You Decide

…that the United States has enacted several statutes and ratified two treaties that specifically outlaw the use of torture?

Responding in part to the horrors of World War II, in 1949 many of the world’s nations ratified the Geneva Conventions, a suite of treaties that regulates wartime activity and specifically prohibits torture. Today, 194 countries—including the United States—honor the Conventions.

So what do these treaties actually say? They're pretty straightforward: Signatories are bound to treat prisoners of war “humanely.” Specifically, they must protect POWs from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” later adding, “outrages upon personal dignity, in particular, humiliating and degrading treatment” are also forbidden.

To strengthen the prohibition, in 1994 the United States ratified the United Nations’ Convention Against Torture, which broadly defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” Article IV of the Convention mandates that parties also pass domestic laws prohibiting the practice. So it is that the 1996 federal War Crimes Act makes the act of torture abroad a felony. What’s more, under the USA PATRIOT Act (the acronym stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) our federal criminal assault laws extend to overseas facilities used by the federal government.

To make matters even clearer, in 2005 the Senate passed the Detainee Treatment Act. The act, now law, includes the so-called McCain Amendment, which prohibits “cruel, inhuman or degrading treatment or punishment” of detainees.

And finally, in June 2006, the Supreme Court ruled that terror suspects were entitled to protection from “outrages upon personal dignity, and in particular humiliating and degrading treatment,” as outlined in the Geneva Conventions.

In other words: What part of “torture is illegal” don’t you understand?

…that terrorists are illegal combatants, and as such, they neither recognize nor are protected by the Geneva Conventions?

The Geneva Conventions are all well and good when fighting a traditional enemy. Such a government can be expected to honor the Conventions; in turn, they are also entitled to the treaties’ protections. The idea is simple: You treat our POWs humanely, and we'll treat your POWs humanely.

Terrorists, though, are another matter. Al Qaeda—or any other terrorist cell, for that matter—is not a nation state. As such, its members do not wear uniforms and have never ratified the Conventions. What's more, they hide among civilians and deliberately target noncombatants—a clear violation of the fundamental principle that war is waged against armed participants.

According to this reading of the Conventions—and this is crucial—the treaties specify that they apply to civil wars in a signatory state, or, in the language of Geneva: “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The argument goes on to interpret Geneva's application “to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties…” to mean that the Conventions apply only to conflicts between nations that have ratified the conventions [emphasis added].

In this reading, the treaties do not accommodate international conflicts in which one of the parties (al Qaeda, for instance) is not a nation-state.

Clearly, an enemy that beheads journalists and drags the bloodied corpses of Marines through the streets considers itself outside the Geneva Conventions—scenarios that make quaint the notion that U.S. forces would be placed in danger of abuse were the United States known as a nation that tortures its enemies. This is an enemy that needs no outside sanction to torture.

Of course, none of this is to say that because terrorists are not protected by the Geneva Conventions, U.S. forces are free to torture them. However, when dealing with a terrorist who possesses information about an imminent attack, it seems the interrogatory hand may be freed.