Is waterboarding consistent with the U.S.A.'s international legal obligations? How would you go about analyzing the issue? Please provide your thoughts in the comments function below.
[update] For those of you who attended Sam McCohan's talk on GITMO and enhanced interrogation techniques today at lunchtime, the Levin report that he referred to, being a report of the Senate Armed Services Committee chaired by Senator Levin on the treatment of detainees, can be found here, and an executive summary and conclusions of the report, released earlier, can be found here.
[update] For those of you who attended Sam McCohan's talk on GITMO and enhanced interrogation techniques today at lunchtime, the Levin report that he referred to, being a report of the Senate Armed Services Committee chaired by Senator Levin on the treatment of detainees, can be found here, and an executive summary and conclusions of the report, released earlier, can be found here.
BJ: I think it's pretty clear that waterboarding is torture. Torture is a jus cogen. Thus the United States by practicing waterboarding as an interrogation tactic is violating its international legal obligations. I know that is a simplistic argument but if waterboarding is torture it really is that simple of an analysis. The more difficult argument might be whether waterboarding truly is torture but from what I've read and seen I believe it to be a form of torture.
ReplyDeleteKait: I agree with BJ. Waterboarding is definitely torture, and the fact that some candidates for President are willing to accept it as a viable way to extract information tells me they haven't really thought this through.
ReplyDeleteThe New York Times article states that waterboarding has been accepted as a form of torture since the Spanish Inquisition. And, the UN Convention Against Torture defines torture as:
"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, ... 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. "
Furthermore, the convention requires all states to take action to prevent torture within its jurisdiction, and also states that no exceptional circumstance may be invoked as a justification for torture.
Waterboarding involves pouring water over the face of a restrained captive, causing him/her to feel the sensation of drowning. This process can cause extreme pain, dry drowning, damage the the lungs, brain damage, broken bones (from struggling to get free) as well as lasting psychological damage.
From these facts, it seems clear that waterboarding fits into the definition of torture from the UN Convention Against Torture b/c it causes severe mental and/or physical pain.
The NY Times article states that the Presidential candidates found torture to be a viable means to extract information. Furthermore, from the Speaker's information this week, it seems that many government officials find that it is a good interrogation technique. Thus, I would argue that the physical/mental pain is being induced for the purpose of extracting information. This also fits into the definition provided by the UN Convention.
Lastly, I think if the presidential candidates, or any other government official is okaying this as a form of interrogation, it would be safe to say that it is being done by a public official in their official capacity.
So, when you take into consideration what waterboarding is, and what it does to a person, I don't see how it doesn't constitute torture.
I agree with Kait & BJ, waterboarding is definitely torture. Public officials who endorse the use of the tactic are violating the UN Convention Against Torture. The question of the efficacy of the practice is completely irrelevant. To draw an analogy [I bet Prof. Martin just cringed], the practice of systematically exterminating all individuals within a society that are opposed to the ruling party's politics is an incredibly effective way to gain consensus amongst the people. Horribly immoral and obviously repugnant under international law but effective.
ReplyDeleteNow here's the rest of that post...
ReplyDeleteEven the question of extraterritorial use of the technique is not an issue in this debate. The Convention is designed to eliminate the use of torture world wide and as such the terms of the treaty should be interpreted to match that goal. The 'in jurisdiction' language should be read to prevent a state from dodging responsibility under technicalities. Additionally, the Convention directly prohibits the transfer of individuals if it is likely they will be subjected to torture.
There is very little space [none] to justify the use of torture. Waterboarding can easily be fit into the definition for torture. The US use of torture violates international law and there is no legitimate way around that impasse. BJ's right, it's pretty simple.
The reasoning behind the Republican view that waterboarding should be conducted is because they believe it will produce viable intelligence. Many different arguments arise on whether torture works, but I believe that the Republican party is taking the stance that this method of torture is a necessary result for intelligence against those conspiring against the United States. The above arguments are absolutely correct in determining that waterboarding is torture. Is there ever a time when torture should be done, or is there never an exception for resorting to torture?
ReplyDeleteMike: While I do believe that any sovereign nation retains the right to take all reasonable action in order to maintain their security, I do not ever see a circumstance where water boarding would be justified. Having said that, there should be a different standard applied to a potential terrorist's interrogation, as opposed to any domestic criminal suspect. I cannot speak to the particular methods, but I am inclined to think that sodium pentothal, or some other "truth serum" has probably been used by intelligence agencies for some time. This is no doubt considered torture under the UN definition, but I think most would allow the exception in a terrorist interrogation involving a nuclear device, or even certain types of chemical or biological weapons. The basic problem with relying on water boarding or any torture that relies on inflicting severe pain (aside from human rights violations), is that the suspect will likely say anything to stop the interrogation, including false or misleading information. How can you possibly rely on such intelligence as being accurate, and how can you even know for certain you are interrogating the right person? Clearly, water boarding is not the correct solution.
ReplyDeleteBrian's question could have come right out of an exam. Are there circumstances in which a state may employ torture? What is the legal analysis required to respond to this question? Seems like a good practice exercise in the run up to the exam...I look forward to some responses!
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