I suppose it is suicidal to pick a fight with a lawyer over the legality of waterboarding but I think John Hinderaker is just plain off base here:
But if waterboarding is “torture,” then it’s illegal. So why is the U.S. military still using it as a training device, last we knew? If we’re going to start prosecuting people, don’t we have to prosecute the many civilian and military leaders who have for decades inflicted waterboarding, or condoned the use of waterboarding, on our servicemen? Just a thought. Actually, of course, no one has any interest in such prosecutions (which would be absurd in any event) since there is no political advantage to be gained.
John is referring to the use of waterboarding in the military’s SERE program - “Survival, Evasion, Resistance, Escape.” Some of the program is apparently classified but enough details have leaked out to confirm that the trainees who volunteer for the program go through some pretty horrendous treatment. In fact, according to this Slate piece by William Saletan, there are some who wish to alter some of the program’s training methods, believing them too harsh. Many others disagree.
Hinderaker’s argument has some merit - if one were to forget that the trainees are not being held by the US government as prisoners and therefore, not offered protections under international agreements we have signed that clearly make waterboarding a form of “torture” under the letter and spirit of the definition as outlined in those treaties.
This is the strawman that many who are defending torture are throwing up to distract from a fundamental truth; that regardless of whether waterboarding was experienced by American military personnel, and regardless of whether it was legal or illegal under US law at the time, the fact remains that prisoners being held by our government and who were waterboarded, were illegally tortured according to, at the very least, the United Nations Convention Against Torture and, some would argue, the Geneva Conventions.
The UN Convention Against Torture has a very straightforward definition:
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Was waterboarding “intentionally inflicted” in order to obtain “information or a confession?” Of course it was. A better question is was that the intent of waterboarding SERE volunteers? Of course not.
The catch most often used by defenders of the practice is that waterboarding does not constitute “severe pain or suffering, whether physical or mental” because our own guys go through it and come out of the experience no worse for wear.
Slate’s William Saletan destroys that argument against waterboarding and also punches holes in other arguments that use SERE as a crutch:
The first difference, Ogrisseg noted, is that SERE trains soldiers to defeat interrogation, whereas “the real world interrogator wants to win.” This is a moral difference, as Hitchens observed. But it’s also a practical difference: An interrogator whose job is to extract information will behave more harshly than an interrogator who’s teaching resistance.
Second, SERE pits American interrogators against American trainees. “When dealing with non-country personnel, as in the case of detainee handling, there is greater risk of dehumanization of these personnel, and thus a greater likelihood of worse treatment,” Ogrisseg warned.
Third, SERE offers interventions that relieve stress and reinforce the unreality of the exercise. Instructors and psychologists are available “to watch the students for indications that they are not coping well with training tasks, provide corrective interventions with them long before they become overwhelmed, and if need be, remotivate students who have become overwhelmed to enable them to succeed,” Ogrisseg noted.
Fourth, SERE has “defined starting and ending points. … [T]rainees arrive on a certain date and know that they will depart on a specified date.”
Fifth and most important, SERE is voluntary. “Students can withdraw from training,” Ogrisseg noted. In a report issued four months ago, the Armed Services Committee added that in SERE, “students are even given a special phrase they can use to immediately stop” any ordeal.
Also, the UN treaty doesn’t even try and define who might or might not be protected under its strictures. It simply refers to persons in the custody of the state that is party to the agreement, anywhere the authority of the state is exercised:
Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
2. When the alleged offender is a national of that State;
3. When the victim was a national of that State if that State considers it appropriate.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.
This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
Clearly, this covers Guantanamo, Bagram, and anywhere in Iraq where we were in charge of detainees. And then there’s this stricture against rendition:
1. No State Party shall expel, return (”refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Did we have “substantial grounds for believing” that Egypt, Yemen, and a few other venues where we transferred custody of prisoners were havens for torture and mistreatment? I would say that’s a “yes” wouldn’t you?
And what about American law? The notion being advanced by torture apologists is that waterboarding wasn’t against American law at the time flies in the face of the definition of torture under Title 18, Part I, Chapter 113C, S. 2340 passed in 1994 (minor amendments in 2007) to fulfill our treaty obligations under the UN Convention Against Torture:
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 am no lawyer but my reading of this statute is pretty simple; waterboarding easily meets the definition of torture in that it intentionally inflicted “severe mental pain or suffering,” that it carried with it the “threat of imminent death,” and that it occurred in the defined jurisdiction - which holds true for most of the other enhanced interrogation techniques.
I will repeat something I’ve written previously; the law is not a straitjacket and liberals who want to throw the book at everyone but the cook at Guantanamo are perfectly willing to rip this country apart in search of vengance. Torture was not carried out to satisfy the sadistic cravings of Bush, Cheney, the CIA interrogators, or anyone else involved. The fact is, I fully grant these officials and intelligence experts the benefit of their beliefs that what they were doing was protecting the country. That has to be a mitigating factor when determining what to do with the perpetrators.
But trying to keep us safe is not an excuse or justification for torture as the UN Convention makes clear:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Guilty, yes. But I am not at all certain that torture trials of the kind envisioned by many on the left would accomplish anything. Would it “prove” that we are a nation of laws? If that is the goal then one might ask whether there is not also justice under the law and whether throwing the book at those who were trying to act in good faith is really the route to redemption. I think not. Some reckoning must take place but must it involve criminal proceedings? I envy they who possess certainty in this matter.