Yes, Waterboarding is Torture

I am dumbfounded that this could ever in a million years be a controversial issue. I'm not prepared to tell you exactly where the legal line is between "legitimate aggressive interrogation" and "torture," but I can tell you that — wherever in the fog that line may lie — the practice of waterboarding — "the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning" — is miles over the line.

I am referring, of course, to Attorney General nominee Judge Michael Mukasey's refusal to answer the straightforward question asked by Senator Sheldon Whitehouse (D–RI): Is waterboarding constitutional? Right now, I'm watching MSNBC Live with Dan Abrams, a show I make a particular point of watching when there is a significant legal controversy. Dan Abrams is a lawyer himself, so he can often speak with considerably greater clarity than us non-lawyer people. Pressed by his right-wing guest Cliff May to give a definition of torture, but then interrupted every time he tried to answer, Dan Abrams cut into the middle of the following commercial break to read a dictionary definition of torture:

The act of inflicting excruciating pain as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty. — Dan Abrams, quoting an unspecified dictionary

The Geneva Conventions don't have a definition of torture, but the reference to it in the Fourth Geneva Convention is couched thusly: it prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." Protocol II goes on to prohibit, at any time, in any place whatsoever, to any person who has ceased actual combat,

1. violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
2. collective punishments;
3. taking of hostages;
4. acts of terrorism;
5. outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
6. slavery and the slave trade in all their forms;
7. pillage;
8. threats to commit any or the foregoing acts.

There's no direct answer in that particular language to the question of whether waterboarding is torture, but it takes an unimaginably twisted definition of torture to exclude simulated drowning. In fact, it takes an unimaginably twisted definition to exclude waterboarding from "violence to the physical and mental well-being of persons."

I've never been waterboarded, but I did once come seriously close to drowning, and it's not an experience I care to repeat. It brought me to a remarkable level of mental and emotional focus: having already exhausted myself to the point that I would have collapsed in any normal situation, I knew that the only thing that mattered to me was that I somehow do whatever was necessary to survive. In my case, it was a matter of swimming a short distance to get myself out of a river current that was stronger than I could handle, but if I were strapped to a plank in a prison cell, I would say absolutely anything I thought my interrogators wanted to hear. That establishes both that it is torture and that it would be unreliable in extracting "actionable intelligence."

Since Cliff May brought it up, let's look at the "Ticking Time Bomb" scenario. You have a terrorist who has been captured, and you have reason to believe (or perhaps he has even said) that he knows details of a plot that will kill a large number of people, just a short time from now. You ask him nicely, pretty please, would he mind awfully much telling us where and how to neutralize the threat, and he demurs. What is the scope of the interrogation tools that are permissible in that situation? Can you torture this guy? Can you ram a steak knife into his thigh? Can you waterboard him? Can you cut off his pinky finger or break his kneecap? Can you slap him upside the head repeatedly? Can you tie him up and tickle him? Can you threaten to hunt down his wife and children? Can you take him over your knee and spank him like a child? Some of those are tougher questions than others, but waterboarding is definitely a gimme.

Setting aside for the moment the obvious ethical and legal considerations, though, let's take a cold and calculating look at the question of effectiveness. One need only look to Jack Bauer and an old episode of 24 for a plausible scenario: the bad guy is being roughed up, so he tells Bauer where the nuclear bomb is. Exactly where the bomb is. Except that the bomb isn't there — it's back at the airport where they started. The point is, what possible incentive is there for this terrorist to tell you the truth, thereby thwarting the plan to which he has committed not only his life, but his immortal soul? Does it even make sense to believe he would do anything other than lie, misdirect, stall for time, or do whatever he could to keep the terror plot on track?

The Attorney General nominee Judge Mukasey should be ashamed of refusing to answer such a straightforward question, and Cliff May should find a new name for his "Foundation for the Defense of Democracies." I would suggest just changing Defense to Destruction, so you don't have to change the abbreviation. Seldom in law will you find a question that is more black-and-white, more inescapably unambiguous, than Is waterboarding torture? Hell yes, and why does anyone even need to ask?

Technorati tags: Waterboarding, Torture, MSNBC, Dan Abrams, Cliff May, Ticking Time Bomb Scenario, Michael Mukasey, Sheldon Whitehouse

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