Waterboarding, Just water boarding

[ProfessorB]

Congress certainly could "legislate" waterboarding away under its Article I powers to "make all laws" concerning the armed forces, though this begs two issues:

1. Only part of the Intelligence Community constitutes the armed forces for purposes of Article I jurisdiction, so this would only get at part of the problem; and

2. The administration has already reserved to itself the right to ignore acts of Congress under the presumptive authority granted under Article II's commander-in-chief clause.

My assumption is that the panoply of Bush-era executive privileges will be brought up for strenuous review by the Republican Party in Congress once a Democrat is elected president -- they're not going to be at all happy with the idea of President H. Clinton having Bush/Cheney powers.

[goesh]

http://www.msnbc.msn.com/id/21698732/

"Senate confirms Mukasey as attorney general
Bush nominee wins backing for post despite waterboarding flap"

Doesn't this sort of remind the reader of the ol' steroid game pro athletes play? You know, a performance enhancing agent gets banned, Chemists and hustlers develop an alternative not on the list, not able to be readily detected, athletes then perfrom wonderous feats of strength and agility, records get broken, kudos and perks flow their way, then they fall into disgrace once the evil chemical is identified and banned by the agencies in charge of monitoring and regulating such affairs. I had thought to title this post " The Tao of Sensory Deprivation Tanks, or, The Ying and Yang of Torture" but I haven't yet even begun to understand the Islamic mind let alone the Asian mind, so let's leave sleeping dogs alone in their slumber.

Can you imagine how many hearings and how much time it would take our august govermental bodies to come to grips with the use of sensory deprivation tanks? How much research? How many hearings? How many tax dollars for paid consultants - then the same round of inquiry and hearings applied to allies who use such techniques? there's no physical pain involved with this technique, sort of like solitary confinement in that respect or for that matter much like the general idea of isolating certain people from society to begin with. When good will, reason, brotherly love, hugs, empathy, rationality and the Golden Rule of Law fails us in the effort to prevent the loss of our lives and property, we at least can still hold the high moral ground and have lots of solemn hearings and testimony - they can't take that from us.

[Presley Cannady]

...do we really know what the interrogation technique in current practice actually entails? My own attempts to answer this question have been thwarted by reports persistently hand-waving in SERE counter-resistance techniques with those actually authorized for use on detainees.

[Tom Odom]

At McClatchy News today..

Does America (heart) waterboarding?
By Mark Paul | Moonbats and Wingnuts

... “Waterboarding is a torture technique. Period,” agrees terrorism expert Malcolm Nance at Small Wars Journal. “Waterboarding is a controlled drowning that…when done right is controlled death.” Eric Mueller, law professor at the University of North Carolina, cites decisions from Mississippi courts in the 1920s that found waterboarding to be torture, even in a case where it was used on a young black man charged with killing a white man. “If it was torture in Mississippi, then it's definitely torture, right?” Mueller asks?

[Cavguy]

Saw this thought on a political blog today, and felt it had some relevance here without getting into political banter...

With McCain likely to become the Republican nominee versus either Clinton or Obama .... all the remaining canidates are on the record opposing against the use of waterboarding or torture techniques as a policy by the USA, and I believe (not absolutely sure about McCain) most support closing Guantanamo.

So in effect, waterboarding ceases in Jan 2009, and Gitmo likely closes not long after.

Interesting development.

[Ken White]

the farm on closing Gitmo -- though, in fairness, I don't know anyone who doesn't want to close it; current Admin included. They just can't figure out what to do with the remaining residents...

Don't know whose idea Gitmo was in the first place but it was a dumb one. I couldn't figure out why they didn't just keep those guys in the 'Stan. Last count I saw, about twelve who'd been released had gone right back to doing what got them picked up in the first place -- and all that have been released were thought to have been unlikely to 'reoffend.'

[LawVol]

[QUOTE=Shivan;30157]

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.

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."

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:

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.

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.

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?

[davidbfpo]

A BBC News report on an item on the Newsnight programme (which I expect is not available in the USA).

Link:http://www.bbc.co.uk/news/world-us-canada-17990955

Secret CIA video tapes of the waterboarding of Osama Bin Laden's suspected jihadist travel arranger Abu Zubaydah show him vomiting and screaming, the BBC has learned. The tapes were destroyed by the head of the CIA's Counterterrorism Center, Jose Rodriguez. In an exclusive interview for Newsnight, Rodriguez has defended the destruction of the tapes and denied waterboarding and other interrogation techniques amount to torture.

