I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program. In this post, I want to focus on an interesting data point coming out of this debate. As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public. This doesn’t mean that the CIA program was legal. But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.
I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification. (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”). There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view. This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.
For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law. The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement. In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture” or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture. Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.
However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view. FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture. Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified. Another nearly 20% were willing to allow torture in “rare” cases. Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law. This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.
An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure. It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.
Again, I am not claiming that public opinion should determine whether the CIA program was legal. But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture. This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program. And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.