“But do I feel it [i.e., waterboarding] works? Absolutely, I feel it works.”—President Trump
“President
Donald Trump wants to bring back waterboarding, an illegal practice widely
condemned as torture and a failed George W. Bush-era policy. Trump made the
comments in an interview with ABC News that’s scheduled to be broadcast later
Wednesday, saying ‘absolutely’ he believes torture works and would help because
‘we’re not playing on an even field.’ ‘When ISIS is doing things that no one
has ever heard of, since medieval times, would I feel strongly about
waterboarding?’ Trump said. ‘As far as I’m concerned, we have to fight fire
with fire.’
‘But do I
feel it works?’ He asked, then answered his own question: ‘Absolutely, I feel
it works.’ The president indicated his ultimate decision would be determined by
his Cabinet, primarily CIA Director Mike Pompeo and Defense Secretary James
Mattis.” The rest of this piece at Huffington Post is here.
Comment:
First, there
is no convincing evidence that “waterboarding works,” indeed, that torture in
general is an effective means toward the ends that have been used to
rationalize or justify it; but of course our current President is
dispositionally allergic to evidence in matters of factual determination or
fact-finding (it is even doubtful that he knows what it means for something to
be termed ‘a fact’). But more importantly if not urgently,
“[I]f one’s
interpretative principles and legal analysis of the terms ‘torture’ or ‘cruel
treatment’ lead to the conclusion that waterboarding is not torture or is not
cruel, then a fortiori one must abandon those interpretive principles and that
form of legal analysis. Waterboarding is a paradigmatic example of torture. It
is inconceivable that anyone involved in drafting, negotiating, signing,
ratifying or enacting the Torture Act or Common Article 3 would have thought
otherwise. Naturally, then, the U.S. itself has long considered waterboarding
to be torture and a war crime—there was no dispute about this from at least
1901 until 2002—and if our enemies used such a technique on U.S. military
personnel, no one would, in public debate, deny that such a technique is a form
of unlawful torture.” — Marty Lederman (scroll down) at the law blog, Balkinization back in
2007
Apart from
its prohibition in international law (which the U.S. not infrequently ignores
and violates in the belief that its very existence as a ‘city upon a hill’
amounts to an ‘exception to the rules’)
“[W]aterboarding
obviously is torture prohibited by the federal torture statute, 18 USC
2340-2340A. OLC [Office of Legal Counsel] apparently advised otherwise — but
how could that be? After all, waterboarding is perhaps the classic,
paradigmatic technique of acknowledge torture regimes throughout history, from
the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains,
the U.S. itself ‘has long considered waterboarding to be torture and a war
crime:’
‘As early as
1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard
labor for subjecting a suspected insurgent in the Philippines to the “water
cure.” After World War II, U.S. military commissions successfully prosecuted as
war criminals several Japanese soldiers who subjected American prisoners to
waterboarding. A U.S. army officer was court-martialed in February 1968 for
helping to waterboard a prisoner in Vietnam.’
[ …. ] The
whole point of waterboarding is to induce severe physical suffering. Therefore
it is torture, even under the limited definition in U.S. law. It ought to be as
simple as that, right? Indeed, the idea that Congress would not have considered
the acute suffering caused by waterboarding to be ‘torture’ (particularly in
light of the historical consensus that it is a paradigm case of torture) is so
utterly implausible that it is hard to imagine the Office of Legal Counsel even
considering, let alone adopting, any interpretation of the statute that would
exclude such a technique from its ambit. Under a reasonable mode of statutory
construction, one could start with the understanding that waterboarding is
torture, and work outward from that truism to see what it reveals about the meaning
of the statute for other techniques.” — Lederman again, and while I do not have
the exact reference, it’s found on the same page as the above material (he was
quoting himself from an earlier date)
My
bibliography on such matters is here.
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