Critics Still Haven’t Read the ‘Torture’ Memos –

Critics Still Haven’t Read the ‘Torture’ Memos –

Ms. Roensing recently wrote an opinion piece for the Wall Street Journal. She starts her article with the following paragraphs:

“Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.

What did the Justice Department attorneys at George W. Bush’s Office of Legal Counsel (OLC) — John Yoo and Jay Bybee — do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).”

Is it right for attorneys to be prosecuted for providing an interpretation of the law? From no critic (or anyone else for that matter) have I read or heard anything that contradicts their interpretation. In other words, it appears that their interpretation of the law was sound. These attorneys acted like judges ideally should – they interpreted according to the law. If people do not like the laws, they should try to change them. Yet, how much have people (namely Congress) tried to change the laws regarding Enhanced Interrogation Techniques (EITs) and torture? As Ms. Roensing points out, “the Senate rejected a bill in 2006 to make waterboarding illegal.

Ms. Roensing also wrote about the laws about torture:

“The Gonzales memo analyzed “torture” under American and international law. It noted that our courts, under a civil statute, have interpreted “severe” physical or mental pain or suffering to require extreme acts: The person had to be shot, beaten or raped, threatened with death or removal of extremities, or denied medical care. One federal court distinguished between torture and acts that were “cruel, inhuman, or degrading treatment.” So have international courts. The European Court of Human Rights in the case of Ireland v. United Kingdom (1978) specifically found that wall standing (to produce muscle fatigue), hooding, and sleep and food deprivation were not torture.

Even waterboarding (which I am opposed to) is not illegal (as referenced above). One columnist for the Washington Post stated his belief (which mirrors many other liberals) about the legality of waterboarding: “waterboarding will almost certainly be deemed illegal if put under judicial scrutiny.” What this means right now is that waterboarding, again, is not illegal. As far as I’m aware, under no U.S. or international law – at present – is waterboarding officially considered torture. Some legal experts and politicians have expressed their opinions that waterboarding is torture but those are all unofficial opinions and have not been codified into law or statutes.

I do have to point out that the Wikipedia article on waterboarding states the following: “Waterboarding is a form of torture.” Well, I guess since it is on Wikipedia, it must be true! Further, the citation for that statement about waterboarding being torture is a Vanity Fair article [Update: This reference has been removed between when I wrote this article and now {May 25, 2009}. At least some of the introduction to the waterboarding article on Wikipedia has been edited a bit]. Now that’s a definitive legal source! The whole Wikipedia article (from my quick skim of it) is quite biased against waterboarding. It starts off with the statement that waterboarding is torture when that in fact has not been legally determined (which is the logical fallacy called begging the question). How is this begging the question? According to United States law (and all or most international law), waterboarding is neither torture nor is it illegal (Pres. Obama calling for the end of its use does not make it illegal – he is part of the executive branch and not the legislative branch). Thus, hinging an argument against waterboarding on the basis of it being torture is begging the question.

Do I think waterboarding should be outlawed? I think there are more arguments against its use than for its use. Does that mean I want it outlawed? I’m not sure. What is the cost of doing so? Is its use justified if it provides real results even once that save lives? Should we not have dropped the atomic bombs on Japan to end WWII? Doing so, according to the best estimates, saved the lives of millions of Japanese and hundreds of thousands or millions of Allied forces. Sometimes when lives are at stake we need to make hard decisions. I know some people say we should never have dropped those bombs but that is the minority opinion and it’s easy to criticize in hindsight without really understanding the circumstances of the time.

What I do not support is any sort of legal reprimand or trial of CIA personnel or of Bush administration Justice Department personnel or anyone else (including Nancy Pelosi) for the use of EITs. If you do not like the procedures, fine. Get laws passed outlawing them and go forward from there. Let’s stop all this bickering and finger-pointing.

Update: I came across a transcript of a speech Sen. Ted Kennedy gave during Michael Mukasey’s nomination approval meetings.

Here’s a key part: “Make no mistake about it: waterboarding is already illegal under United States law. It’s illegal under the Geneva Conventions, which prohibit outrages upon personal dignity, including cruel, humiliating and degrading treatment. It’s illegal under the Torture Act, which prohibits acts specifically intended to inflict severe physical or mental pain or suffering. It’s illegal under the Detainee Treatment Act…” (emphasis added).

The problem is that Sen. Kennedy is wrong. Waterboarding is not illegal under U.S. law. Whether or not the Geneva Conventions apply to these “enemy combatants” or “detainees” or whatever they are called (other than terrorists) is debatable. Waterboarding is neither illegal under the Torture Act nor the Detainee Treatment Act because it has not been officially declared as torture by any significant governmental entity. What is interesting is to do a Google search on the legality of waterboarding (not that a Google search finds definitive sources but it is interesting). You get everything from “waterboarding is illegal and has been for 40 years [other sites say 100 – which is it?]” to “waterboarding may not be illegal but it should be” to “waterboarding is torture” to “waterboarding is inhumane” and so forth. So, is it illegal?

My favorite is this chain: “Waterboarding = Drowning = Torture = Illegal = Immoral.” Waterboarding does not equal drowning. Waterboarding simulates drowning but that does not mean it is exactly the same as drowning (which the equal sign signifies). Waterboarding is immoral though. Of course, war is immoral too and war is sometimes justified (this brings in the whole discussion of moral dilemmas). Terrorism is immoral too. So, is it justified to do something that is immoral – namely waterboarding – but not physically or even psychologically harmful in the long term (if anyone can point me to research showing that waterboarding produces lasting physical or psychological harm, I’ll gladly revise my statement)  in order to try to prevent terrorist acts? Do the ends justify the means? Do we need to sometimes make the hard choices in order to save lives?

One thought on “Critics Still Haven’t Read the ‘Torture’ Memos –”

  1. It is interesting that the same people who are wringing their hands over military practices are supporting abortion. On the one hand it is supposedly reprehensible to torture someone but not reprehensible to end human life in a cruel and unusual way. What about some consistency in favor of all human’s rights, including the unborn.

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