Why Doesn’t Congress Simply Ban Torture?

This is something that is coming up a lot; instead of holding up the confirmation of Mukasay, Congress should simply ban torture, such as by passing the Biden bill. This is latest position of the Washington Post. Well, Marty Lederman explains clearly that “if there is any single thing imaginable that the Senate, the Congress, and the world community have not “declined to do,” it is to ban torture categorically”. Consider the following:

“–On July 6, 1955, the Senate unanimously gave its advice and consent to the ratification of the Geneva Conventions, each of which (in Article 3, which applies to al Qaeda detainees) categorically prohibits “torture” (not to mention “cruel treatment”).

— On October 27, 1990, the Senate unanimously gave its advice and consent to the ratification of the Convention Against Torture, article 2(1) of which obligated the United States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

— In compliance with article 2(1) of the CAT, in 1994 the Senate and House approved, and on April 30, 1994 President Clinton signed, the Torture Act, which categorically prohibits torture outside the United States (18 U.S.C. 2340A(a)).

— And it’s not as if torture was legal even before the Senate, House and President acted on these instruments. As the Supreme Court recently explained, under international law (including the laws of war binding on the executive branch), the flat ban on torture is among the handful of international law norms with the greatest “definite content and acceptance among civilized nations”: Even for purposes of civil liability, “the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind”.

Even so, the Biden bill — which requires all US personnel (including the CIA) to stick to the interrogation techniques of the Army Field Manual– does serve a useful purpose in that it would place another barrier against the illegal actions of the Bush administration. Still, Biden bill or not, torture is unlawful. Lederman suggests a possible compromise: tell Bush that Mukasey will be confirmed only if Bush signs the Biden bill, something he is clearly not disposed to do. Whatever the outcome, I think the day will come when Bush and Cheney will be charged with war crimes, and rightly so. But for now: Mukasay should not be confirmed.