Is it Torture?

One of the irritating aspects of the debate over treatment of detainees has been the abuse, imprecision and what seems purposeful vagueness on the meaning of the word torture. I have been inclined to accept the notion that waterboarding is torture. I am questioning that. Given what I have seen of it I question if it is more physically and/or psychologically damaging than things we accept as not being torture. So I ask the question, is waterboarding torture?

If it is, explain why. If not, explain why. It is perfectly acceptable for you to post an answer counter to your own beliefs. We should not therefore assume anyone holds the position taken. Aliases for those who wish to take part in the discussion, but fear open inquiry will be used to condemn them based on taking the question seriously, are also acceptable. Links to other opinions on this are also acceptable. Two ground rules.

  1. Address the question and keep the comments focused on it. We are not debating whether torture is acceptable or not. I am opposed to it, but it is not the subject of this debate.
  2. Watch this video first.

Some thoughts. Its effectiveness, or lack thereof is not evidence that it is/or is not torture, though that may be argued against. It is not in my mind worse than things which are not considered torture, such as long term incarceration. That can not be said of many techniques which are obviously psychologically and physically debilitating. That goes for both those who have waterboarding administered and who do the administering.

Please be civil.

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19 Responses to “Is it Torture?”

  1. on 29 Oct 2007 at 12:53 pm glasnost

    So I ask the question, is waterboarding torture?

    Yes.

    If it is, explain why.

    A. believable induced sensation of asphyxiation sustained over long periods.

    Comparable to making some vomit fifty times in succession. Introduces autonomous nervous system response - over and over again. The human brain is destabilized by the repeated, coerced inducement of this kind of reflex. I’m not an expert on this stuff, so perhaps an expert will prove me wrong, but it seems to be pretty obvious.
    What’s being done is, in its effects on the body, the same as the inducement of repeated pain, which is just another kind of reflex. Some kinds of non-argumented torture also maims people - but some doesn’t. Elctroshock inducement of pain leaves no scars, and the same argument could be made that a journalist could be “fine” after a single mild inducement. The point is that it’s a coerced stimulation of the autonomous systems of your body - in this case, the pain response. So is waterboarding.

    B. That video is a poor argument. There’s a lot of things that one human being may not appear to suffer permanent damage from on the first try, and yet most human beings will be permanently damaged from upon prolonged exposure.

    things which are not considered torture, such as long term incarceration.

    This is a flawed comparison for the reasons described above. “Long-term Incarceration” does not create a reflex response from the autonomous nervous system that hijacks the rational mind. Nor does it make most people insane. Large percentages of people, if subjected to waterboarding for extended periods of time - let’s say, for example, you weren’t trying to extract information, but just wanted to break them - would suffer immediately obvious, long-term psychological breakdown.

    I don’t have a study I can point to, but I suspect that’s what usually happens to people whose autonomous nervous systems are toyed with. I’ll go ask a medical friend of mine and see what they can point me to in terms of links.

    C. You know the Khmer Rouge used this, right?

    Shouldn’t that be enough?

    If not, why? Why shouldn’t the use of this physical coercive technique by totalitarian regimes be enough to permanently disbar it? Is this the Rudy Guiliani argument, where he was just quoted, “It depends on who does it?” Does anyone believe that? I don’t.

  2. on 29 Oct 2007 at 1:43 pm glasnost

    I think this video does a better job of accurately depicting a more realistic version of the technique. Around the third minute.

    http://current.com/pods/controversy/PD04399

  3. on 29 Oct 2007 at 1:48 pm Lance

    Thanks Glasnost. Please send the links. I’ll pose some questions to explore this later in the day.

  4. on 29 Oct 2007 at 1:50 pm glasnost

    You should also see this letter:

    http://hrw.org/english/docs/2006/04/06/usdom13130.htm

    I think the second video makes it extremely clear exactly how and why this technique can be expected to induce severe physical and mental suffering.

