You are blindfolded and led to a place where you are forced to lie on your back. Your hands and feet are bound. A hand shoves a rag into your mouth and holds it over your nose. It’s a little hard to breath.. Then comes the water. It filters through the rag and droplets enter your mounth or nose. As you breathe they get swept down your throat, into your trachea. It feels like your lungs are filling with water. You cough and choke. Before long you are overcome with the sensation that you are about to drown. After a minute or so, the rag is removed long enough for you to make it stop, if you choose. And if you don’t commit to talk, the rag goes back in place. The water goes into the rag. And that drowning sensation washes over you again. Some people resist for 15 seconds. The intransigent might last three minutes.
According to David Corn the technique was used by the Khmer Rouge in Cambodia. For those who were not alive in the 1970’s, here’s a brief historical sketch. America, in trying to win the Vietnam war bombed supply routes that ran through Cambodia. An incalculable amount of damage was done. The government was destablilized and was toppled at a time when the South Vietnamese government also fell. The new leader of Cambodia was named Pol Pot. Pol Pot was determined to drive Cambodia back into a distant agrarian past and was happy enough to use whatever force was required to do so. In this nation that is roughly the size of Missouri and today has a population of about 13 million people, Pol Pot slaughered 2 million of his own citizens during a reight that did not last ten years. Anyone who has seen The Killing Fields will understand the horror of the regime. Neither Hitler nor Stalin succeeded in killing so large a fraction of countrymen, or doing it in such short order.
As one might expect of such a repressive regime, torture was a means of repression. Things like owning a can opener or being able to read might brand one a member of the bourgoisie. Being such a person was often treated as a capital crime. Since gathering evidence is difficult and expensive, the Khmer Rouge took shortcuts. They extracted confessions. How did they do that? One of the ways was the one we just described. The technique, of course, could be of great use in law enforcement, because once one had chosen a suspect, one could generally get a signed confession without too much work. Sometimes there was a perfunctory trial. Then the suspect who had been tortured into a confession could simply be shot. When one needs to get two million signed confessions, truth or compuction simply slow the work too much.
What does all this have to do with anything? The technique in question is known today as waterboarding. It is being taught to army interrogators. Vice President Dick Cheney appearing on conservative talk show not long ago is quoted as saying “it’s a no-brainer” as an affirmative reply to the queston about whether America uses this form of interrogation. There have since been denials, retractions, reinterpretations, and equivocations. According to the same David Corn article above, there has also been an effort by the Bush administration to get legal coverage from Congress for the practice. And there is little doubt that the US armed forces and intelligence agents are being trained to use this technique as an integral part of interrogation. In light of all this, let’s see if we can summarize the our understanding of the position of the White House on the question of waterboarding:
Does this make sense to anyone as a consistent policy? Is waterboarding torture? The second statement says it is not, but the third statement implies that it is. And the fourth statement only makes sense if you are pretty sure it is but you want to get some kind of legal CYA for doing it anyway. The first statment contradicts the third. And the fourth fact implies that if the first is true, someone has a big legal problem. The fifth suggests its time to cover the tracks because they lead to trouble.
What ought one think of waterboarding? As David Corn points out, waterboarding is not designed to be an interrogation technique; it is desgned to obtain a confession. It was designed by a man who killed something close to one personin five in an entire nation, and he did it order to maintain absolute rule. So we might reasonably have doubts about its provenance. And we might imagine that in using it we might be judged by others as Pol Pot has been judged by us. Senator McCain used this argument to argue against any sort of change of law that would allow torture.
As a civil society, we may decide that regardless of its effectiveness we do not want to use it because of who it turns us into. Watch This. The standard for behavior in the civilized world has evolved slowly since the end of the Spanish Inquisition. Except for a few short periods of time since, that has been the last time western civilization resorted to torture on any sort of a systematic, large scale. One of those times would have been in Nazi Germany. And a number of men were tried and convicted as war criminals for their behavior after their regime fell. The standard has been pretty much the same since the Nuremburg trials. The definition of torture under US law (18 USC2340) is:
prolonged mental harm caused by or resulting from:
(A) Intentional or threatened infliction of severe physical pain or suffering.
(B) The administration or application or the threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(C) The threat of inmminent death.
(D) The threat that another person will imminently be subjected to death, or severe pain or suffering or the administration of mind altering. substances or oter procedures calculated to disrupt profoundly the senses or personality.
Article 1 of the UN Convention Against Torture is a little less specific, but it prohibits cruel and inhumane treatment for the purpose of intimidating or coercing a person. In substance and tone it is consistent with the USC code. So, how does waterboarding hold up when examined in light of this statute? Before we start, we need to know what “prolonged mental harm “ refers to. Is it days or weeks? Or is it more than just instantatious, fleeting? And what is the nature of the harm? It is impossible to interpret the language ot the statute without assuming the term “cause” precipitates an effect that might just as well be simultaneous with as it might be subsequent to the event in question. In fact, simultaneous effects would make more sense in interpretation. Were it otherwise, harm would have to be more explicitly defined in some other terms. Rather, it is implicitly defined in terms of these acts listed in A-D. So we must interpret harm as being an effect generally coincident with the cause and "prolonged" suggests “more than instantaneous.” A fleeting sense does not count. A persistent one does, and the persistence does not have to be very long.
