Experts' view on presumably lame torture technique

[Wakinyan]

In Salon’s recap of the republican candidates YouTube debate, the Salon writer say (at “87 Minutes”):

… waterboarding, which most experts consider torture under the Geneva Conventions …

According to Wikipedia, waterboarding is a

… technique that simulates drowning in a controlled environment.

And torture is defined as

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person /…/”

The “experts” who do not consider waterboarding torture, what are there arguments?

[Si_Amigo]

Holier than thou denial. The congress should have subjected the new AG to a waterboarding question and answer session to see if it would have helped him give a straight answer.

[John_Mace]

I don’t know if they were “experts” (whatever that is), but what I’ve heard as a justification is that we put our Special Ops guys thru this as part of their training. I would say that it’s one thing when you know the guy is doing everything humanly possible not to kill you (as our Special Ops guys would know), and when you’re a captured prisoner and have no idea what motives your captors have.

Also, I would assume the Special Ops guys give their consent.

[WoodenTaco]

A lot of the time, they skirt around the question.
“Senator, isn’t waterboarding torture?”
“Well, I think that our military needs all the tools available to combat terrorism, or else those crazies will nuke us! Everybody panic!”

[Santo_Rugger]

I was under the impression was not that water boarding wasn’t torture, but that those who were water boarded were not prisoners of war, and therefore not subject to the third Geneva Convention.

[pravnik]

Torture as a crime is defined in the U.S. Code, specifically Title 18 Section 2340, as follows:

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" includes all areas under the jurisdiction
  of the United States including any of the places described in
  sections 5 and 7 of this title and section 46501(2) of title 49.

The Justice Department under the current administration decided that waterboarding doesn’t meet that definition of torture. The arguments mainly come from a 50 page memo written in 2002 by the Justice Department’s Office Of Legal Counsel, led by Jay S. Bybee, now a U.S. Judge for the Ninth Circuit Court of Appeals. In its own words:

In Part I, we examine the criminal statue’s text and history. We conclude that for an act to constitute toture as defined by Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration eg. lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole makes plain that it prohibits only extreme acts.

For counterpoint, an op ed from the Washington Post in disagreement: Torturing the Law: The Justice Department’s Legal Contortions on Interrogation

[Zsofia]

@John Mace

I don’t know if they were “experts” (whatever that is), but what I’ve heard as a justification is that we put our Special Ops guys thru this as part of their training. I would say that it’s one thing when you know the guy is doing everything humanly possible not to kill you (as our Special Ops guys would know), and when you’re a captured prisoner and have no idea what motives your captors have.

Also, I would assume the Special Ops guys give their consent.

Also, the reason we do it to those guys is to prepare them for getting tortured. Think about it.

I have read that we prosecuted some of those Japanese guys for war crimes that were largely torture by waterboarding.

[John_Mace]

@Zsofia

Also, the reason we do it to those guys is to prepare them for getting tortured. Think about it.

Yeah, I remember hearing that, too. I should’ve added that to my post.

I have read that we prosecuted some of those Japanese guys for war crimes that were largely torture by waterboarding.

The winners never get prosecuted.

Have you seen “Fog of War”? McNamara says that he’s absolutely certain some in the US would have been prosecuted for war crimes if we had lost WWII. That’s an excellent film, btw. See it if you haven’t. Very, very dry… but very, very good.

[pravnik]

More on the Bybee Memo: read it for yourself.

The Bybee Memo (warning: pdf)

Wikipedia says that the Bybee Memo was superseded by a later DOJ memo (news to me), so here’s that one too.

LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A

[John_Mace]

@Santo Rugger

I was under the impression was not that water boarding wasn’t torture, but that those who were water boarded were not prisoners of war, and therefore not subject to the third Geneva Convention.

Some have used that argument, and some have argued that it isn’t torture.

