[QUOTE=Shivan;30157]It is a violation of international law and Congress has already spoken on this issue. Article 17 of Geneva Convention III specifically states that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." Now, if you subscribe to the notion that those we have detained in Afghanistan and Iraq are not prisoners of war, then I would direct you to Article 31 of Geneva Convention IV which states "no physical or loral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties." A protected person is essentially a civilian. Article 3 also states that "torture" is "prohibited at any time and in any place whatsoever."
If "waterboarding" is that clear a violation of IHL as claimed, then Congress should have legislated it away, no? Have they decided to then ignore our obligations under IHL? Have we even defined "torture" to include "waterboarding"? Rather ipse dixit to call it "torture" if not.
So, the above covers prisoners of war and civilians (i.e. those not taking part in the fight). However, many supporters of waterboarding argue that those we detain are neither of these (as if there were always some way to immediately tell). I would direct these folks to Protocal I of the Geneva Conventions. This Protocal specifically prohibits "torture of all kinds, whether physical or mental" (Art. 75). This applies to any person that has taken part in hostilities but that has not been granted prisoner of war status (Art .45).
The Geneva Conventions were ratified by the US Senate on Aug 2, 1955. This means that those Conventions are now US law, on par with the Constitution itself (see US Const., Art VI). The US treats Protocal I as customary international law which essentially means that the US views this as universal and indisputable.
For those that might take issue with international law, Congress has also spoken on this issue in federal law. Title 18, section 2340A of the United States Code specifically provides for the prosecution of any person that commits or attempts to commit torture. Torture is defined in title 18, section 2340 as:
The applicability of this provision turns on whether the person is acting under color of law and whether the act (waterboarding in this case) meets the definition of torture provided. Acting under color of law essentially means that the person is acting with some authority from the government. Military personnel, contractors, CIA, etc. would qualify. Reasonable minds may differ as whether waterboarding satisfies the definitional requirements above. There will always be some lawyer that will engage in a Clintonian definitional word game, but one could reasonably conclude that waterboarding satisfies the criteria.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.
Another issue to consider, however, even if you subscribe to the notion that waterboarding does not meet this criteria is the effect our acquiescence with regard to this interrogation method has on the public. A few of the previous posts indicates that the Arab world is/was outraged by the Abu Ghraib incident. We attempted to make up for this mistake by prosecuting those responsible. However, if we condone waterboarding, do we not cheapen the judicial process with regard to Abu Ghraib. In other words, although we were genuinely shocked over the treatment our people subjected prisoners to, do we send a different message by condoning waterbaording?
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