Argument: US definitions of torture do not comply with international definitions
British judge Mr Justice Collins remarked in 2006 during a hearing on the holding of British residents in Guantanamo that the United States' idea of torture "doesn't appear to coincide with that of most civilised countries".
"Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006 - "III. Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 41. The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment is explicitly affirmed in article 7 of ICCPR. The Convention against Torture defines torture, and details measures to be taken by States parties to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment. 42. Article 2 (2) of the Convention states that: “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.” The right to be free from torture and cruel, inhuman or degrading treatment or punishment is a non-derogable right, and therefore no exceptional circumstances may be invoked to justify derogation. The Human Rights Committee and the Committee against Torture have consistently emphasized the absolute character of the prohibition of torture and underlined that this prohibition cannot be derogated from in any circumstances, even in war or while fighting terrorism.45
43. The prohibition of torture and “outrages upon personal dignity, in particular humiliating and degrading treatment” is also contained in common article 3 of the Geneva Conventions of 1949, to which the United States is a party. Moreover, the prohibition of torture is part of jus cogens. Torture and other inhumane acts causing severe pain or suffering, or serious injury to the body or to mental or physical health are also prohibited under international criminal law and in certain instances can amount to crimes against humanity and war crimes.46
44. The prohibition of torture provided by the relevant international standards, in particular the Convention against Torture, also encompasses the principle of nonrefoulement (art. 3 ), the obligation to investigate alleged violations promptly and bring perpetrators to justice, the prohibition of incommunicado detention, and the prohibition of the use of evidence obtained under torture in legal proceedings.
45. In view of the foregoing, the United States has the obligation to fully respect the prohibition of torture and ill-treatment. The Special Rapporteur on torture notes the reservations to the Convention and ICCPR made by the United States, indicating that it considers itself bound by the prohibition of cruel, inhuman and degrading treatment only to the extent that it means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.47 In this regard, he would like to recall the concerns of the relevant treaty bodies, which deplored the failure of the United States to include a crime of torture consistent with the Convention definition in its domestic legislation and the broadness of the reservations made by the United States."
"Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006 - "Beginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture,49 has put in place a number of policies that effectively weaken the prohibition. A concrete example is the memorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney General for the Office of Legal Council at the Department of Justice and now federal judge, to Alberto Gonzales, then Counsel to the President of the United States and now Attorney General, which attempts to significantly narrow the definition of torture and claims that the necessity of self-defence can justify violations of the law prohibiting the use of torture.50 The Special Rapporteur notes that, as indicated in the response by the United States Government to the questionnaire of 21 October 2005, this memorandum was superseded by a Department of Justice memorandum dated 30 December 2004. 47. However, several subsequent internal Department of Defense memoranda have sought to widen the boundaries of what is permissible in terms of “counter- resistance techniques” (see also section B below). On 16 April 2003, a memorandum which is currently in force was issued, authorizing 24 specific techniques. Its introduction states that “US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.”51 This formulation is ambiguous in that it implies that military necessity may override the principles of the Geneva Conventions. In this context, the Special Rapporteur also notes that in its reply to the questionnaire the United States exclusively uses the term “torture” and makes no reference to “cruel, inhuman and degrading treatment and punishment”.