Was it legal for the US government to torture detainees?

Question

After the events of 9/11 the Bush administration started torturing (by international standards of the word) people suspected of terrorism. For example "enhanced interrogation" was used which included things such as water boarding. It's my understanding this was allowed, because according to lawyers such as John Yoo, the methods that they were using did not fit the definition of what the US considered torture.

It has been found the John Yoo's argument was poor but he never faced charges.

Did anything illegal happen? Was it illegal for the government to use enhanced interrogator and was it illegal for John Yoo to advise the government it was legal to use such techniques(for example could he be guilty of criminal negligence)?

Answer 1

Torture is defined at 18 USC 2340, and the law against torture is 18 USC 2340A. It is never illegal to give the government advice, just as it is not illegal to make a ridiculously false claim (there seems to be a popular belief that saying false things is against the law, which is a stunningly ironic belief). The only way to tell if the actions constituted torture would be to file a lawsuit (which would no doubt make its way to SCOTUS). I don't think there is any case law which one could base a prediction on. The answer certainly cannot be found with certainty based on the statutory wording.

Answer 2

Legally speaking, an act of torture committed by a US citizen outside of the US is punishable under 18 USC 2340. The definition of torture used in this statute includes:

'torture' means an act committed by a person ... specifically intended to inflict severe physical or mental pain or suffering ... upon another person in his custody or physical control.

And this includes:

the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

A two year study by the US independent group, The Constitution Project, concluded that it was 'indisputable' that the US forces had used torture as well as 'cruel, degrading and inhuman treatment' in many interrogations.

And that 'the nations most senior officials' bear ultimate responsibility for allowing and contributing to the spread of these techniques and that there was substantial evidence that the information gained by these techniques were neither reliable or useful.

Whilst Amnesty International and others have criticised the Military Commissions Act of 2006 for approving a system that uses torture and for destroying mechanisms for judicial review created by Hamdan vs Rumsfeld and for creating a parallel legal system below international standards.

Also, in 2008, an independent commission chaired the former Secretary of Defense, James Schlesinger, reported that what took place at Abu Gharib prison, later renamed Baghdad Prison, was due to the 'sadism' on part of the officers working the night shift, but that also responsibility for the 'mistreatment' of prisoners went higher up the chain of command back to Washington.