(Author’s Note: I am invoking the “special rules” portion of our comments policy for this posting. Comments must be polite, composed, and non-hysterical. This is for a serious discussion on the matter of waterboarding specifically and the nature of torture in general. Empty invective, gibbering tirades, and insulting comments will be unpublished at the earliest opportunity. Repeated offenses may result in temporary or permanent banning.)
This article about the practice of waterboarding has generated a lot of discussion about the practice, as well as just what defines “torture” and how it should be regulated or banned by our government.
My first reaction was surprise. I’d never had any real problems with waterboarding, as I understood it worked by simulating drowning. To my mind, “torture” has to involve an element of severe pain or bodily injury — and as I understood it, the experience of waterboarding tricked the subconscious into thinking one was drowning — but NOT ACTUALLY DROWNING. According to the article, though, it actually involves a partial drowning — water in the lungs and all that.
If that is the case, then I have to admit I was wrong. I’m not so certain, though, because this guy — an old blog-buddy — has some rather unpleasant things to say about the author’s credibility. I put a bit of trust in Boyd’s word, so I have my doubts about Mr. Nance’s description.
The details of that particular practice, however, are a good launching point for a serious discussion, one we ought to be holding: just what defines torture, and what sorts of controls ought to be placed on their use?
I’ve had a few ideas about torture that have been bouncing around in my head. First up, we ought to find a working definition of torture. The elements I’ve always considered part of the definition is the deliberate infliction of injury or extreme pain. In the cited definition of waterboarding, water is deliberately introduced into the lungs — and to me, that’s injury.
I’ll also toss in “reasonable fear of same.” Putting a gun to someone’s head would not cause pain or injury — as long as it isn’t loaded and no one pulls the trigger — but it’s still a form of torture to me.
On the other hand, I have few problems with fear and humiliation. That was the crux of waterboarding, as I understood it — it was spelled out beforehand “you will not die from this,” and repeated as necessary (with the subject not dying as the result). There was no injury to anything beyond the subject’s composure.
I’ve also put a great deal of thought into how to put legal restrictions on these techniques, to put some checks and balances that would act to restrain those licensed by the government to extract information from uncooperative subjects. And I have a couple of ideas that might curb abuses:
First, no information obtained through — well, let’s call it “rigorous interrogation” — can be used directly in any criminal trial. Period. It might be used to develop other evidence, that which can be obtained under more traditional means, but since it’s debatable just how reliable information obtained this way is, let’s just keep it out of court entirely. And if it can’t be verified by other means, then it wasn’t worth that much anyway. This ought to cut back on the “tortured confessions” pretty thoroughly.
Second, there should be some sort of investigation by a disinterested party or body after any “rigorous interrogation” case. The people who decided that “rigorous interrogation” was merited, and those who carried it out, must go before some panel that will review the facts and the decisions — and they WILL have the authority to sanction (or refer to legal authorities) cases where they decide that the decision or conduct was wrong. This will demand that those who are responsible for actually carrying out the “rigorous interrogation” policy will be held accountable for their actions every single time.
This might seem cumbersome, but one of the arguments on behalf of “rigorous interrogation” is that it is so rarely needed. Therefore, there shouldn’t be too much effort to add in a mandatory after-the-fact review for each instance.
Finally, we need to come up with some solid rules on just what constitutes “torture.” This usually provokes the hysteria I warned about in the introduction. “Torture is obscene, and even trying to come up with a precise definition is obscene, and you’re psychotic for wanting to parse the definition!” is a fairly decent summation of the sort of thing I’ve heard before, and don’t really think I need to hear again.
The problem is that we are a nation of laws, of details, of minutiae. Witness the whole unpleasant issue of abortion. We’ve decided that it’s legal based solely on the amount of time that passes from conception, and a difference of a single day can move the action from legal to questionable to illegal. We need to spell out just what is and what is not torture beforehand, or we end up with a situation like so many others — where the rules are hacked out by a series of confusing and often contradictory decisions, and the people we entrust with the responsibility of “rigorous interrogation” end up having to deal with “go ahead and do what you want, and we’ll decide after the fact whether or not it was legal — and punish you if it wasn’t.” And that is just not fair.
So, where do we draw the line? Where do we set the limits? What overarching principles and rules do we set?
Naturally, I think my own ideas are a good starting point — “the deliberate infliction of serious bodily injury or extreme pain.” Humiliation, fear, uncertainty, anxiety — those are all fair game. Breaking limbs, electrical shocks, or threatening to toss someone out of a helicopter from a couple thousand feet in the air — those are way, way out of bounds.
