NCJ Number
217017
Journal
Case Western Reserve Journal of International Law Volume: 37 Issue: 2 & 3 Dated: 2006 Pages: 175-223
Date Published
2006
Length
49 pages
Annotation
This article examines the main ways that the Bush Administration’s torture memoranda have impacted international law.
Abstract
The author argues that the torture memoranda has significantly hurt U.S foreign policy interests, including the war on terrorism, and has subjected to ridicule any U.S. claims concerning the interest in the advancement of law, particularly within Iraq and other parts of the Middle East. The main argument is that the Bush Administration’s torture memorandum represents a major step backward and that the memoranda writers twist the foundation of modern international law in the pursuit of its own policy interests. The author begins by asserting that the torture memoranda either misunderstand or ignore a number of U.S. treaty obligations that prohibit the use of torture and inhuman treatment, including the 1949 Geneva Convention and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Torture Convention”). For example, the memoranda writers contend that the Torture Convention does not preclude the use of torture or cruel, inhuman, or degrading treatment when the U.S. acts against aliens abroad, which the author argues is clearly counter to the true intentions of the Torture Convention. The excuses provided in the memoranda for the use of torture include self-defense, necessity, and presidential war powers, which arguably ignore the absolute nature of the ban on torture in the Torture Convention as well as the legitimate scope of self-defense and necessity under international law. The author also notes that the memoranda commit significant time to redefining torture so that many interrogation techniques no longer qualify as unlawful. The impact of the Goldsmith memorandum, drafted to top lawyers of the U.S. Government and included as part of The Torture Papers, is examined, which allows the U.S. to permanently remove “illegal aliens” from occupied territories and to transfer all others to other countries for an unspecified period of time to “facilitate interrogation.” Footnotes