And there isn’t much of a case to be made that these guys like Khalid Sheik Mohamed is a POW (as per the 3rd). The issue is whether or not they are “protected persons” as defined in the 4th convention:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
The provisions of Part II are, however, wider in application, as defined in Article 13Database ‘IHL - Treaties & Comments’, View ‘1.Traités \1.2. Par Article’.
Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention.

[Moirai]

This administration is simply not interested in human rights- not for prisoners, not for terrorists, not for criminals… and not for you.

[John_Mace]

@EJsGirl

This administration is simply not interested in human rights- not for prisoners, not for terrorists, not for criminals… and not for you.

An interesting opinion, but not a fact.

[Zsofia]

@John Mace

Yeah, I remember hearing that, too. I should’ve added that to my post.
The winners never get prosecuted.

Have you seen “Fog of War”? McNamara says that he’s absolutely certain some in the US would have been prosecuted for war crimes if we had lost WWII. That’s an excellent film, btw. See it if you haven’t. Very, very dry… but very, very good.

Well, if we did prosecute Japanese military officials for it in 1945, obviously we thought it was torture then…

[John_Mace]

@John Mace

And there isn’t much of a case to be made that these guys like Khalid Sheik Mohamed is a POW (as per the 3rd).

Wow. I really mangled that sentence!

There isn’t much of a case that can be made that guys like KSM must be given POW status, per the GCs. The GCs, I believe, allow someone like him to challenge his status and get a hearing to determine if he should be treated as a POW, but I can’t see him winning that one (regardless of who is sitting in the White House).

[Moirai]

@John Mace

An interesting opinion, but not a fact.

No? Did I miss a memo about habeas corpus recently?

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is “one of our most cherished rights,” the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.

IIRC, the Military Commissions Act allows the gov’t to declare me an “enemy combatant” without presenting any evidence in open court.

On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any person determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States” by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48–51). President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.

Quotes are from Wikipedia for now- I’m in a hurry. Sorry about that.

[John_Mace]

@EJsGirl

No? Did I miss a memo about habeas corpus recently?

No. You missed the memo about this being a forum where we discuss factual answers to people’s questions. Your opinion is certainly understandable. But a fact, it is not.

[Moirai]

Is this better?

The administration’s weaseling around “water boarding is or is not torture” seems to be consistent with their other infringements of the rights of the individual, including things like greatly expanding their warrantless wiretap program and the suspension of habeas corpus. There appears to be a significant movement away from the rights of the individual and an expansion of the powers of the executive branch.

And I know a special ops guy quite well, and he has never been through a training exercise which involved water boarding (Ranger, Special Forces, even SERE school). YMMV.

[Sailboat]

I’ve read that waterboarding used to be clearly defined as torture by the US government. If that’s true, it’s disngenuous in the extreme to change the policy and act like it’s absurd to consider waterboarding torture.

Sailboat

[John_Mace]

@EJsGirl

Is this better?

The administration’s weaseling around “water boarding is or is not torture” seems to be consistent with their other infringements of the rights of the individual, including things like greatly expanding their warrantless wiretap program and the suspension of habeas corpus. There appears to be a significant movement away from the rights of the individual and an expansion of the powers of the executive branch.

And I know a special ops guy quite well, and he has never been through a training exercise which involved water boarding (Ranger, Special Forces, even SERE school). YMMV.

There was no suspension of habeas corpus. Can you cite when a writ of such was issued and was denied?

[Lust4Life]

@John Mace

Some have used that argument, and some have argued that it isn’t torture.

And there isn’t much of a case to be made that these guys like Khalid Sheik Mohamed is a POW (as per the 3rd). The issue is whether or not they are “protected persons” as defined in the 4th convention:

I was always taught that "protected persons"under the conventions were military medics who only carry arms for their own personal defence but are otherwise non combatants and don’t technically count as P.O.W.s on capture.
I think padres come under this aswell but wouldn’t swear to it.

I must admit that we were’nt trained as lawyers in this field.