I'm not a lawyer so I often hesitate before treading into explicitly legal grounds, but there's something which has been bugging me for some time so I'll just throw it out there.
In the recent hearings, Rumsfeld kept trying to make this fine distinction between "abuse" of prisoners and "torture" of prisoners. In much of the commentary about that, it was as if people were interpreting this to be a matter of severity or degree. That is, if you "hurt someone a little bit" we call that "abuse" as opposed "hurting someone a lot" which we call "torture."
But, that really isn't the conceptual or legal distinction between torture and abuse (I'm not sure if "prisoner abuse" has a real legal definition, so this is a bit murky.) The distinction between torture and abuse is one of intent.
If I'm a prison guard and I, for no good reason, beat the crap out of a prisoner then no matter what the severity of the beating I would not be guilty of "torture." If anyone cares and there happens to be video tape and the prisoner's lawyer gets his/her hands on it, I might find myself getting charged with some form of assault.
What would make that beating torture is if I were doing it to elicit information. From my reading of the various statutes, treaties, etc..., even fairly mild forms of "abuse" are considered to be torture, if the purpose of the activity is to elicit information.
There are a couple of reasons we take (or, at least we did until Bushco got in) such a strong legal stand against torture. The first is one people regularly discuss -- the basic Geneva Convention principle which is in place to a great degree to protect our soldiers.
But, aside from that it also gets at the heart of our entire system of justice -- the right against self-incrimination, innocent until proven guilty, no cruel and unusual punishment.
At this point, only morons with limited intellectual capacity bring up the "ticking time bomb" scenario as a justification. In that situation, we'd all do whatever had to be done no matter what the law said and when we saved the planet we'd be pardoned and declared heroes. This isn't what has been going on in Iraq and Gitmo.
Most prisoners in Iraq were innocent of anything and subsequently let go. Some have been on TV talking about it.
Many prisoners in Guantanamo have been let go. I assume they were innocent too, although since they haven't been charged with anything it isn't clear what they were thought to have been guilty of in the first place.
Abusive cops and prison guards are common. And, while the abuses can be as bad or worse as any of the scenes of torture we've seen, there's a key distinction -- the very concept of torture is anathema to our entire system of justice.
