Waterboarding: A Tortured Illegality (Part 4)

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Waterboarding and the Military

A point that often gets overlooked in torture debates is how members of the military are instructed on these matters. Military members are forbidden from engaging in torture and waterboarding because it is explicitly regarded as form of torture in military literature.

Lieutenant Colonel Shane R. Reeves is a member of the Army and an Associate Professor and the Deputy Head of the Department of Law at the United States Military Academy, West Point, New York. Lt. Col. Reeves is quite instructive on this matter and I will quote him extensively:

…[T]he UCMJ articles make clear that obedience is only required for lawful orders. Patently or manifestly illegal orders impose no duty of obedience on the service member and instead mandate disobedience. In fact, a service member who obeys an illegal order is individually culpable for the crime and cannot later assert “following orders” as a defense. This would seem to put service members in the difficult position of being both expected to follow orders and also accountable if an order happens to be criminal. However, in practice, manifestly illegal orders are not difficult to discern. A manifestly illegal order is, as the Israeli Supreme Court stated in the prosecution of Adolf Eichmann, unlawful not “only to the eyes of legal experts, but a flagrant and manifest breach of the law,” that appears “on the face of the order itself.” As a practical matter, service members are expected to clarify any questionable orders and, if a superior continues to demand obviously illegal action, report the circumstances to higher authorities.

Service members are, therefore, both released from their duty to obey a manifestly illegal order and also expected to refuse to participate in patently criminal conduct. Examples of manifestly illegal orders would include an order to murder civilians, to willfully cause great suffering or serious bodily injury to a prisoner of war, or to conduct medical experimentation on a protected person, to name a few. And without question this list includes any order to commit torture. The Law of Armed Conflict unequivocally forbids torture without exception and makes its use a grave breach under both conventional and customary international law. Further, under international human rights law the commission of torture is patently unlawful in any circumstance. Department of Defense Directive 2311.01E invalidates any arguments that there are U.S. military operations not regulated by international law, which therefore could theoretically allow for torture. That directive, which created the Department of Defense Law of War Program, expressly states “members of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations” making the prohibition on torture absolute.

Indisputably, a service member is required to disobey an order to commit torture, because such an order is manifestly illegal. But what about those who claim, based on a continued reliance on flawed justifications, that waterboarding and techniques are not torture? Fortunately, even these absurd and disingenuous end-arounds on the prohibition on torture are addressed and invalidated. The manual regulating interrogation for the armed forces, Field Manual (FM) 2-22.3, expressly prohibits waterboarding, conducting mock executions, inducing hypothermia or heat injury, as well as many other actions. The McCain-Feinstein Amendment to the 2016 National Defense Authorization Act enshrines in congressional legislation the requirement for military members to only use the interrogation techniques found in the manual making waterboarding and other similar techniques obviously illegal. (emphasis mine)

Here is what Army Field Manual (FM) 2-22.3 says on page 5-20-5-21:

5-74. All captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005 and DOD Directive 2310.1E, “Department of Defense Detainee Program,” and no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in US law. All intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted in accordance with applicable law and policy. Applicable law and policy include US law; the law of war; relevant international law; relevant directives including DOD Directive 3115.09, “DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning”; DOD Directive 2310.1E, “The Department of Defense Detainee Program”; DOD instructions; and military execute orders including FRAGOs. Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the HUMINT collector wants to hear. Use of torture can also have many possible negative consequences at national and international levels.

Cruel, Inhuman or Degrading Treatment Prohibited
All prisoners and detainees, regardless of status, will be treated humanely. Cruel, inhuman and degrading treatment is prohibited. The Detainee Treatment Act of 2005 defines “cruel, inhuman or degrading treatment” as the cruel unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This definition refers to an extensive body of law developed by the courts of the United States to determine when, under various circumstances, treatment of individuals would be inconsistent with American constitutional standards related to concepts of dignity, civilization, humanity, decency and fundamental fairness. All DOD procedures for treatment of prisoners and detainees have been reviewed and are consistent with these standards, as well as our obligations under international law as interpreted by the United States.1 Questions about applications not resolved in the field by reference to DOD publications, must be forwarded to higher headquarters for legal review and specific approval by the appropriate authority before application. The following actions will not be approved and cannot be condoned in any circumstances: forcing an individual to perform or simulate sexual acts or to pose in a sexual manner; exposing an individual to outrageously lewd and sexually provocative behavior; intentionally damaging or destroying an individual’s religious articles.
1 Nothing in this enclosure should be understood to affect the U.S. obligations under the law of war.

5-75. If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to—
• Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner.
• Placing hoods or sacks over the head of a detainee; using duct tape over the eyes.
• Applying beatings, electric shock, burns, or other forms of physical pain.
• “Waterboarding.”
• Using military working dogs.
• Inducing hypothermia or heat injury.
• Conducting mock executions.
• Depriving the detainee of necessary food, water, or medical care

Lt. Col. Reeves argues in no uncertain terms that waterboarding is a form of torture and that they are both illegal. In fact, military members are expected to disobey an order to torture or waterboard anyone.


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