Thursday, January 26, 2017

“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.

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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