At the outset, we have no reason to seriously believe that item D was involved in cases of Americans administering waterboarding acts. Nor do we have reason to imagine that item B plays much of a role in the practice of waterboarding. That leaves us with A & C.
Item C is interesting, because the normal interpretation is as a verbal threat, such as “tell me or I will kill you.” Doing this while holding the sharp edge of a knife against someone’s carotid artery would certainly satisfy the intent of this item. A subject may not feel like they are dying, they may not feel any pain, but they certainly would feel threatened with loss of life. Now, it turns out that the description of waterboarding goes something like this “it simulates the sensation of drowning.” What do we know about drowning? If you actually drown, you actually die. So, if you were stricken with the sense that you were in imminent danger of drowning, you would interpret that as a threat of imminent death. There is simply no question that waterboarding satisfies criteria C of the US code defining torture.
The argument one might try to use against this interpretation is that the people administering the act are trained in the technique and they know how to administer it so that a person is in no actual danger of drowning. But exactly the same argument can be made for a person holding a knife to one’s throat. It may be that the person doing that has no intention of using it, but that is irrelevant. What is relevant is that the person on the receiving end has a sensation or a reason to believe that their life actually might be in imminent danger. In this sense, the two acts are identical with respect to effect and therefore legality.
Item A is interesting, as well; but for a different reason. One might imagine that the anxiety one has as a result of an accute fear of imminent drowning would also be a severe form of suffering. Certainly accute anxiety has a coercive effect. So, arguably, item A would apply in the absence of item C. And that brings us to talking about other possible torture treatments.
Bybee, a lawyer in the department of justice at the time wrote a notorious memo about what treatments were allowed by the Bush Administration in the investigation of terror suspects. Who ordered Bybee to write his famous recommendation to Gonzlez, then the White House Counsel? What, exactly did they direct Bybee to do? And why? These would be valuable facts to understand. The Bybee Memo suggests that one may inflict pain that falls just short of “ death, permanent organ failure, or permanent impairment of bodily function.”
So, one might ask, what would one not be allowed to do? Well, one certainly would not be allowed to inflict pain that is more intense than what would kill the subject. That strikes this writer as being a pretty high threshold. In a practical sense, how does one know one has gone just short of that boundary without sometimes stepping over? When one is heaping straw on the back of a camel, how does one know one is exactly one straw short of breaking the camel’s back? You don’t know until you have broken the backs of some camels.
If one is being very literal, the Bybee memo would prohibit one from chopping a person’s head off, cutting their liver out, hacking off their arms, legs, hands, fingers, toes. You could not blind them or paralyze them from the waist down. You could not inflict third degree burns over all the body, because this would lead to a very slow and very painful death, but one could inflict third degree burns over much of the body. Things like that. If Bybee were the standard against which we are to judge torture, then all of the restraints against the practice that have emerged since the Spanish Inquisition must surely be pure bunk.
In return for Bybee’s useful advice, Bush elevated Bybee to federal judge. Gonzalez, in his confirmation hearings for the office of Attorney General denied that he believed Bybee’s ought to be the working standard for torture in this administration. But Cheney’s credible assertion suggests that while the White House may have set the threshold lower than mortal pain, it is certainly well within the bounds of normal definitions of torture.
The President wants the right to use torture in certain "special cases." But he has proposed no protections in those cases. Rather, he has argued for more secrecy and more discretionary power. He has argued, for instance, for the courts to be part of the executive branch rather than the judiciary. He has argued for secret trials. He has argued for severely restrictive evidentiary and procedural rules. He has recently argued to make it illegal for a defendent to disclose to his own legal counsel whether he he has been tortured. It is hard to think of a time in written history when the judicial process has been more severely biased and procedurally compromised. Trials in Biblical times were public; they were in Solomon’s day and they were for many many centuries preceding that. The Rwandan mass murder trials were public. Are we not so civilized as were the Jews four millenia ago? Or the Rwandan's a decade ago?
It is incumbent upon us to judge waterboarding in light of the administration’s actions and proposals. In other words, if one wished to address the problem of terrorism, none of the special procedures being recommended can be expected to profoundly improve the outcome. And almost all of them can be expected to prejudice the outcome and/or invite heinous abuses. If one wished to use terrorism laws for more nefarious purposes and do so undetected, it is hard to imagine how one might design system better than the one we see being proposed by the current White House. We see Pol Pot’s tools being used. We hear Pol Pot’s voice transforming society. What is to prevent us from suffering the same fate as Pol Pot’s fellow citizens? One might do worse than wonder.
Copyright: Stephen R. Brubaker, 2006. All Rights Reserved