Why Not?

With the recent discussions of waterboarding and torture, it occurs to me that there are considerable disagreements about the subject. Some fundamental questions need to be asked — and answered — before we can have a really productive discussion on these matters.

The first is, “why shouldn’t the United States engage in interrogation techniques that some might define as torture?” I’ve heard a few arguments about that, and the problem is they don’t hold up very well.

“It weakens the protection US troops have against being tortured.” This is based on the Geneva Conventions, I believe, which are a set of treaties that govern the conduct of war and the treatment of prisoners. The prinicple behind this is “we won’t do this if you won’t either” — kind of like the agreements over chemical and biological weapons.

The problem is that the Geneva Conventions were never intended to be one-sided, and have almost never been invoked in a conflict involving the United States. In the near-century since they were signed, we have seen our enemies evade their restrictions by a number of means:

1) Not being signatories to the agreements.

2) Ignoring the agreements.

3) Declaring our troops “war criminals” and therefore not covered by the agreements.

In fact, I can only think of a single enemy of the United States that actually made any efforts towards honoring the Accords in all the conflicts we’ve fought since they were ratified, and that was Nazi Germany. So, clearly, our abiding by them has NOT given our troops very much protection. (For more personal details, ask Senator McCain.)

OK, so much for that argument. How about the one “it’s illegal?”

The United Nations passed this definition of torture 20 years ago:

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.

Congress ratified this treaty, but with the caveat that “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States,” meaning that the whole thing was rather pointless and didn’t add anything to United States law — which defines torture thus:

(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.

So, under those rules, does waterboarding comprise “torture?” There are four criteria, any one of which must be fulfilled to meet the definition.

First up, we can eliminate B and D. It does not involve mucking around with mind-altering drugs or threatening others. that leaves us with A and C.

C is probably the weaker of the two. “Imminent death” is a pretty clear term — this is the proverbial “gun to the head” case. As I understand waterboarding, the threat is “we’re going to do this to you, and we’re going to do it again and again and again until you talk.” That carries with it the implication that “this won’t kill you,” as it’s kind of pointless to say “we’re going to kill you until you talk.” Forensic science TV shows to the contrary, “dead men tell no tales.”

So that leaves us with A, “intentional infliction of severe physical pain or suffering.” And that is where the big fight is. Those terms are rather vague — where does physical pain become “severe?” I’ve had second and third degree burns, had surgery on certain tender body parts, slipped on parallel bars and ended up straddling them from a handstand, caught my face on a bedspring (I was four or so at the time — gimme a break), and passed gas in a small shower. With the exception of one incident with boiling water and the bedspring, none of them left scars. And only once do I recall the pain being so severe I had to scream. (that was the quart or so of boiling water I spilled on my bare forearm.)

So, what constitutes “severe physical pain and suffering?” It’s left vague, but if we strip out the modifiers “severe” and “physical,” we have a working definition to begin:

the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression, and embarrassment from scarring, all of which are part of the “general damages” recoverable by someone injured by another’s negligence or intentional attack. The dollar value of damages for pain and suffering is subjective, as distinguished from medical bills, future medicals, and lost wages which can be calculated, called “special damages.”

The key here seems to be the meaning of the word “severe.” Everyone, it seems, has their own definition of “severe.” Mine is a very high standard; others set it lower.

And to me, the technique of making a person’s subconscious believe that it is drowning WITHOUT actually beginning the drowning process — introduction of water into the lungs — is no doubt unpleasant, if not terrifying, but does not reach the level of “severe physical pain and suffering.” That is the sort of thing that I reserve for severing of body parts, electrocution, actual drowning, maiming, impaling, infliction of tremendous pain, evisceration, and the like.

Of course, Congress could solve all this by simply passing a law outlawing waterboarding and similar techniques. But that would be too much like principle, and we can’t have THAT.

In short, the kinds of things that our enemies have been doing to our people ever since we first signed on to the Geneva Conventions — see Imperial Japan, North Korea, Viet Nam, and the various and sundry terrorist groups we’ve fought in Afghanistan and Iraq, among other places.

Compared to them, we’re rank amateurs and weak-stomached wimps when it comes to torture.

And I not only agree, I’m proud of us over that.

(Editor’s Note: The following was intended to be a part of the final piece, but it was accidentally published before finishing.)

The one compelling argument I’ve heard so far is “because we’re the good guys.” That torture is innately wrong and corrupting of those who commit it, regardless of motives. That’s a tough one to refute, and the only arguments that have much of a chance against it boil down to “better red-handed than dead” — that the price of such idealism might be too great.

Idealism vs. pragmatism. At what price survival? It’s a tough call.

But one we need to re-examine on a regular basis, or it becomes a moot point. Remember, Mahatma Gandhi urged that the Jews in Nazi Germany should have “The Jews should have offered themselves to the butcher’s knife” and “(t)hey should have thrown themselves into the sea from cliffs” to preserve their moral high ground, instead of resisting.

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