But between those two extremes are a world of gray. We need to shine a bit of light on the matter, to help find the line between the black and the white.
exsubnuke
I disagree with you about the unlawful combatants, there is evidence that some were just sold out, even if the evidence is false they deserve a day in court. I didn’t pay attention to the name of the person who parroted Michael Savage’s challenge I just heard on the radio “what would I do if there was a dirty bomb in my town and we caught the guy, etc. is that the situation that we have? Do we all squat down to savagery from our civilized intellect? I am a eteran and I understand the feelings of the military, but last night Oriellly was talking about Cuba releasimg video that might put our soldiers in jeopardy, doesn’t torture do that? To quote Oriely :ypu can’t have it both ways.
patrick, the terrorists behead anyone that they capture already, how could “torture” put our soldiers in jeopardy? Does anyone think before parroting that thin argument?
Thank you epador. I was beginning to think no one at all read it.
Again, we don’t ‘torture’ people until they tell us what we want to make it stop. Skilled interrogators break down their defenses until they give away the information despite themselves.
It keeps coming back to this moral equivalence the left places on us to the terrorists. Because they have a gripe, no matter how illegitimate, we are supposed to accept that. We are so much stronger and therefore supposed to back down and give them the same rights as our own citizens.
This is absurd.
We are fighting a war where geneva conventions are irrelevant based on the style and the substance of the war al-qaeda wages against us. We don’t have the luxury to sit back and afford these people rights that do not belong to them.
Let me put it this way. Say you’re playing a game of poker with friends and one of your friends just lost everything. You decide to be a nice guy and give your friend a few chips to stay in the game. Next thing you know your friend and you are the only two left and he is handing you your behind on a platter.
This is what the left wants to do with this war. We are too strong so we need to hand these guys some chips to make us look like “good people” at the expense of our national security.
Remember the hezbollah and israel conflict recently? remember the “disproportionate use of force”? this is the same kind of thing the left wants to do in this war to the US. They need a quagmire in order to make Bush look like a failure. I wonder how broken down and destroyed al-qaeda would be if this country appeared to the outside world as a united unsurmountable force. Instead we have people like Pelosi meeting with dictators, Bill Clinton trash talking our country overseas, Murtha calling our troops murderers and any number of democrats, Harry Reid included, declaring this war lost and calling our number 1 general a liar. Now what would you think if you were Osama? Obviously thats the side you buddy up to if you are going to win the war.
I think part of the problem, all alluded by Jay, is that we want to drill down to some level of detail so that we might prepare a detailed rule book along the lines of A is permissible and B is not. The distinction between the fear of being drowned and actually killing someone in this fashion is obvious. The utility of telling the bad guys up front where we are willing to go and where we are not is far less so. We cannot say that this particular technique does not work (we know that it did at least once on an ALQ big), we cannot say that upholding an outright ban on the practice provides a measure of protection for our troops (We’re not fighting the Germans in this war). About the only thing we can say is that we don’t want to because we either want to feel morally superior to our enemy, or else we just don’t want to win bad enough to pay this particular price.
Much of this is also situational, and rule books are not generally logic trees. Things that might be very horrible indeed may be acceptable, and even moral, if the tradeoff prevents something worse, say the Jack Bauer scenario. Save 9 million people at the cost of torturing one, or allow them to die and say you were right to do so? The big problem is: it is very unlikely that you will know that the given person strapped to the chair at any given time has the actual information that you need. It is quite likely that many mistakes will be made.
So maybe we have to answer some other hard questions, like is our desire to avoid inflicting this kind of suffering on someone worth the lives of many millions of Americans. On the other side: Is the fantastically small chance that any given person might have information that can only be obtained in this way, worth the inevitable price of performing these techniques on many of the wrong people?
Dave W I have a few issues with what you wrote and I really am not trying to flame or be rude but instead I’m just trying to present the otherside. it’s cool if I don’t convince you.
The first thing about what you wrote that inspired me to reply was the idea of granting rights to terrorist. First off I would like to point out that these are, accused terrorst. They have not been convicted.
I think this is a crucial distinction because as a nation we have always beleived in innocent ’till proven guilty. The reason is because the power for abuse is there. For example, what if the government accused you of being a terrorist? In a rational society you would have a right to stand up in court to your accusers and say “prove it, Show me whyyou think I am a terrorist!”
Under what you are proposing they have the right to whisk you away and torture any information out of you, without you getting a chance to demonstrate you might be innocent. Even if their motives are purely trying to avoid disaster for this country, it is not a lot of fun if you actually are innocent and someone is pretending to drown you.
Secondly, I think it this really hurts our reputation in the world. We hated Saddamm and Hitler and Stalin because they were the kind of people that whisked away their enimies to to secret prisions to be tortured. Do we really want to emmulate that?