  5. on 29 Oct 2007 at 2:21 pm MichaelW

    According to 18 U.S.C. § 2340:

    (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
    (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    (C) the threat of imminent death; or
    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

    If waterboarding places the subject in fear of imminent death, which it certainly seems like it does, then I would have to say it is torture. The same would hold true if the act causes sever physical pain or suffering, which is less clear. Glasnost claims something along the lines that the senses/personality are profoundly disrupted, which would also qualify if true, although I’m doubtful on this score.

    The arguments against waterboarding fitting within the definition above are:

    A. It’s not “prolonged”

    B. The waterboardee knows, or should know, that he will not be allowed to die from the procedure.

    C. The suffering is not “severe” since it stops immediately upon cessation of the technique.

    D. Neither the senses nor personality are “profoundly” disrupted (which I would take to mean that there is no permanent change in either).

    With respect to A, this may be true if the procedure is done once and only once. But even then, if the procedure lasts more than a minute or two that may qualify as “prolonged.”

    Regarding B, I can’t see how this would be a sustainable argument since the waterboardee would have to not only trust his captors to not go over the line, he would also be required to maintain a rational and objective perspective in the midst of the procedure. Here Steve Harrigan’s experience is instructive since he described feeling like he was going to die. If a friendly news reporter feels that way, what chance is there that an enemy detainee would feel otherwise, much less that he should be expected to feel otherwise? I would say none.

    Argument C has some validity, but would come down to competing definitions requiring the court to choose one over the other. There may be (and probably is) some precedent for defining “severe” that is dispositive of the issue. Suffice it to say that the waterboarding technique probably does not rise to the level of “severe phyiscal” pain, although a different result could arise depending on the case.

    Finally, Argument D may be correct in that there is no permanent damage or changes. I’m sure that scientific experts can present views on both sides of this issue, which again if this issue is the deciding factor on waterboarding (like Argument C) then it will be ruled as “torture” on a case-by-case basis.

    I think that resolution of Argument B (that the technique causes the subject to be in fear of imminent death) makes the strongest case either for or against the technique being deemed “torture” as a matter of law. Accordingly, in my mind, waterboarding is torture based on the statutory definition whereby placing someone in fear of imminent death is the natural and unavoidable consequence of using the technique.

  6. on 29 Oct 2007 at 2:22 pm Lance

    Excellent response Michael. A lot of good points to ponder.

  7. on 30 Oct 2007 at 3:32 pm Keith_Indy

    For an in depth article on water boarding from a SERE instructor see here.

    I don’t believe I’ve ever gotten a decent explanation of what this particular caveat means?

    other than pain or suffering incidental to lawful sanctions

    If we legally sanction water boarding for use in interrogating certain high-value prisoners, as opposed to being an act merely used to punish or inflict suffering on the prisoner, then is it by our definition torture?

  8. on 30 Oct 2007 at 3:47 pm Lance

    I saw that post at small wars as well. I highly recommend it. I will be taking these and any other responses in a couple of days and give a counterargument. It looks as if I am going to have to play the “Devils Advocate” on this one.

  9. on 30 Oct 2007 at 3:48 pm MichaelW

    If we legally sanction water boarding for use in interrogating certain high-value prisoners, as opposed to being an act merely used to punish or inflict suffering on the prisoner, then is it by our definition torture?

    The technique could certainly be designated by Congress as a legally sanctioned method of interrogation. Accordingly, waterboarding would become legally defined non-torture.

    I’m doubtful of that ever happening, however.

  10. on 30 Oct 2007 at 6:44 pm MichaelW

    Here’s a counter-anecdote to Malcom Nance. Cajun Heugenot describes his encounter with waterboarding as a SERE trainee:

    My next encounter with the device was some time late, during one of my interrogations. During the interrogation I was slapped, beat against a wall and placed in stocks. In the stocks your neck and hands are below your waste, while your knees remain straight. This is painful and when I was taken from the stocks I collapsed and could not walk for some time. When I was able to stand on my own power, they replaced my hood and guided me away. I was stopped, the hood was removed and the device there in front of me. I was then asked if I knew what it was. I said I did. I was again asked to reveal things I that I was not allowed to reveal. I refused. At that point I was informed that if I did not cooperate I would be placed on “The Device.” My heart sank. I was truly scared.

