RSSTorture
Tom Bowler | April 21, 2009
The four Bush administration memos from the Office of Legal Counsel supporting the legality of “enhanced interrogation techniques” have stimulated some discussion among libertarians at QandO. The most controversial of the questionable techniques and the one on which the case for accusing Bush administration officials of torture rests is waterboarding.
I have always wondered how waterboarding could be considered torture when U.S. military personnel are subjected to it as part of their training. Based on that, I’ve taken the position that it is not torture, and objections to Bush administration use of it seem to me to be nothing more than moral preening. It turns out that threatening to kill a prisoner constitutes torture.
18 U.S.C. sec. 2340 provides the definitions of what constitutes torture (emphasis mine):
As used in this chapter–
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from —
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or
application, of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death,
severe physical pain or suffering, or the administration or application
of mind-altering substances or other procedures calculated to disrupt
profoundly the senses or personality; and(3) “United States”
means the several States of the United States, the District of
Columbia, and the commonwealths, territories, and possessions of the
United States.
I’ve wondered how threatening to kill someone who has vowed to kill himself can be considered torture. In any case it would appear that we’re talking about legal technicalities, and clearly, not everyone subscribes to the current definition. When George Tenet went on 60 Minutes he said that those interrogation techniques did not constitute torture, and more importantly, that they prevented other planned terrorist attacks.
‘Tenet also said aggressive
interrogation tactics saved lives after Sept. 11, 2001, but insisted
that none of those tactics can be defined as torture.
“We don’t torture people,” Tenet said in an interview scheduled to air
Sunday on CBS’ “60 Minutes.” “We don’t torture people. I don’t talk
about techniques and we don’t torture people.”
Gen. David Petraeus, the U.S. commander in Iraq, said he would let Tenet “speak for himself.”
“We have a manual now that governs what we do and I think certainly for the
level of interrogator that we have, that they are very appropriate,”
Petraeus told FOX News.
Tenet said the highly criticized program of questioning “high value” targets by using sleep deprivation and water boarding, among other techniques, was more
valuable to the security of the United States than all the work done at
the FBI, the CIA and the National Security Agency, which tracks foreign
electronic communications.’
At QandO, Dale Franks first comes out against torture then offers mitigating circumstances.
…QandO has been pretty much opposed to the use of torture, and
we’ve taken some heat for it every time the subject has come up.
[...]
same thing in mind when I use the word. So I will define it here as
the intentional application of physical pain, accompanied by the
possibility of permanent injury, scarring, derangement, or death.
[...]
‘I’ve noted before that, when I was on active duty, if I’d ever been
faced with getting caught behind enemy lines in a Soviet attack in
Europe, I would like to have the option of capturing a Russian officer,
and finding out how to get back to our lines. And, if I had to hook up
a field telephone, and make a collect call to his genitals, I’d do it
without blinking, if that’s what it took to get my guys back home alive.
I wouldn’t brag about it, or mention it to anyone in responsible
authority later, but if I got found out, I’d expect to take the
Court-Martial. And, as long as I’d gotten my guys out, I’d have been
happy to do it.
Necessity, it’s often said, knows no law. But the law shouldn’t
explicitly bow to necessity. I would rather have it understood that any
torture inflicted is done without sanction, and the official
authorizing the torture may be in danger of serious sanctions if he
uses it.
Probably not. We will always have just what we have now. One politically motivated administration second guessing the one before it and criminalizing its actions in time of war.
On the other side of the QandO debate is Michael Wade.
‘Torture, however defined, is not a pretty thing. I make no bones
about having zero regard for my enemies (i.e. those who want to destroy
my country a la 9/11). If subjecting them to extreme
psychological and/or physical discomfort, or the threat of such, will
prevent further attacks, then I confess that I am happy to reward those
monsters with the penalty they richly deserve. I accept that I may be
wrong in such thinking, but I don’t find that case has been
successfully made as of yet. Indeed, I defy you to take this test and declare that “torture” can never be acceptable.
The ultimate point is, torture is a horrible thing and should be
avoided if at all humanly possible. But, unfortunately, we live in a
world where the “humanly possible” has limits. In those cases, why is
it that torture should be off limits? Is there a rational reason? I’m
willing to be convinced, but I have my doubts.’
It’s interesting that both sides of the QandO argument end up favoring the actual practice, but Franks says it should be illegal anyway, and while Wade says he could be convinced otherwise, he believes it should be permissable. Admittedly this is not the full spectrum of the torture discussion.
At any rate, let me pose two situations and two questions:
1. Someone in the CIA leaks evidence proving beyond anyone’s doubt that torture of a Guantanamo prisoner yielded information that prevented a terrorist bomb from being set off in Fenway Park during a 2004 World Series game. Is George Bush a criminal for sanctioning torture to get that information?
2. A huge bomb explodes in a Boston shopping mall on the day after Thanksgiving, the busiest shopping day of the year. Thousands of shoppers are killed. A short time later a former Guantanamo prisoner brags that he knew everything about the plan to bomb the mall while he was still in custody. Is Barack Obama to be admired for his steadfast support of this prisoner’s rights by his refusal to subject him to enhanced interrogation?
Feel free to comment.
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