Torture and the U.S. Senate

Those of you familiar with the Catholics in Congress report know that I included opposition to torture as a non-negotiable action for the Catholic officials surveyed. This week two amendments to the defense appropriations bill in the Senate (S. 1042) have been introduced by Sen John McCain dealing with torture and interrogation.

One of the amendments proposed was "To prohibit cruel, inhuman, or degrading treatment or punishment of persons under the custody or control of the United States Government." Part of the amendment as initially submitted stated:

(a) In General.-- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

The amendment was modified by Sen McCain himself to include the following waiver:

(b) Presidential Waiver.--(1) The President may waive the prohibition in subsection (a), on a case-by-case basis, if the President--

(A) determines that the waiver is required for a military or national security necessity; and

(B) submits the appropriate committees of Congress timely notice of the exercise of the waiver.

Following the modification, Sen McCain stated:

Mr. President, this amendment would prohibit cruel, inhuman, and degrading treatment of persons in the detention of the U.S. Government. The amendment doesn't sound like anything new. That is because it isn't. The prohibition has been a longstanding principle in both law and policy in the United States. The Universal Declaration of Human Rights adopted in 1948 states simply that: No one shall be subject to torture or cruel, inhuman, or degrading treatment or punishment. The International Covenant on Civil and Political Rights, to which the U.S. is a signatory, is the same. The Binding Convention Against Torture, negotiated by the Reagan administration, ratified by the Senate, prohibits cruel, inhuman, and degrading treatment. On last year's DOD authorization bill, the Senate passed a bipartisan amendment reaffirming that no detainee in U.S. custody can be subject to torture or cruel treatment as the U.S. has long defined these terms. All of this seems to be common sense and in accordance with longstanding American values.

Sen Warner of Virginia then stated:

I want to endorse the McCain amendment. Essentially what he is doing is codifying what is policy now. I think it is of such importance that it would require this bill to do so.

Why Sen McCain added the waiver likely has to do with the threat of a presidential veto of the appropriations bill if the original amendment was included. The waiver, I assume was part of a deal between the White House and Sen McCain to avoid a presidential veto of the bill. Sen Warner stated this will codify what is already U.S. policy. Yet, the waiver would allow the president to actually order "cruel, inhuman, or degrading treatment or punishment...on a case-by-case basis...if required for a military or national security necessity." Sen McCain references the Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights, and the Binding Convention Against Torture all which prohibit "torture and cruel, inhuman and degrading treatment". But the amendment would actually give the Congressional go-ahead to the president to use "cruel, inhuman and degrading treatment" if he deems it necessary! That's right. Not prohibit it, but allow it. My take is that Sen McCain is making a distinction between torture on the one hand and cruel, inhuman, or degrading treatment or punishment on the other. A prohibition against the use of torture seems to be U.S. policy already, though there appear to have been some unfortunate exceptions. It may be that this Sen McCain's intent is to restrict U.S. interrogators in their use of "cruel, inhuman, or degrading treatment or punishment" and not torture since there is already is a policy in place prohibiting torture. So what the amendment would give is a limitation on the use of "cruel, inhuman, or degrading treatment or punishment" but not outright prohibit it.

My question is, what is the difference between torture and "cruel, inhuman, or degrading treatment or punishment"?

When it comes to what the Church teaches, I believe there really is no difference. Kevin Miller has written about this over at HMS Blog:

From Vatican II's Gaudium et Spes (no. 27; cf. VS 80; bold added in these and following quotations):

Furthermore, whatever is opposed to life itself ..., whatever violates the integrity of the human person, such as ... torments inflicted on body or mind, attempts to coerce the will itself; ... all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator.

From the Catechism, no. 2297:

Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity.

Note that the Catechism speaks of "violence," period - it doesn't say it has to be severe. Note also that while the Catechism might seem to leave open the use of violence to do things like extract information about ongoing plots, it has to be read in the context of GS, which rules out "torments" and "attempts to coerce the will," period. And any lingering doubt about the latter point should now be resolved by the new Compendium of the Social Doctrine of the Church. Last week, I mentioned the brief quotation from its paragraph on torture that was quoted in a paper I heard at the UFL conference. I now have the Compendium, and here is a longer quotation.

404. ... In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: "Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim."830 International judicial instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances. Likewise ruled out is "the use of detention for the sole purpose of trying to obtain significant information for the trial."831 ...

830John Paul II, Address to the International Committee of the Red Cross, Geneva (15 June 1982), 5: L'Osservatore Romano, English edition, 26 July 1982, p. 3.
831John Paul II, Address to the Italian Association of Judges (31 March 2000), 4: AAS 92 (2000), 633.

There are no loopholes here. There is to be no torture or other coercion. And, I continue to maintain, this is a matter of right reason - non-Catholics should be (and should have been) able to see its truth and importance.

Both torture and "cruel, inhuman, or degrading treatment or punishment" are always morally wrong. I would like to have seen Sen McCain's original amendment considered and approved by the Senate. It is unfortunate for Catholics and all Americans that it will not.