    He goes on to recount exactly what happened to him in vivid detail. However, he ends up with this conclusion:

    The water-board is not fun; it is a very frightening experience. It was preformed on me by Americans who were on my side, and even though I knew that in my mind, at the moment it was happening I really believed I was going to die. I can understand that a murderous criminal like Khalid Sheikh Mohammed, might be convinced to talk using this method of interrogation.

    The water board is a very affective interrogation tool, but I do not believe that it qualifies as torture. The U.S. Military does some hard training. The training is often dangerous and uncomfortable, but the military does not use torture training its own people, but it does use the water-board.

    If we use water-boarding to train our sailors, soldiers and marines, then how can it be considered torture when used on terrorists?

    I don’t know if that necessarily changes the legal argument. In fact, Cajun Heugenot validates my argument as to why waterboarding is torture under the statute:

    Regarding B [”The waterboardee knows, or should know, that he will not be allowed to die from the procedure“] , I can’t see how this would be a sustainable argument since the waterboardee would have to not only trust his captors to not go over the line, he would also be required to maintain a rational and objective perspective in the midst of the procedure. Here Steve Harrigan’s experience is instructive since he described feeling like he was going to die. If a friendly news reporter feels that way, what chance is there that an enemy detainee would feel otherwise, much less that he should be expected to feel otherwise? I would say none.

    Nevertheless, there are apparently several SERE trainees who think that waterboarding should not be deemed “torture.” (See here, and here, for example).

    The moral question, therefore, may still be open, but the legal question is not IMHO.

  11. on 31 Oct 2007 at 2:16 pm Joshua Foust

    Blast! Lance asked me to post the same link to Nance. Regardless, Passport had a slightly diff. take.

    http://blog.foreignpolicy.com/node/6840

  12. on 31 Oct 2007 at 2:42 pm Lance

    Sorry Josh. I saw a different url and hadn’t read it yet. Thanks for the additional link though. Feel free to find ones you believe are relevant and add any commentary you can of your own.

  13. on 31 Oct 2007 at 3:00 pm Joshua Foust

    Actually, I think Glasnost expressed it quite well. The induced, and believable, sensation of drowning, repeated and at length, should sure qualify it as torture.

    There is a very weird line being skirted here, too. Is slapping someone torture? I’d say probably not, though it would be clearly inappropriate in a police setting. Is slapping them repeatedly over a length of time torture? That’s pushing it into “torture” territory. A single instance of waterboarding may not be torture, even if it is torturous. If it becomes a regular feature of interrogation, such that it generates a conditioned, psychological response, it again probably pushes into torture territory.

    Ignoring the arguments on efficacy, on which I think the Israelis’ unsuccessful experiment with using “harsh interrogation techniques” is key, there is the very real question of who does the “techniques.” That inexperienced, and possibly genuinely sadistic contractors have carried this out both in Abu Ghraib and at other black sites is deeply disturbing—it blurs the private/public line far too much. That none of them (in particular the CACI contractors at Abu Ghraib) were ever held legally accountable for their crimes while uniformed personnel were is, from a broad perspective, reason enough to forbid such practices (that is to say, if legal accountability for going over the line is so difficult and rare).

    Quite simply, even if we decide to radically revise “torture” so that Soviet techniques, which we have adopted despite once decrying them as torture, are not in fact torture, I still don’t think we can be trusted to wield such techniques properly and only in the appropriate context (for example: just how dire must circumstances be to warrant waterboarding? how specific? how verifiable? how much prior information must there be?).

  14. on 31 Oct 2007 at 3:17 pm Lance

    Well put Joshua.

