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Waterboarding and Torture

Policymakers Debate Waterboarding as a Form of Torture

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In April 2009, a memo released by the Obama administration revealed that terror suspect Khalid Sheikh Mohammed was waterboarded 183 times in March 2003. This suggests that use of waterboarding in the aftermath of the 9/11 attacks was most likely not rare.

What is Waterboarding?

Waterboarding is a relatively mild form of water torture in which the victim is strapped to a board facing up, a cloth is held over the victim's nose and mouth, and water is continuously poured over the victim's face. The victim will gag, be unable to breathe, and feel as if he or she is drowning. A video demonstration of waterboarding can be found here.

Waterboarding and Torture

There is a debate among policymakers over whether waterboarding is really torture. This seems like a profoundly stupid question; if waterboarding weren't torture, why would interrogators bother to use it at all?

But policymakers aren't having an ethical, philosophical debate. What they're really asking is whether waterboarding falls under the U.S. legal code's definition of torture--in other words, whether or not it's illegal. There is also significant debate over the degree to which military officials are regulated by less narrowly-written international laws prohibiting the use of torture.

Torture Under U.S. Law

Under 18 USC Section 2340A, torture is defined as "[an] act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." But there are two complicating factors:
  1. Policymakers can debate all day over whether a specific form of torture causes "severe" physical or mental pain, and
  2. The law applies only to U.S. nationals and to torture conducted in the United States.
There are also numerous state laws prohibiting torture within their respective jurisdictions--and one federal law that holds us to an unspecified degree of compliance with international law.

Torture and International Law

The War Crimes Act of 1966 (18 USC Section 2441) prohibits any "grave breach" of the Geneva Conventions.

The Third Geneva Convention states that prisoners of war must always be "humanely treated" (Article 13) and prohibits "physical and mental torture, [and] any other form of coercion" (Article 18).

The Fourth Geneva Convention states that civilian prisoners must be protected from "cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment" (Article 3).

The Bush administration argued that enemy combatants are neither prisoners of war nor civilians, but rather fall into an intermediate category of unlawful combatants. In January 2009, the Obama administration rejected this distinction.

Addressing Ambiguity

Each of the three branches of government can address the legality of waterboarding in a different way:
  • The Obama administration officially banned waterboarding in January 2009--but this represents a temporary solution, since the leadership of the executive branch changes.
  • Congress can revise the relevant statutes to specifically classify waterboarding as a form of torture, given either a two-thirds legislative majority or a presidential signature.
  • The Supreme Court can interpret existing anti-torture laws in such a manner as to include waterboarding. The Eighth Amendment, which applies only to U.S. citizens and residents, is probably not applicable.
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