In light of the spectacular nature of the case [of torture of a prisoner in a German police station] and, above all, the raging American debate on torture in connection with the Guantánamo Bay prison camp and the war on terror, on first glance this might seem oddwrites John Rosenthal in Policy Review about the fact that the European Court of Human Rights (echr) ruling went almost entirely ignored by the American news media.
But on further reflection, it is perhaps precisely its obvious relevance to the American “torture” debate that explains the American media’s indifference to the echr ruling. The ruling was announced just as a campaign to charge senior Bush administration officials with “war crimes” was reaching fever pitch this past summer. With leading news organizations like the New York Times openly abetting that campaign, it would hardly have been opportune for those same news organizations to call attention to a European precedent that puts the actions of the American officials in a more favorable light — and all the less so as the editorial boards that have been most adamant in denouncing alleged American “torture” practices typically regard Europe as a paragon of virtue in the matter of respecting international law.
…Two points are particularly notable about the echr’s [Magnus] Gäfgen ruling in light of the accusations against Rumsfeld and other Pentagon officials. The first is that the echr explicitly found that one of the techniques Rumsfeld and Haynes rejected as too severe does not meet the threshold for being regarded as torture. Citing the Army’s “tradition of restraint,” Rumsfeld and Haynes refused to authorize threats of physical violence, as well as two other “Category III” techniques, “exposure to cold weather or water” and what has come to be known as “waterboarding.” (The only “Category III” technique that was approved was the “use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.”) The Court, however, found that mere threats of violence, if they are not carried out, do not as such constitute torture. It came to this conclusion even while recognizing that Ennigkeit’s threats must have caused Gäfgen “considerable mental suffering” (§69). By the standards of the European Court of Human Rights, then, all less harsh measures should not be regarded as torture either. The Court’s finding in this regard ought not, of course, to have any direct legal relevance. The United States is not a party to the European Convention on Human Rights and it is not represented in the Council of Europe to which the echr is attached. Nonetheless, the finding is especially awkward for Physicians for Human Rights and kindred ngos, since such groups tend precisely to regard echr jurisprudence as authoritative even for countries like the United States that are not part of the Council of Europe.
…The fact that the echr acknowledged Gäfgen’s “considerable mental suffering” renders its finding even more awkward for Physicians for Human Rights, since the latter makes ample use of the notion of “psychological torture” in order to elevate physically nonaggressive interrogation practices into the torture category. The group has indeed previously devoted a 135-page report to the subject. As it so happens, Ennigkeit appears to have expressly aimed to maximize Gäfgen’s psychological torment, not only by invoking the imminent arrival of the “special officer,” but also, if Gäfgen is to be believed, by threatening to allow him to be sexually abused by fellow prisoners.
Of course, even if the interrogation methods approved by the Pentagon do not rise to the level of torture, they could well be considered “inhuman treatment,” which is likewise prohibited under the un Convention against Torture (more fully, the un “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”). No one reading the transcript of Mohammed al-Qahtani’s interrogations that was leaked to the press in2005 could doubt that the treatment to which he was subject by his interrogators was, by ordinary standards of human interaction, crude and abusive.
But this is where the second salient aspect of the echr Gäfgen ruling is especially relevant. For while the echr found that the Frankfurt police’s treatment of Gäfgen did constitute “inhuman treatment,” it accepted the Frankfurt District Court’s judgment that under the circumstances this treatment did not warrant punishment.
…One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge “massively extenuating circumstances” in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been “trained in law” is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?
To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd — and for the United States suicidal — logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.