    I think the length of time and repetition are key factors in any mode of treatment. If one goes back and reads Solzhenitsyn, or Armando Valladares, there are things done which are certainly not torture if done for a short while, but over time have to qualify as mind numbingly abusive, and certainly as bad as anything we might normally call torture. Similar complaints, though not nearly as well publicized, could be said of our treatment of German prisoners in WWII, especially late in the war and in its immediate aftermath, and in truly shocking fashion, in the Pacific theater.

  15. on 31 Oct 2007 at 4:29 pm Joshua Foust

    Which doesn’t make it alright then or now. You’re right — dripping water is nothing more than an annoyance on its own. Dripping water on a restrained man’s forehead will drive him insane. Context matters.

  16. on 31 Oct 2007 at 4:43 pm Lance

    Context matters.

    Exactly, which has been lacking in much of the discussion of torture, and regardless of ones views of the legitimacy of our policies.

    Which doesn’t make it alright then or now.

    I assure you, I certainly didn’t mean to imply otherwise.

  17. on 31 Oct 2007 at 6:41 pm jsarge

    A. It’s not “prolonged”

    If you are looking for answers isn’t it prolonged until those answers are recieved?

    B. The waterboardee knows, or should know, that he will not be allowed to die from the procedure.

    This procedure only works, as explained to me by a former British counterterrorism official, if the waterboardee believes he will be allowed to drown. That video does not include the interrorgators screaming at the suspect which would be part of any interrogation, asking him if he wants to die and to tell them what he wants to know.

    C. The suffering is not “severe” since it stops immediately upon cessation of the technique.

    You have convinced a prisoner you were willing to kill him for interrogation purposes. Doubt the suffering stops immediately.

    D. Neither the senses nor personality are “profoundly” disrupted (which I would take to mean that there is no permanent change in either).

    Maybe not the senses but I doubt that such a threat as explained above could fail to “profoundly” disrupt the personality.

    The above mentioned counterterrorism official said he was against torture in all instances, felt it was counterproductive as true interrogation should be based on developing a relationship with a suspect which is impossible with torture.

    I also don’t understand why the fact that we use this technique on our own soldiers is relevant. They are voluntarily subjected to this technique with the knowledge that they will not be killed (a knowledge interrogatees lack) and their interrogations likely have stricter limits than those of detainees. These differences aside, we morally/legally can torture our own soldiers as it is done with their consent

    I think it is in essence a moral question. Is the United States a country that is willing to categorize itself as a torturer?

  18. on 01 Nov 2007 at 4:09 am Lance

    Thanks for the response jsarge.

    Okay, conveniently Nance’s post has sparked some discussion around the blogosphere.

    Belmont Club

    Buck Naked

    The reaction

    Captains Quarters

    The Corner

    Some things to consider. Waterboarding is not a set term. It applies to a range of actions. Some who have been through SEER training deny that the method described by Nance is what they were subjected to. Whether that is true or not, it does highlight the fact that waterboarding can be handled in various ways. Might some ways of using waterboarding not be torture even if some are? In essence it goes to Josh’s point that context matters. In fact it seems to me a lot of things matter in deciding whether it is torture, and even if it is not, would it be acceptable?

    Which of course goes to other questions having to be faced, such as if it can be done in ways which we might consider acceptable, would we be better served by a bright line against the technique because of the potential for abuse?

  19. on 02 Nov 2007 at 3:28 am Steven Ashley

    This is stupid, all waterboarding does is make a individual think they are drowning when in really they aren’t. It plays on our instinctive urge to avoid downing, which induces uncontrollable fear. The subject will do practically anything to avoid the sensation, but in reality they are in no worse shape physically than a cold shower.

    Maybe the torture comes in when the bad guys figure out that they gave up their secrets, after the good guys got their head wet, and nothing more, repeat, nothing more. No broken bones, missing eyes, fingers or toes, nothing more.

    Tonight, people all over the globe are paying good money to have their wits frightened out of them, and because on rare occasions our Intelligence Agencies find the need to frighten someone in to telling them what they know, the Democrat majority wants to declare it illegal because it is inhuman torture, to quote 20/20’s John Stossel, “Give Me A Break”.

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