In the first, the OLC concluded that torture required the intentional infliction of severe pain or suffering of the sort commonly associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death." That is a high bar, and it can certainly be debated, but it was based on the only definition of "severe" physical pain that Congress has actually enacted--in the laws applicable to medical reimbursements. In the second memorandum, the OLC adopted an arguably broader definition of torture, relying more heavily on judicial decisions that have discussed the sort of treatment considered to be torture, including severe beatings, cutting off fingers, electric shocks, threats of imminent death, or extreme limitations of food and water. In both instances, however, the Justice Department confirmed that pain or suffering must be of a severe nature in order to constitute torture, and most importantly, its analysis in both memoranda suggests that whether any particular treatment constitutes torture is very often a matter of degree.
Neither memorandum addressed the metes and bounds of "cruel, inhuman or degrading" treatment, which also are forbidden by international law, because they were designed to address potential criminal liabilities and not U.S. legal obligations overall. The European Court of Human Rights, however, considered whether certain "stress" methods of interrogation, as utilized by Britain against Irish Republican Army terrorists in the 1970s, violated the European Convention on Human Rights as being "inhuman and degrading" treatment. This case involved five techniques: hooding, wall standing, exposure to noise, sleep deprivation and reduced diet, used together. Although the court ruled that these methods did not constitute torture, it did conclude that, when used in tandem, they were forbidden. Obviously, this indicates that these methods, when not used in tandem, are not cruel, inhuman or degrading.
All of this suggests that coercive, "stress" methods of interrogation are not inherently illegal--unless taken to a sufficient extreme as to constitute either torture or cruel, inhuman or degrading treatment. Where that line is should be debated. It may be that, to ensure it is not crossed, stress interrogation techniques should never be more intense than military basic training. What is certain, however, is that the ICRC's position that all "coercive" interrogations are prohibited is a statement of its own aspirations and not the current state of the law. That, like its position on Protocol I in general, is a matter of advocacy, not a neutral or impartial view.
That said, it might well be asked whom the ICRC has hurt through this advocacy. The group's complaints do not appear to have altered U.S. policy in a manner dangerous to the national interest. The 2004 electorate was evidently unmoved by the ICRC's claims, and George W. Bush has a thick skin. There is, however, one group that undeniably has suffered: the detainees held at Guantanamo Bay and elsewhere.
As in all previous wars, and likely in all future wars, there have been cases of prisoner abuse in the War on Terror. The ICRC's job is to bring such instances to the attention of the relevant American authorities, so that appropriate action, whether in the form of administrative or criminal investigations or prosecutions, can be taken and reforms considered. Like the boy who cried wolf, however, the ICRC's insistence that the United States has "violated" standards to which it is not bound has surely depleted, if not exhausted, its credit with the very authorities who may now not be listening when they should be.
In addition, there is another group that the ICRC's actions have hurt--the American taxpayer. The United States, through the State Department, is the ICRC's largest donor. In 2003 alone, the U.S. contribution was almost $200 million, or 34 percent of the ICRC's government contributions. In return, the ICRC has consistently opposed American policy during a war in which individual American civilians are the enemy's preferred target. Its role as "guardian" of the Geneva Conventions did not benefit U.S. forces during the Korean War, the Vietnam War, the Gulf War or any conflict since. The group has avoided serious scrutiny by Congress, largely because of its humanitarian reputation. But this should no longer be permitted to obscure its failures.
At the climactic moment in Peter Shaffer's 1964 play about Spain's conquest of Peru, The Royal Hunt of the Sun, a disillusioned Francisco Pizarro demands of his attendant friars, "Look: I am a peasant, I want value for money. If I go marketing for Gods, who do I buy?" Whether the American people have been getting value for their money from Geneva's peculiar deity is a question that Congress and the president should consider--sooner rather than later.Essay Types: Essay