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Waterboarding International Law

Does everything unpleasant qualify as torture now?

By Petrarch  |  March 10, 2016

If David Letterman were still helming the Late Show, he'd doubtless have a "Top Ten Offensive Things Donald Trump Said" just about every week.  It would be challenging for him to place them in rank order, though - there's just so much to choose from!

Of course, most of the "offensive" things Mr. Trump says are red meat to conservatives who are totally sick of political correctness.  Discussing illegal Mexican rapists and murderers is nothing less than the truth.  So is pointing out that our manufacturing jobs have gone to China thanks to currency manipulation and stupid American negotiators.  If the truth is offensive, it's not the fault of the truth-teller.

For all that many of his positions resonate with a lot of voters, there are a couple of Trumpisms that give people pause on both sides of the aisle.  His position on waterboarding is pretty dramatic, for example.

Whereas for the past decade every public opinionmaker has condemned waterboarding as torture and a war crime, The Donald proclaims not only that he'll use it on terrorists, but that he'll do "worse things" than that.  This is sufficiently controversial that former CIA director Gen. Michael Hayden said that the army would disobey Mr. Trump if he gave them that sort of order.  (We note that he didn't say the CIA would shy away from Trumpian force, and we doubt that it would.)

None of us want to see American soldiers behaving like the SS or the Spanish Inquisition.  As Gen. Hayden pointed out, our soldiers are required to disobey an unlawful order, and that's the way we want it - though our spooks are in a different category.

Left unsaid, though, is an important distinction: why, exactly, is waterboarding supposedly illegal?  Where do those laws come from, anyway?

Moral Judgment

First, let's review exactly what waterboarding is:

Waterboarding is a form of water torture in which water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the individual to experience the sensation of drowning...

In the most common method of waterboarding, the captive's face is covered with cloth or some other thin material, and the subject is immobilized on their back at an incline of 10 to 20 degrees. Torturers pour water onto the face over the breathing passages, causing an almost immediate gag reflex and creating a drowning sensation for the captive.

So there you are, right there in the definition: waterboarding is torture!

Well... that's Wikipedia, but it does seem to reflect prevailing international opinion.  Waterboarding appears to fit the Wikipedia definition of "torture":

Torture is the act of deliberately inflicting physical or psychological pain on an organism in order to fulfil some desire of the torturer or compel some action from the victim.

It's pretty easy to imagine that simulated drowning would at the very least cause psychological pain, if not physical.

There's a problem here though: Is this definition really reasonable?  We'd all agree that an Indian burn qualifies as "pain," but when your grade-school buddy administered one, was he standing in the shoes of Torquemada?  Of course not.  And psychological "pain" can famously be defined as darn near anything.

So obviously, simply taking this definition of torture at face value would lead us to fatally flawed and illogical conclusions.  Yet we all agree that there are certain acts which ought to be beyond the pale, and it would be really helpful if we could articulate a rational way to distinguish them.

Let's try a different approach: what sorts of things can we agree definitely are torture?

For those who remember the misbegotten 2008 campaign, one of the more memorable moments was John McCain accepting the nomination at the convention.  As presidential nominees traditionally do, he moved to raise his arms over his head in celebration.

Alas, he can't actually do that.  The tortures inflicted by the Vietnamese fifty years ago have left him incapable of raising his arms above his shoulders.  He also walks with a permanent limp.

Obviously, injuries inflicted intentionally which cause permanent damage a half-century later are torture.  They are immoral, unlawful, and un-American.

We have now identified one point of distinction between things which are torture and things which are not - a distinction that nobody bothered to put in the definition.  That is - how long does the pain last?

An Indian burn's pain stops as soon as the act ceases: not torture.  John McCain's arms were permanently damaged - definitely torture.

If you stop and think through all the scenes of torture that you've seen in the movie, odds are that nearly all of them would cause severe and lasting injuries.  You aren't going to ever be playing the piano again after a bout with thumbscrews, and a stint in the rack fits you out for a wheelchair.

We do often see movie POWs getting beaten up until they're a bloody pulp.  Most of the time, though, after a few months of rehab, they're more or less recovered - and most of the time that's true for beatings on the street, back alleys, or elsewhere.  Sure enough - beating up POWs isn't considered a war crime worthy of death.  So even with something we all agree causes harm, and isn't nice, international law in practice shows a distinction.

Can waterboarding kill you?  Sure it can, but that's murder, and it ought to be against the law to do that even to terrorist prisoners.  Can it cause permanent damage?  Probably, but when incompetently done, so can a great many standard techniques used in high-stress situations - and, likewise, we ought to hold the incompetent accountable for the damage they cause.

But we've definitively established that there is no logical, consistent principle by which waterboarding must always be torture.  It can be torture, but need not be.

Thus, to simply condemn Donald Trump as a would-be torturer for his generic endorsement of waterboarding, and even of unspecified "worse things," is tendentious nonsense.  Issuing nonsense is standard procedure for the Left, of course, but they still seem to manage to confuse people from time to time.

Justice Has Its Day

What the media wants us to forget is that Donald Trump has never expressed any intention of using unusually harsh techniques on ordinary wrongdoers caught in the ordinary way.  Police departments aren't going to start waterboarding criminal suspects - no, not even illegal immigrant criminal suspects.

It's different on the battlefield.  Whereas our local cops are taught that, if they must shoot a suspect, it's preferable not to actually kill them, our soldiers waste time with no such niceties.  Dead thoroughly and quickly, that's the motto.

Terrorists of the sort imprisoned in Guantanamo Bay don't even have the status of enemy soldiers, who wear uniforms and obey their lawful command hierarchy.  Terrorists blend into the sea of presumably innocent fellow Muslims, with no way to distinguish them until they detonate.

The whole point of requiring lawful soldiers to wear uniforms is so their enemies can know who to shoot at and hopefully aim at fewer innocent civilians.  By refusing this commonsense standard, terrorists put themselves beyond even the laws of war.

They're still technically human beings, which is why it still would be wrong to do them permanent harm via torture.  But making them uncomfortable - even very uncomfortable, but temporarily only - is perfectly appropriate if we think it'll save lives.

Yet our media left, and international lawyers, are more concerned with the temporary discomfort of a terrorist psychopath than the permanent disfigurement of innumerable innocent civilians maimed without warning?

Somebody's moral compass is badly off in this area - and it isn't Donald Trump's.