Abu Buckwheat has a short interview clip and comments:

Waterboarding is drowning in a slow, controlled manner.

A curious time for the BBC item as waterboarding and perhaps other interrogation tactics are to the fore in a Guantanamo Bay trial, which I am sure have been covered fully elsewhere.

(Added here as this is the first clear thread on waterboarding, research found there were no threads with water boarding, although my recollection is that there are other, longer threads concerning interrogation methods and associated debating here).

[bourbon]

Originally Posted by davidbfpo

A curious time for the BBC item as waterboarding and perhaps other interrogation tactics are to the fore in a Guantanamo Bay trial, which i am sure has been covered fully elsewhere.

Jose Rodriguez came out with a book the other week, and has been making the usual media rounds. Elements on both sides of the political aisle are also trying to play the bin Laden operation card; ergo the torture-intelligence issue is being rehashed.

[davidbfpo]

The ever curious intersection of public policy (intelligence gathering for example) and commerce in the book launch mode.

Reviewing the thread I found a post by Tom Odom, which puts the debate in a different setting:

Eric Mueller, law professor at the University of North Carolina, cites decisions from Mississippi courts in the 1920s that found waterboarding to be torture, even in a case where it was used on a young black man charged with killing a white man. “If it was torture in Mississippi, then it's definitely torture, right?” Mueller asks?

[jconners]

Many US military training courses during the 1960-70s era included a POW compound exercise where individuals were subjected to "hard" and "soft" cell treatment...US military pilots, the 101st Recondo course, etc.

Water torture was part of the "hard cell" treatment given to some or all of the students in each class.

My personal experience involved a medical doctor being present during water torturing...when you pass out or vomit and block the airway, I believe that a doctor is necessary to insure that the person being water tortured is not permanently physically harmed or killed.

I knew that I would be resuscitated during the water torturing during the POW compound training...yet when regaining consciousness there was always a short time frame when I was disoriented and believed that I was indeed drowning and when subjected to water torturing again under those conditions the experience was perceived as life threatening and I struggled under that perception until I was again unconscious.

My personal experiences gained in such training...I would not subject a prisoner to water torture/water boarding...and belief that we have the technology to gain the information needed by means that do not constitute torture...

[Fuchs]

That's not so much about technology as it is about skill...


Besides; it's an often forwarded, yet entirely irrelevant argument that the U.S. did this to its own soldiers, too (I know you didn't phrase it as a pro argument):
Boxers voluntarily beat each other up. Voluntarily, and professionally. Do the same without consent and it's a crime. Nobody would ever be stupid enough to attempt to justify having beaten somebody up by pointing at boxing sports, right?

[jconners]

I concur

[carl]

Fuchs:

That is great point about boxing. I never heard anybody bring that up before. Good job.

[Bullmoose Bailey]

Originally Posted by Shivan

Personal value judgment. Let the U.S. Congress (a) define waterboarding (b) determine if it is illegal under international and/or U.S. law and (c) act accordingly.

Actually, I live in the Mid East off and on, and speak Arabic. Having mingled with Arabs from all walks of life, waterboarding, Abu Ghraib, etc. is only an issue among Western liberals. Arabs think of us a far too genteel and naive in many aspects. The greatest grievance among many Arabs towards my dear Uncle Sam is that they cannot get visas to America.

True points that our eastern establishment media will not address. Perhaps a pure example of western arrogancy, not being able to see past our own collective nose as relates to being offended by the realities of war.

I have come more and more to see this cultural divide as symptomatic of the dysfunctions attendant to the dolorous "nation that separates its warriors from its scholars."

Perhaps you are aware of a dangerous trend I've noticed emerging from the "seminar caller" sector online and on-the-air. Prosecutions of previous war crimes, i.e. severe water torture via-a-vis stomach flooding followed by stick beating to rupture, are being semantically conflated with present water-boarding techniques.

The result is that "seminar callers" are able to make the "point" that the US approves the same thing they claimed was torture when others did it, which is, of course, untrue. What saddens me is that most journalists, radio hosts and others are unlearned of the actual history and let the argument go on unchallenged.

