remarked to me, "People forget that not so long ago, torture involved things like broken bones."

The official word is that the FBI agent who wrote the memo that references the executive order — the memo mentions this allegedly non-existent executive order 11 times — was simply mistaken when he tried to create the impression that such robust interrogation techniques had been authorized by the White House. Given the sheer number of times the executive order was described, every individual down the line of command from the memo’s author could be forgiven for believing such an order existed, and for conforming his or her behavior to what it authorized.

If the time ever comes that U.S. law enforcement personnel are prosecuted for using unlawful interrogation techniques, they will no doubt use the memo in their defense.

If these things happened, as Amnesty International (search) and similar groups insist, then some U.S. personnel have probably violated the Convention against Torture.

Much has been made of the fact that Guantanamo Bay and Iraq are outside the jurisdiction of most U.S. courts (though one judge has asserted jurisdiction over some activities at Guantanamo) and that most of the individuals in custody in those places are enemy combatants, not prisoners of war. The problem for the administration is that even if both of these things are true, the Convention against Torture would still determine what can and cannot be legally done by U.S. personnel, because it constrains the behavior of the U.S. government no matter the venue.

The terror problem is not confined to foreigners. In recent years, U.S. citizens from Oregon to New York have been convicted of providing material support to Islamic terrorists. Some, like John Walker Lindh (search), have families whose American roots are generations old. The circumstances in which these individuals have been apprehended are so varied that courts are now expanding legal holdings that have been in place since World War II — the courts of the 1940s could not have conceived of Americans doing such things as traveling abroad, meeting or training with religious terror groups, and then returning to the U.S. to detonate radioactive bombs.

Many people would not consider frightening detainees with dogs to be a form of torture. Most would probably regard it is as an appropriate method for obtaining information that might help save innocent lives. And this points out one of the practical problems that can come from signing onto such a well-intentioned piece of international law as the Convention against Torture.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."