The Legality of Torture

The Convention against Torture isn't the only document that forbids nations and individuals from practicing torture. In 1949, the Geneva Convention also outlawed acts of torture toward prisoners of war [source: United Nations]. The United States specifically outlaws any U.S. citizen from practicing torture in Title 18 of the U.S. legal code. Anyone who kills another person through torture can face the penalty of death [source: Cornell University]. The Army Field Manual allows some methods of interrogation -- like attacking a detainee's pride -- but outlaws mental and physical torture and inhumane treatment, such as threats and beatings [source: PBS]. But what's at stake when these guidelines aren't followed?

Any political body engaged in interrogation that might be considered torture has a fine line to walk. On one hand, there's the question of extracting information needed to save lives. But on the other hand is the basic human right that the U.N. Convention against Torture grants to all people. If a military subordinate is considered to have crossed the line into torture, his or her leader could be prosecuted for war crimes. There's no statute of limitations on deaths resulting from torture [source: Chicago Sun-Times]. And military tribunals like that in The Hague, Netherlands, have an established "doctrine of command responsibility." Essentially, this holds high-ranking officials responsible for war crimes -- including torture -- that happen on their watch [source: New York Times]. There's also the consideration that a government that uses torture in effect condones torture to be used on its own people in the event that they're captured by an enemy.

But do the torture laws that protect enemy combatants captured under the normal rules of war extend to terrorists? Immediately following the Sept. 11, 2001, attacks, the federal government began debating the standard rules of the Geneva Convention. In an interview in 2001, Vice President Dick Cheney said that the U.S. would use any means at its disposal in the war on terror [source: The White House]. And ultimately, the Bush administration concluded that the Geneva Convention didn't apply to enemies in the War on Terror.

The Supreme Court disagreed, however, ruling that Common Article 3 of the Geneva Convention does apply to terror suspects -- limiting the interrogation methods available to the United States [source: New York Times].

To consider how to get around these limitations, a group of American attorneys created a 100-page document, referred to as the "Rumsfeld memo" by the Washington Post, which questioned the broad view of torture under international law [source: Washington Post]. This document also suggests some defenses a torturer may take if prosecuted for torture. The group concluded that the executive authority granted to the president of the United States and his role as commander in chief of the armed forces grants him wide powers that supersede international and domestic laws concerning torture.

Essentially, the document proposes that the president can order suspects be interrogated using methods currently considered torture in international law. Furthermore, anyone following orders to use those methods would be immune from legal proceedings. The group also laid out defenses in case charges were ever brought against anyone following these orders. Among them was a "good faith" defense, which says that the torturer was told beforehand that the act did not constitute torture [source: Wall Street Journal].

This has yet to be vetted by any court, international or otherwise.

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