[Polarbear1605]

Originally Posted by Bullmoose Bailey

True points that our eastern establishment media will not address. Perhaps a pure example of western arrogancy, not being able to see past our own collective nose as relates to being offended by the realities of war.

Something to think about:
This country (the US) has a long history of torture. In fact, we torture each and every day. Just ask any inmate sitting on death row if they are under “severe mental pain or suffering”. In order to establish a gauge in this discussion, while you are talking with that death row inmate, ask which event they would prefer to occur to them today; a waterboarding or an execution. The only reason we don’t call that torture is because it is sanctioned by our Rule of Law. I think a lot of folks commenting on this thread have jumped up on their high horses and are confusing dogma vs doctrine. For example, dogma is an opinion and doctrine is a written instruction.

The debate over torture since 9/11 has been centered on its definition and what “severe physical and mental pain and suffering” really means. The definition of torture in the Geneva Conventions is very nebulous. One reason it is nebulous is because whenever we sit down with those folks to discuss the definition of torture, for example, we are usually sitting across the table from a set of international reps from states that not only have a nebulous definition of torture but also employ that definition more as general guidelines vs laws. Of course, these general guideline folks are there to ensure we don’t put their state on report with the international court of public opinion.

After 9/11, the then elected administration had to make a fundamental decision on how they were going to set the strategic tapestry to fight international terrorist. They could use the US Constitutional Rule of Law or they use the Laws of War. Neither is a really good fit, US Constitutional Law stops at the boundaries of the US and affords a set of rights to the accused that can easily be used to make a mockery of the legal process. The Laws of War are not a good fit either because, comparatively speaking, they are general, vague and open for wide interpretations. Of course, the advantage of the Laws of War is they do have a certain amount of global acceptance. In any event, the 9/11 administration decided to set the strategic tapestry with the Laws of War and hence, the call for a “Global War on Terrorism”.

The other issue when defining torture is the legal issue of “intent”. I feel that because the current administration could not prove intent is the primary reason a certain X-VP is not cooling his heels in a Federal prison. Is the intent of waterboarding really to inflict severe pain and suffering, especially when it is used as a military training technique on our own pilots?

In 2007, or so, the national media starts to report that the CIA is using waterboarding (enhanced interrogation techniques) and the Department of Justice authorized it. This is interesting since it seems the presidential administration seems to not only define the legal definition of torture but also place in under Title 50 …covert ops? What else was happening in 2007? You had a majority opposition congress pushing to get there political party elected to the White House and the more issues the better. Consequently, the definition of torture has nothing to do with what is legal or what is right or wrong, it is just another example of strategic legalism used as a political tool that plays nicely into our enemy’s hands.

[tequila]

So ... do you think torture exists at all? Or just that the United States cannot be guilty of it? Or that we are guilty of it all the time, since we incarcerate people, and we should just go ahead and make it policy, like Syria?

[Polarbear1605]

Originally Posted by tequila

So ... do you think torture exists at all? Or just that the United States cannot be guilty of it? Or that we are guilty of it all the time, since we incarcerate people, and we should just go ahead and make it policy, like Syria?

Based on your first two questions I feel you are missing the point. The word torture now automatically has it own political dogma that is usually expressed as “we (the US) have no tolerance for torture”. The definition, however, is wide open and vague for both the Rule of Law and the Laws of War. In addition, the ROL and the LOW are very different things. “Does torture exist?” Sure it exists! Ask any Viet Nam US POW. We could probably say the same about Iraq and Afghanistan War if the bad guys took US soldiers and Marines as prisoners but they don’t. Instead, they execute them and desecrate their bodies and not necessarily in that order. Just so you understand the difference between the ROL and the LOW, our surviving POWs cannot sue North Viet Nam under our Constitution because it has no jurisdiction in Viet Nam. If they try to go the Laws of War route they bang into a definition that can be interpreted anyway the bad guys want and therefore the bad guys get away with torture.

Politicians, theirs and now ours, change the definition not for the good of mankind but they change it for political advantage. The 9/11 National Command Authority changed the definition for a strategic advantage in the war on terrorism; the next administration changed it for their own political advantage and gain. Another way to say that is I have problems with definition manipulation that only applies to our side and does not work against our enemies.

You are asking the right questions but you are focused on the word torture defined by political sound bits.