Water Boarding and the Future State of Torture

Aaron Emery
Campaign For Liberty
Friday, July 3, 2009

America has been standing on shaky moral ground for a very long time. A country that was once viewed as the embodiment of justice and liberty has long been neither just, nor liberated. Rule of law, which was once cherished, has been trampled upon in the name of “national security”. In fact, despots walk among us, interact with us daily, and even hold some of the HIGHEST public offices in our country. Yet, we resist these notions that our representatives can possibly do wrong, be morally corrupt, or conceive of inhumane acts.

Of the many public spectacles that have tarnished the reputation of our once great country, I am immediately referring to the practice of “water boarding”. Stunningly, debates over the moral ambiguity regarding it are prevalent in the media now. The opinion seems to be split as to whether or not it SHOULD happen and if indeed it is torture. Of those that consider it “torture lite” many argue it to be justified because of the supposed information procured from its use. Others are not so ready to admit the need for it and shun it on the basis of morality. What is a country full of confused and misled citizens to think?

United States Code, Title 18, Chapter 113 C, Section 2340 A

This defines torture as: “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.” There are two provisions that complicate things, however.

1. This law applies only to U.S. Nationals and only covers torture conducted within the U.S.
2. Debate can be made as to whether or not a specific form of torture causes “severe physical or mental pain or suffering”.

We can clearly see the ambiguity in this policy. However, we can look elsewhere for justification and legality, and do so under the umbrella of International Law.

The War Crimes Act of 1966 — United States Code, Title 18, Section 2441

This provision prohibits any “grave breach” of the Geneva Conventions. The Third Geneva Convention declares that prisoners of war must always be “humanely treated” (Article 13) and prohibits “physical and mental torture, and any other form of coercion” (Article 18). The Fourth Geneva Convention states that civilian prisoners must be protected from “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” (Article 3).

Let us now define water boarding so any confusion may be avoided. Water boarding consists of, but is not limited to; strapping the victim to a surface, facing upward, while a cloth is held over the nose and mouth of said victim, and water is poured continuously over the victim’s face, simulating drowning. This can render the victim unable to breathe, force gagging, and feel as if he or she is drowning. Most of us have experienced the feeling of drowning while swimming; going under too long, running out of breath, and swallowing water certainly induces a state of panic and physical pain. Inducing and prolonging this sensation on someone repeatedly is certainly heinous.

Of the many weak arguments made to support these acts, a particularly fond one of supporters is that water boarding is not torture as it does not generally result in death. Yet using this logic we can assume that hacking off a prisoner’s limbs is not torture so long as we keep them alive, or that raping and sodomizing prisoners is also ok — so long as it doesn’t kill them. These silly assertions follow along the lines that since water boarding is not the MOST heinous thing, it is more acceptable, and thus, must not be torture.

According to a May 30, 2005 memo from then-Deputy Assistant Attorney General Steven G. Bradbury, water boarding had been used at least 266 times at that point on two of the top Al-Qaeda suspects behind 9/11. This is not a full account of all cases of water boarding, but further evidence that it has not been an “isolated case”…clearly. Numerous studies in the past several years have shown that torture does not render useful information. Yet, this is not the primary reason for considering it a needless act. Suppose some torture does yield good information (no evidence has supported that assertion, only ceaseless claims by those very people who deceived the public into supporting war), the benefits of gaining this supposed information is far outweighed by the harm we do to ourselves in the process. We can be assured in fact, due to our immoral acts, we have compounded the very terrorism we seek to extinguish and thus remain in a perpetual state of entanglement.

Many personal statements from detained insurgents and even admissions by leaders of insurgent and terrorist networks have declared that the number one recruiting tool currently used to obtain anti-American support (at an alarming rate) is the torture and abuse of detainees. That should clear up the notion that we gain an “edge” on terrorism by using it. What about the morality of it? Should we still argue that water boarding is not torture let us look to American precedent.

Officially known as the “International Military Tribunal for the Far East” — the “Tokyo Trials” were conducted after World War II. An international coalition, of which the U.S. was a part, convened in order to prosecute Japanese soldiers charged with torture. According to court documents, some of the top crimes prosecuted for were water-based interrogations, known then as “water cure”, “water torture”, and “water boarding”. Judge Evan Wallach, member of the Court of International Trade and Adjunct Professor in the Law of War wrote in a journal essay that the testimony from American soldiers regarding these acts was gruesome and convincing. Many Japanese soldiers were hanged after these trials for their crimes, among them water boarding. These may not have been the “gravest” of the crimes they were executed for, but nonetheless American precedent has established that it is a serious enough offense to warrant war crime proceedings and partial justification for the ultimate form of punishment.

How does this disparity between U.S. policies then and now exist? It comes from a total unwillingness to accept wrongdoing in the name of saving face, it comes from a lack of conducting root-cause analysis (as in, why are there more insurgents now than when we first occupied Iraq?), and it comes especially from a desire for revenge, be it justified or not. Knowingly constituting ill sentiment toward the U.S. and increasing recruiting efforts against us is an absolute act of tyranny and despotism against our own people. Nothing could delight these people more; they don’t HAVE to fuel their own fire, we do that for them. We need not look for a mysterious monster in the closet, the causes have been placed before us and we choose to ignore them. These are not the acts of reasonable and rational people. Those who support every action to acquire intelligence from terrorists, alleged or not, are outside the bounds of morality and reason. These “reasonings” are nothing more than vain attempts at justifying their actions and clearing their conscience of guilt.

Given the circumstances, one wonders when our government will begin to use water boarding against its own citizens, if it has not already. History has shown that the distinction between policies directed toward “enemy combatants” and U.S. citizens slowly erodes. As things become more commonplace they tend to outrage us less and eventually become more of a nuisance than a moral concern. This leads to the breakdown of policies regarding non-U.S. citizens and U.S. citizens, and even U.S. citizens can be deemed “enemy combatants” at the mere whim of high officials. At some point it becomes inevitable that these actions will be taken against U.S. citizens, perhaps for far simpler crimes.

In January, 2009 the Obama administration “officially banned” water boarding. This is a step in the right direction but the reasons behind it are not in line with what we could consider moral outrage. The administration did not ban all forms of “enhanced interrogation techniques” as would be justified, it simply banned water boarding. This enables any future president to declare that it is no longer banned and thereby condone it once again. Nor has Congress specifically classified water boarding as torture in order to prevent it in the future, this would require a simple 2/3 majority and could thereby prohibit it as well. Even the Supreme Court (that ultimate pinnacle of justice, sarcasm noted) could interpret existing anti-torture laws to include water boarding. Alas, the government has taken no REAL action to disallow its use; it has only stayed the voices of angry Americans until we forget we were even mad about it. The fact that we have to search for “legal grounds” in order to justify water boarding is ridiculous. It’s pitiful that it has come to that; we should only have to consider the moral hazard and inhumanity of it to see the error of our ways.

For all those who may believe that seeking to prohibit these acts is “coddling terrorists” we must remember that Rule of LawMUST be carried out if we wish to be a just nation. We cannot be a just nation if we fail to bring suspected terrorists to justice through legitimate trials. Additionally, the distinction of treatment between “enemy combatants” and U.S. citizens becomes dimmer each day. We invite further acts against ourselves when we condone such immoral actions and give more cause to grow hatred for the U.S. around the world. What is required is the simple and honest admission of guilt and prosecution of those government officials and their flunkies who ordered it and carried it out. Until then we will not see justice served. Let us admit our mistakes and perhaps we may become a just nation once again.

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