Finally, I think it leads to bad information.
When people are being tortured they will tell you anyhting to make it stop. Anything.
Lets say again you were being tortured and someone asked you to name the capital of austrailia. (In this absurd example the people torturing don’t know that infomration) You will scream out anyhting you know about Austraila. You might scream melbourne instead of Canberra the actuall capital.
A better example lets say we have a guy named Youssef, who just for the sake of argument happens to be innocent an innocent man is accused of being a terrorist we made a mistake and don’t know it, so we torture him. before long he is telling us his cousin Achbid is planning to blow up the golden gate bridge. in the example Achbid is a just a family man, but Youseef who really knew nothing about terrorism is willing to say anyhting or blame anyone. John McCain, who knows a bit about torture has said it leads to bad information.
My point is that torture is a bad way to get good info.
In fact just recently, world war 2 interogaters have come out against this because they were able to gets good information out of the nazis without torture. One ex soldier said he got more info with a friendly game of chess and well placed questions than any of this torture crap we are doing now.
Anyhway I doubt i changed any minds but I wanted to get my two cents in.
Just my two cents. If you don’t agree don’t flame I’m just trying to show the other side.
THE BEACH BOYS never recorded any fun surf songs about “Waterboarding”, therefore you can assume that it’s not a pleasant practice to the victims.
You cannot compare WWII with today. That is apples an oranges. The Nazi’s for the most part treated our prisoners according to the conventions. Not todays enemy. They will take a sword and cut the soldiers head off while being wide awake. But if we catch that terrorist, we must not let him have the “sensation” of drowning? Come on. Wake up. ww
“…torture…torture…torture…”
Posted by Brian | October 30, 2007 6:15 PM
That’s the whole point of this post, Brian. Is waterboarding “torture”? Or is it a technique that does not cause permanent damage, severe pain or extensive suffering, but can and has produced solid results? The most common sense statement I’ve read here (and I’ve read all the comments) is Mike’s (Posted by Mike | October 30, 2007 3:38 PM) as follows:
It would be utterly stupid to take any technique to a degree that would produce a confession to anything just to make it stop. The desire is to glean actionable intelligence for the purpose of saving innocent life.
For any other purpose, many ‘techniques’ would indeed be defined as torture as it denotes evil intent. Al Qaeda often uses torture to get the person to confess to ‘sins’ in order to justify their eventual killing of that person. They use torture on a subject and then film them saying things they don’t believe or wouldn’t normally say for propaganda purposes. And they use torture for the mere sadistic pleasure of it.
I don’t know about some of you, but I don’t believe we have ever sanctioned the use of any technique for these purposes.
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On a side note, I’m surprised that nogo was the only one flagged for his comment. I would have booted Barney just for his Anna Nicole comment. And a couple others just for thoughtless blanket statements.
I tend to be legalistic about “torture”. It is defined in the Geneva Conventions as the infliction of “severe pain or suffering, physical or mental”.
However, there is no international agreement that specifically defines what is and is not torture. That is left up to the signatory nations to define. This is the gray area.
Obviously, waterboarding does not inflict severe physical pain or suffering.
And it is also questionable whether it causes severe mental pain or suffering.
Because it’s true effect is in creating intense panic and fear, without causing any lasting effects.
As I said, it’s a very gray area. But when it comes to high profile jihadist targets, I have no problem with using it, or any of the other aggressive interrogation techniques.
This is because by their own actions, they’ve placed themselves outside the protections of the Geneva Protocols.
Patrick,
I appreciate the point you make. However, having served in the military, and knowing the kind of people who are still in the service, I tend to believe in a certain amount of compitence and decency.
If there does happen to be some errant goat-herder who was sold out by his brother-in-law Khalid, his case will be getting looked at. There will be someone looking at his case file and determining what’s what. It’s not going to be a simple case of “Welcome to Gitmo. Now, strap him down boys, and don’t forget the bucket.” I have to believe, taking my own experiences into account, that there are progressive steps. If all it takes is a hot coffee and ham sandwich for him to spill his soul on what he does (or doesn’t) know in the first 10 minutes, I have a hard time believing that he’d be a candidate for waterboarding. And even if he is, use our waterboarding techniques (the one that has a medical team standing by), not the local dictator’s.
Discussions like this are tough, and decisions based on them are even tougher. I don’t envy the President and his staff for having to make them all the time. And sometimes, all the choices suck in one form or another. So, taking all that into account, as cold as it may seem, I’m still a firm believer in what I learned from Star Trek 3. “The needs of the many outweigh the needs of the few, or the one.”
