Legality of torture

[tater]

Another great analysis by Andy McCarthy (prosecutor of the 1993 Trade Center bombers):

http://article.nationalreview.com/33...rew-c-mccarthy

Salient points are that the US Constitutional challenges to torture with which everyone (in the US) agrees are to the 5th, 8th, and 14th Amendments. They apply only to people within the US judicial system, basically. Cruel and unusual punishment applies to what is meted out after a trial.

TORTURE AND “CID” UNDER OTHER AMERICAN AND INTERNATIONAL LAW
Still, torture and other forms of cruel, inhuman, and degrading treatment are prohibited under international law — in particular, under several human-rights treaties ratified by the United States. Under the supremacy clause, treaties are “the supreme Law of the Land.” With that understanding, it might be said that the Constitution speaks to torture. Nevertheless, had the unadorned Constitution prohibited torture, these treaties, as well as various anti-torture statutes enacted since 1994, would have been superfluous.

The Geneva Conventions prohibit torture but not in all circumstances. Recognizing that, human-rights activists pushed for the International Convention on Civil and Political Rights (ICCPR) and the U.N. Convention Against Torture and Cruel, Inhuman and Degrading Treatments (UNCAT), which were ratified by the U.S. in 1992 and 1994, respectively. Both forbid torture, and the UNCAT called for the passage of anti-torture legislation, which Congress promptly enacted.

Further, both the ICCPR and the UNCAT prohibit cruel, inhuman and degrading treatment (CID). Here, however, there is an important qualification. In consenting to both treaties, the Senate added a caveat: CID was to be understood in the U.S. as the cruel, inhuman and degrading treatment prohibited under the aforementioned Fifth, Eighth, and Fourteenth Amendments. That is, CID would be controlled by governing American constitutional law — not what activist NGOs, international law professors, and foreign regimes decided terms like “degrading treatment” might mean.

Since waterboarding (what we are really discussing here, nothing else the US has done is even close to torture) does no real physical harm, we are limited to mental pain and suffering.

As McCarthy says:

With respect to mental pain or suffering, Section 2340 does tell us that severe “means prolonged mental harm” (emphasis added). It also provides examples of the type of prolonged behavior that is prohibited: inflicting or threatening to inflict severe pain or suffering; using or threatening to use mind-altering drugs; threatening imminent death; or threatening that a third person (say, a family member) of the victim will be subjected to equivalent cruelties.

Still unclear.

He goes on to point out that while WE, the public at large do not know the actual details of the exact techniques used (there are many slight variations of the technique), members of the US Congress do know, and while they've passed laws regarding treatment of detainees, they could have—and did not—mention this particular technique specifically. Knowing this was the worst we've done, had Congress meant to, they could easily have done so. Note that this are Democrat controlled Congresses, or Rep controlled, but Dems have filibuster, and therefore any bill must be acceptable to them (Bush didn't have a supermajority like the dems had until a couple months ago).

It's a complex issue.

Personally, I'd reserve the harshest techniques (with the caveat that they are demonstrably effective, and not merely punitive) for critical cases where it might reasonably result in actionable intelligence that could prevent a major attack—this is not to be taken lightly. Note that all the while, the technique in and of itself should still be legal according the vague laws already in place. If two reasonable people can disagree about where the line is, then it's still OK, in other words.

[Skybird]

Waterboarding IS torture. It is a procedure that not only mentally raises an involuntary fear of death by drowning, but also provokes physical reaction by the body being set into a condition of agony, and additonal painful, convulsive spasms throughout the body that during the procedure is tied down.

If agony and the ultimate physical experience of drowning, which is beyond conscious control by the subject'S mind, is not torture, then NOTHING is torture.

Whether or not noticable marks of physical damage are left on or in the body, is not the criterion of torture. You can electroshock people without leaving visible marks. You can torture without breaking bones, cutting flesh and blood flowing.

This discussion about laws and paragraphs going on here is alienating, and in a way: frightening. Because it demonstrates exactly the same bureaucratic mindset you have seen in Nazi bureaucrats who with perfidious pedantism kept note and written record of the medical experiments, the orders flowing down the command lines, the crimes and decisions and processes in the killing industry - and often thought that because everything was in order with the written records and evertyhing was taking place in accordance with some written rules and orders of duty, the horrifying results therefor were "okay", too. Many of them defended themselves with saying they were ordered to do this, and that the law was like that.

They were unable or unwilling or both to look beyond the law, and question the law itself.

Sometimes some people say they are wondering how the Third Reich, and the fanatism of Nazi vasalls, could happen. You must not necessarily look into history to examine that. Looking at events after that, or even the present people today, can provide answers, too.

Also, the Stanford Prison Experiment and the Milgram Experiment are not reserved for German people with Nazi mindsets, too.

Hold the discussion for a while. Take a breath. Get back in contact with reality - and realise what it actually is that you talk about and that you think you do justice to when describing it with bureaucratic formalities only.

[UnderseaLcpl]

Good points, Sky. I only sought to provide a legal definition of torture and a benchmark. I tend to agree with you, and I said as much:

Originally Posted by me

I put waterboarding in the same class as sleep-deprivation, but I would never advocate it. It seems a rather crude means of extracting information. You'd think intel would come up with something more clever than that.

Even in the face of a clear and present danger, I would not advocate torture. There are more effective and efficient ways to obtain truthful information.

Some of you may remember the SUBSIM werewolf hunt and were-fish hunt games we played a while back. I'm sure that most of those who particiapted will remember my role in those games. I died in both those games, and even failed to recognize a werewolf under my own nose in time (Oberon), but in both games I successfully identified an enemy before anyone else did. I did that through a combination of threats, deception, politics, and the old carrot-and-stick treatment.

Those games were, of course, not reality, and in reality the subject can't kill you, but the theory behind all of my reasoning is quite sound. I learned the theory from Sgt. Purdee, a brilliant but ironically ugly intel Marine. The key in humane interrogation is to divide and conquer, and to control the flow of information. It is a difficult concept to explain, and I can't really elaborate on it within the constraints of text limits, but what you essentially want to do is to pit everyone against everyone else and keep track of who should be thinking what and when, and then find inconsistencies during cross-examination and , for lack of a word "misinformed counter-cross-examination". Anyone remember the "feeler" messages I had them send? That's an example. And there were "false-feeler" messages as well.

This is why prisoners are segregated from officers and their fellows during interrogation. Even if they have a preconceived story, they will eventually fail under instense and properly structured questioning, and the truth will lie within the inconsistencies. There really isn't any need for torture if your threats and questioning are effective enough. One just has to be creative.

Physical torture is the resort of the stupid and the brutal. A good interrogator can extract any information from anyone without inflicting any physical or lasting mental duress whatsoever. The trick is in getting the right people to do the job.

[tater]

Legalism is all that matters in this case, skybird, otherwise a "comfy chair" is torture, or being forced to listen to, I dunno, "metal" music (blech!)

No matter where the bar is set, and I agree, waterboarding is as close to the edge possible. Note that it's still a matter of how much, and how far apart. Anything that people will have done to themselves voluntarily is not "clear" one way or another to me—but they volunteer to have it done just a few times, not many. So is twice OK, and 3 times torture? <shrug>

The US only did it to 3 people, FWIW, and hasn't for several years now.