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In the Dock

Bad legal advice about torture could one day lead to prosecutions of the Bush administration in Europe.

Conor Foley

Last week's decision by the US supreme court to refuse to hear the case of a German citizen of Lebanese descent who was wrongfully arrested and tortured by CIA operatives, shows the legal gulf opening up between Europe and the United States on the issue of torture. Khalid el-Masri was apparently the victim of mistaken identity and has tried to take a civil action against the US authorities. The supreme court blocked the case without comment, but the US objections are believed to hinge on the need to preserve its "state secrets privilege".

Last month German prosecutors issued warrants against the 13 CIA agents who abducted Mr el-Masri and Germany's interior minister, Wolfgang Schäuble visited Washington to discuss the case. The US authorities have flatly refused to cooperate and the German government decided to drop proceedings in order to preserve diplomatic relations. However, thousands of people have suffered similar treatment in custody to Mr el-Masri in recent years and it is almost inevitable that senior members of the Bush administration will someday have to answer for it in a court of law.

The problems of the US authorities on this issue date back to an appalling piece of legal advice by the office of the former US attorney general, Alberto Gonzales, in August 2002. A memorandum issued at the time attempted to redefine torture with reference to agreed international legal standards, which, it argued, allowed interrogators to inflict far greater amounts of pain and cruelty than was previously thought.

The memo defined "torture" as consisting of "physical pain equivalent to in intensity to the pain which accompanied serious physical injury, such as organ failure, impairment of bodily function or even death". It distinguished this from "cruel, inhuman, or degrading treatment or punishment", which it defined as involving a lesser inflictions of pain and stated the European court of human rights as part of its authority for this claim. The memo then went on to note that while the UN convention against torture requires states to take criminal proceedings against perpetrators of the first, it merely condemns the second.

This memo formed the basis of the interrogation policy subsequently adopted and which has led to thousands of detainees having a variety of treatments inflicted on them. These are commonly claimed to include: being stripped naked, held in prolonged stress positions, deprived of food and sleep, subject to extremes of heat and cold and disorientating noise, being interrogated for days and nights at a time, and being subject to verbal and physical abuse, a variety of threats and, occasionally, simulated drowning. The former defence secretary, Donald Rumsfeld, is alleged to have personally approved the introduction of these methods. Vice president Dick Cheney has also said that subjecting prisoners to "a dunk in water" - the notorious water-board technique - is a "no-brainer" if it could save lives.

According to the original memo, the infliction of such techniques could constitute "inhuman and degrading treatment" but do not amount to "torture", a claim which it justifies with reference to one of the European court's most famous cases.

In Ireland v UK, the court did indeed find that the so-called "five techniques" carried out on a selected group of internees in Northern Ireland amounted to "cruel, inhuman and degrading treatment", overturning a previous decision of its own commission that they should be classified as torture. The memo describes both the court's reasoning and the techniques themselves in considerable detail and it is difficult to avoid the conclusion that its author felt that similar practices might suit the purposes of the Bush administration.

However, the memo fails to note that the European court has since effectively overturned this ruling. Three years before it was written, in Selmouni v France the court explicitly ruled such practices to constitute torture and noted that states were required to raise standards when it came to the protection of human rights and fundamental liberties. A variety of other international human rights bodies have similarly condemned the practices as constituting torture.

According to the memo, while the decisions of international legal bodies cannot provide authoritative interpretation of US law, they "nonetheless provide a useful barometer of the international view of what actions amount to torture". As the memo notes, torture is a crime of universal jurisdiction, which means that its perpetrators can be prosecuted anywhere in the world. This principle was most graphically illustrated when the former dictator Augusto Pinochet was arrested in London on the foot of an extradition warrant from Spain, even though he had granted himself immunity from prosecution in Chile where the crimes occurred.

The Bush administration went to considerable effort, with the passage of the Military Commissions Act of 2006 last October, to grant officials retroactive immunity from prosecution for war crimes. Most of the debate within the US has been about the applicability of the Geneva conventions in the domestic legal sphere. However, the US has also ratified the UN convention against torture, which obliges states to prosecute torturers "where the alleged offender is present in any territory under its jurisdiction".

There is an obvious contradiction between the common refrain of the Bush administration that: "we don't do torture" and its regular boasts of the value of information obtained through its "alternative set of procedures" for conducting interrogations. It rests on some bad legal advice, which it is becoming increasingly likely, will eventually land some former members of the administration in the dock of a European court.

Conor Foley is a humanitarian aid worker whose books include Combating Torture: a manual for judges and prosecutors (2003), which was published by the Human Rights Centre at the University of Essex and the UK Foreign and Commonwealth Office; and Human Rights, Human Wrongs.

© 2007 The Guardian

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