If mistakes are made in the earnest pursuit of information to keep our soldiers and citizens safe, try to learn from them, and prevent those mistakes from happening again. If that means refining your methods. Do that. If that means never taking guys in for questioning that Khalid (the goat-herders brother-in-law) fingers. Do that too.
Think of me or my beilefs what you will, but I sleep sound at night, and I’m not ashamed to look in the eyes of that guy in the mirror.
Brian,
Did you actually read the position paper from the Justice Department you cite? Or did you stop when you got to the part you agreed with?
Some observations, however, are appropriate. It is clear that the specific intent element of section 2340 would be met if a defendant performed an act and “consciously desire[d]” that act to inflict severe physical or mental pain or suffering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he would have the specific intent necessary to violate sections 2340-2340A. Such an individual could be said neither consciously to desire the proscribed result, see, e.g., Bailey, 444 U.S. at 405, nor to have “knowledge or notice” that his act “would likely have resulted in” the proscribed outcome, Neiswender, 590 F.2d at 1273
So the question becomes, do the interrogators intend to cause pain and lasting mental harm (which they define in the paper as well, to which a short term “ordeal” isn’t considered lasting.) Do they intend death?
More plainly, if they don’t “intend” prolonged mental pain (as I think we’ve all agreed waterboarding doesn’t fit into the “physical pain” portion of “torture”), as the end result, or as the most likely result, then it’s not torture. If they “intend” to cause disorientation for the purposes of further interrogation (to break them down, if you will), while always under the watchful eye of a medical team to prevent physical and mental harm/pain… then you don’t meet ANY of the definitions of “torture” put out thus far.
Basically, you have to be a sadistic bastard, looking to cause physical or mental pain as the intended or likely end result, for it to be deemed “torture.”
Forgot to add in the last post,
It’s, admittedly, a VERY fine line to walk between with “intent” and waterboarding.
In a time of war when information can make the difference between 1 person dying or many, if that SOB has intell I need they’re going to give it up or suffer until they do.
I also liked Jennifer’s last statement:
“I must be old fashioned, because I really think that the solution is not in the laws, but in regulating the attorneys and the wayward agenda setting judges.”
I may have missed something, but waterboarding has definitely been described as torture when it was used on Americans in the past. There seems little doubt about its effectiveness, but it is still torture.
It’s treated as being the same if differing methods and health support functions are used.
Yet if the exact same methods (and results) are used (and obtained), if it’s administered to a volunteer… it’s different.
How odd.
ExSubNuke
The voluntary examples vs. the real thing are unquestionably quite different. In all the voluntary examples, the person undergoing the waterboarding has the free will of when to make it stop. Once they squeeze their hand or tap their foot, the activities cease. Yes, they may submit themselves to it over and over again, but once they’re done, they can get up and just walk away.
Our prisoners do not have this option. If they can only withstand it for 10 seconds, it’s done for 20. If they’re mentally broken after 10 minutes, it’s done for 20 or 30 or an hour. That feeling of helplessness is undoubtedly mental torture.
I loved your link there Steve.
I’ll quote it, since you don’t.
There are different procedures that all appear to be called “Waterboarding”. First, there is the one Mike was talking about, no water breathed in.
Another one of our methods U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth.…snip…technique induced “a flooding sense of suffocation and drowning, meant to make him talk.”
So, no water breathed in.
Another of ours Subjects were suspended in tanks of water wearing blackout masks that allowed for breathing. Within hours, the subjects felt tension and so-called environmental anxiety
Several hours, somehow, I don’t think he was breathing water.
Now, on to the one we called a “war crime”
The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.
See the difference? He was in danger of drowning. He was breathing water.
See the difference?
The khmer rouge were fond of waterboarding while doing genocide in Cambodia.
The Spanish inquistion was where it allegedly started. the called it tortura del agua. Don’t speak spanish but I think that means a form of torture.
The victim while not suffering actual physical damage thinks they are going to Die. If thinking you are going to die does not cause incredible torment I’m not sure what does.
I did a google on whether drowning is painful the annswers that came back suggest it is extremly painful I imagine in order to make you feel you are drowning can’t be fun.
Make no mistake waterboarding is torture. If you are for it at least call it what it is and say the U.S. should torture.
I still have not seen anyone provide a good fact why we should not be allowed to water board terrorists if they have important information we need. No physical damage, good information, no impact on how American prisoners are treated, and issues of morality are not applicable. QED.
Runtum, the technique that the Spanish Inquisition used was not the same as waterboarding so its name is hardly proof of anything. Yours is not the most impressive logic we’ve seen.
Here’s a simple exercise, if waterboarding is so bad, it should be possible for an opponent of it to make a coherent and persuasive argument against it without using the word “torture”.