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Originally Posted by Undertoad
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First, define torture. This administration has had a more difficult time defining torture than Bill Clinton did defining 'sex'. It would be humorous if the stakes weren't so high. A simple definition of 'torture' is 'treatment you would not want inflicted on your soldiers if they were captured'.
By this definition, stress positions, sleep deprivation, fake executions, and waterboarding are all 'torture'.
In 2004, the Justice Department attempted to set as the
legal policy of the US an incredibly narrow definition of torture.
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In the view expressed by the Justice Department memo, which differs from the view of the Army, physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For a cruel or inhuman psychological technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last "months or even years."
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Of course the Justice Department, unlike the Army, had the luxury of knowing that their personnel would never be in a situation where that definition could be used against them.
Since it's inception, the US has maintained the legal fiction that the detention facility at Guantanamo is some legal Limbo. The laws of the US do not apply, because it is in Cuba but is not an embassy. The laws of Cuba do not apply, because it is under US control via the disputed
Cuban-American Treaty of 1903. So the US has basically created a legal space in the cracks between the laws of two sovereign nations and dropped the detainees into it.
The Supreme Court at first went along with this to a degree, sort of like the lifeguards at a pool allowing a certain amount of roughhousing in the water. At some point, matters became so severe that the court intervened to apply some legal boundary before the water got bloody.
While nowhere near as brutal as the "Hanoi Hilton", there is not a lot of doubt that even "Class B" torture like sleep deprivation over a period of years would render any confession inadmissible in a normal American court, or even a military court trying members of its own service.
The challenge is that even if any of these defendants are found guilty, the moment that they are shipped back to their own countries or the United States for imprisonment, they will reenter the normal world and be able to appeal their convictions. Fortunately for the US, some of these countries are not democratic but are allies of the US, so they might be safely transported to another legal black hole which will prevent their physical and legal treatment from being examined in detail.