We Tortured and We'd Do It Again

Dan Froomkin has an excellent article over at the Washington Post discussing the Bush administration's recent confession that, not only had they engaged in practices that most of the planet considers torture, but that they would engage in such practices again.

After years of dodging and dissembling, the Bush administration today boldly embraced an interrogation tactic that's been an iconic and almost universally condemned form of torture since the Spanish Inquisition.

President Bush would authorize waterboarding future terrorism suspects if certain criteria are met, White House spokesman Tony Fratto said this morning, one day after the director of the CIA for the first time publicly acknowledged his agency's use of the tactic, which generally involves strapping a prisoner to a board, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning.

I disagree with the use of the phrase "to create the sensation of drowning", which has become quite common when people describe waterboarding, as it implies that drowning is in some way being simulated. Waterboarding is not simulation. The persons lungs are being filled with water. They ARE drowning. The interrogators simply stop the process before death occurs.

"Human Rights Watch, which has been calling on the government to outlaw waterboarding as a form of illegal torture, called Hayden's testimony 'an explicit admission of criminal activity.'

"Joanne Mariner, the group's counterterrorism director, said Hayden's testimony 'gives the lie' to the administration's claims that the CIA has not used torture. 'Waterboarding is torture, and torture is a crime,' she said.

There has been much discussion on the right over whether or not waterboarding constitutes torture, much of which is based on a misperception of what waterboarding is. For instance Giuliani thinks it "depends on how it's done" as if there are somehow numerous ways to drown someone. There aren't. There's only one way to do it. You fill someone's lungs with liquid.

As Malcolm Nance points out here:

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject.

Mock executions have long been acknowledged as a form or torture and, as the purpose of waterbording is to make the subject feel that they are about to drown, then it is almost impossible to deny that waterboarding falls into this category.

Jack Balkin explains how Muckasey's tortured logic operates and how it is dependent on "self-serving OLC opinions":

"Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

"This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. . . .

And therein lies the rub. The logic that Mukasey is employing turns anti-torture legislation on it's head. Indeed, by his logic, the more painful a technique is, the less likely a subject is able to endure it for any length of time and, consequently, the less likely such a technique is to be considered torture.

Now that's simply a - pardon the pun - tortured logic.

Click title for full article.

Tags: Mukasey, CIA, torture, waterboarding, Hayden