"Cruel and Inhuman"

It was announced last week that five of the twenty two Uygur Chinese currently imprisoned in  Guantánamo Bay would be released and sent to Albania. The 22 Uygurs who were among the suspected terrorists “swept up” by US forces in Afghanistan and Pakistan falling the overthrow of the Taliban government, and have been held at the US prison (without formal charges) in Guantánamo Bay ever since. The Washington Post reports that two years ago,

The State Department said lengthy investigations showed they were not a risk to U.S. security and were no longer of any "intelligence value" to interrogators at Guantánamo Bay. U.S. officials, reclassifying them as refugees, cleared them for release.

The Bush administration, however, would neither let them settle in the US, nor would accede to the PRC’s demands that they be returned to China, “citing fears that the Muslims might be tortured or executed.” As a result, all 22 men have instead languished in prison for an additional two years while the US attempted to find a country whose interest in currying favor with the US exceeding their fear of invoking China’s wrath.

The irony of this situation, of course, is that that all indications suggest that the conditions at Guantánamo Bay  (where there has been an established tradition of torture and other “cruel and inhuman” interrogation techniques, where there have been numerous suicide attempts, where the US has explicitly argued that the Geneva Convention accords do not even apply, where the detainees have no access to lawyers or other legal appeals—and, indeed, none of the 22 Chinese Moslems has even been charged with a crime) are possibly scarcely better than what the men might perhaps expect back in China. Out of the proverbial frying pan and into the fire.

In the wake of Congress’ hurried and largely uncritical passage of so-called “USA Patriot Act” (whose official title as introduced was the more descriptively sinister “To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes”) in late October of 2001, many critics asserted that the legislation would be used by other governments to justify repressive actions taken against their own citizens/dissidents/terrorists. In fact, by mid-2002, at least 40 foreign governments had passed legislation doing precisely that.

Regardless of the reality of the PRC’s history of repressive measures against its own citizens (including Uygurs but a wide array of other dissident groups), the US’s refusal to return the Guantanamo Bay Uygurs to China based due to concerns that in China they “might be tortured” can only be considered as a case of (to borrow another culinary metaphor) the pot calling the kettle black.

Although China’s own human rights record is far from exemplary, there is a certain poetic justice in the fact that China (represented by “Independent Expert” Wang Xuexian, who also happens to be China's deputy permanent representative to the UN) is one of 10 member states represented on the UN Committee Against Torture as it currently holds its 36th session in Geneva, and questions The US, among other States, in detail about on their record on torture (each member State has to present a regular report on compliance with the Convention against torture, and it just happened that this year—when the practice of torture by the US government has already been such contested issue—was the US’ turn).

The “list of issues to be considered” (which, together with the US’ responses run nearly 200 pages), for instance, opens with several very specific questions about Alberto Gonzalez’ famous August 2002 Dept. of Justice memorandum, together with the December 2004 Justice Dept. memorandum which replaced it—both of which appear to attempt to get sidestep the Convention’s proscription against torture by redefining torture to cover only “extreme acts,” while the UN publication which the December 2004 memorandum itself quotes as an authority on the issue offers a lower threshold whereby “the phrase ‘severe pain’ was considered sufficient to convey the idea that only acts of a certain gravity shall be considered to constitute torture.”
    The US’ written response to the preceding questions reads like a veritably Clintonesque exercise in semantic obfuscation:

The language in the CAT that defines torture and that subsequently refers to “other acts of cruel, inhuman or degrading treatment or punishment” reflects the recognition of the negotiators that torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading treatment or punishment. […]

Consistent with the Senate Report, the December 2004 memorandum also distinguishes “torture” from “other acts of cruel, inhuman or degrading treatment or punishment” as expressed in Article 16 of the CAT, by explaining that torture is a more severe or extreme form of mistreatment than that described by Article 16.  The use of the word “extreme” in these contexts clarifies the meaning of the word “severe” contained in the definition of torture set forth in Article 1 of the CAT and further elaborated in the U.S. understanding. See December 2004 Memorandum at 3 (citing dictionary definitions of “severe” as “extreme”)

What this technical explanation sidesteps altogether, however, is the obvious question of why the US Dept. of Justice would have found it necessary or useful in the first place to specify, at this particular historical juncture, the precise boundary between “torture,” on the one hand, and “cruel, inhuman or degrading treatment or punishment,” on the other.

[The phrase “cruel, inhuman or degrading treatment or punishment” runs like a mantra throughout the entire “list of issues” document—to the point that the US, in a response, even offers the clunky acronym CIDTP, precisely as the US is underscoring the alleged “uncertain meaning of the phrase” (but only after the phrase has already appeared in its entirety at least 8 times in previous responses, and though the CIDTP acronym is then used precisely once in the rest of the document). The issue which is being addressed in this particular response (to question #43, about the US’ reservation, when it ratified the Convention Against Torture in 1994, saying that it would only observe the Convention “insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States”), furthermore, concerns precisely the relationship between the UN’s prohibition against “cruel, inhuman or degrading” punishment, and the US Constitution’s own prohibition against “cruel, unusual and inhumane treatment.” What is the relationship between the UN’s notion of the “inhuman” and the Constitution’s notion of the “inhumane”? (One would appear to strip the subject of their humanity, while the other would appear to strip them of their very "humanness.") As Anthony Dworkin summarizes in a 2005 Crimes of War article, Alberto Gonzales had argued that this reservation essentially created a tautology, whereby the Convention was interpreted as carrying no additional prohibitions than those which already existed under US law (a not insignificant point, given that he then used this to argue that “there is no legal prohibition under the Convention Against Torture on cruel, inhuman and degrading treatment with respect to aliens overseas.”]

China representative Wang Xuexian, for instance, put these semantic quibbles over the precise meaning of “severe” and “extreme” (and of "inhumaneness" and "inhumanness") into perspective when he asked John Bellinger, the legal advisor to the State Department, point-blank, “"Where would you put 'waterboarding' or other forms of inhuman treatment?"” As the International Herald Tribune reports, however, Bellinger declined to go in to detail about specific interrogation techniques used by U.S. personnel, but said: "All components of the U.S. government are required to act in compliance with the law."