As I was preparing for my law school lecture in immigration law, I came across the definition of torture under the international Convention Against Torture “CAT”, to which the U.S. is a party.
You may wonder why torture issues are included in an immigration law course. Well; CAT prohibits the signatory countries from deporting aliens to a place where they will be tortured. Hence, one needs to know the meaning of torture to determine if a country is practicing it.
Under CAT, torture includes governmental acts where severe physical or mental pain or suffering is intentionally inflicted on a person for an improper purpose, such as for confessions, intimidation, or coercion. However, torture does not include acts arising out of lawful sanctions.
Since I had heard a lot of talk about Guantanamo, I decided to compare the definition to what is happening there. I do not doubt our government’s assurances that we are treating the prisoners physically well: feeding them plenty, allowing them time for prayer, sports, and contact with family through mail, etc. It is possible that they are treated in Guantanamo better than they would be in their own country. Therefore, I assume they may not be suffering physically.
However, pain as defined under torture includes not only physical pain, but severe mental pain as well. We know that, after more than 5 years of confinement, most of them have not been charged with any crime yet, nor do they know if they will ever be charged, or whether they will spend the rest of their life confined, without the ability to defend themselves. Confinement over five years on a deserted island, not knowing if one is ever going to be charged with a crime against which he can raise a defense, may qualify as mental pain or suffering.
But, that may still not be enough to constitute torture. For under the definition, torture does not include pain or suffering arising from lawful sanction. Therefore, if the detention at Guantanamo is lawful, then an indefinite detention without charge would not constitute torture. But, I do think that it is hard to argue that indefinite detention without charge for over 5 years can be lawful, under basic human rights concepts.
It could very well be that many, and perhaps all, of those who are in Guantanamo deserve to be locked up for life for their heinous participation in the activities of Al-Qaeda. However, for us to know that, we need convictions under constitutionally sanctioned proceedings. But, unfortunately, and after many years of detention, our government is unable to bring charges, let alone convictions. I am not convinced that trials will endanger our security, for trials can be had with secret evidence, or with the judge reviewing evidence in private, and can also conducted before military tribunals with national security issues protected. But, until there are convictions, it appears to me that what is happening in Guantanamo may be approaching torture, at least under the definition of the CAT Convention.
My concern is not in essence for the prisoners in Guantanamo, although I sometimes wonder if any of them is a victim of mistaken identity (my suspicion is enforced by the many that were quietly released without explanation as to why they were detained or released). My real concern is about our own moral standing in the world. I happen to think that our Founding Fathers would have agreed with me; at least Thomas Payne with those immortal words: He, who would seek liberty, must first defend his enemies from oppression, lest he sets a precedent that will reach himself.