Waterboarding: A Tortured Illegality (Part 3)

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Let’s return to our series on waterboarding. You should read parts 1 and 2 before reading this post.  

Is Waterboarding Torture? Is Waterboarding Legal?

In an interview with Fox News’s Sean Hannity Donald Trump said, “I mean, torture is real torture, OK? Waterboarding is — I’m sure it’s not pleasant, but waterboarding was just short of torture.”

Is Donald Trump right?

A legal argument was made in favor of waterboarding in a memo signed, and written by Jay Bybee, former Assistant Attorney General, to then- White House Counsel to the President Alberto Gonzales in 2002. Most believe the memo was written by John Yoo, former Deputy Assistant Attorney General in the Office of Legal Counsel (OLC). The memo was an attempt to clarify the standards of conduct under the UN Convention Against Torture.

According to this letter, a pain must rise to a level that would “ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions” in order to qualify as torture.

Is it Torture or Not?

An open letter was sent to former Attorney General Alberto Gonzales urging him to condemn the use of interrogation techniques like waterboarding. This letter was signed by 100 professors of law. A relevant portion of the letter says:

Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.

Waterboarding involves a number of forbidden activities. Let’s parse out the legally applicable areas here:

1. Severe Physical Suffering (This element is in violation of: Article 1 of the United Nations Convention against Torture, The Detainee Treatment Act of 2005, and 18 U.S. Code § 2340)
2. Severe Mental Pain (This element is in violation of: Article 1 of the United Nations Convention against Torture, The Detainee Treatment Act of 2005, 18 U.S. Code § 2340)

These are not the only areas of illegality. The letter goes on to say:

Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

If these legal scholars are right, waterboarding is caught in a web of illegalities.

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