Is Waterboarding Torture? Try it Yourself!

by Duncan Hollis

Wow! Like Marty Lederman, I really thought this story was from The Onion. But, it now appears that the Acting Head of OLC, Dan Levin, volunteered to undergo waterboarding in an effort to inform his legal opinion as to what qualifies as “torture.” On the one hand, I think this is another useful reminder that many who’ve worked for the government since 9/11 take the cries and controversy surrounding U.S. detention policies seriously. They make decisions that, while controversial, they believe are consistent with our legal system and the country’s best interests. It says something that Mr. Levin went to such lengths to inform his views (even putting aside the fact that how he experienced the technique would likely differ dramatically from those without assurances of the outcome). On the other hand, I take this story as further evidence of how far down the rabbit hole we’ve gone. I’ve a hard time reading these stories and still taking seriously the legal arguments that waterboarding is not prohibited as a matter of U.S. law (and, here, I’m just talking about legal arguments; there’s an entirely separate debate about waterboarding’s propriety from a moral or ethical standpoint that I think has more substance to it on both sides). I’m not a rational choice devotee, but even I am wondering when a cost-benefit calculus comes into the Administration’s continued obfuscation on whether waterboarding is torture. Does the United States really get that much more of a benefit from the continued availability of waterboarding as one of its aggressive interrogation techniques than the political costs stories such as this impose on the U.S. position vis-à-vis our allies, not to mention trying to retain a moral high ground in the war on terror (difficult as that may be post-Abu-Ghraib)? Indeed, does there remain that much of a benefit if it turns out, as alleged, that the Administration hasn’t waterboarded anyone in the last several years-—doesn’t that suggest the current fight is really more about avoiding legal liability for past acts than protecting national security going forward?

In any event, the story certainly makes suggestions like this letter to the editor look more serious. Indeed, if someone in OLC would do it, why shouldn’t Michael Mukasey clear up his own ambiguity on the waterboarding practice by trying it out for himself, before, or even once, he becomes Attorney-General. Certainly, those suggestions have a lot more force than they did before it became clear that this was a real option.

http://opiniojuris.org/2007/11/07/is-waterboarding-torture-try-it-yourself/

9 Responses

  1. Could this be a PR exercise? As you say, ‘how he experienced the technique would likely differ dramatically from those without assurances of the outcome’. I agree. Waterboarding is about instilling a fear of death in people subjected to it; this ‘works’ primarily through the body’s instinctive reaction to drowning sensations, but how could this ‘work as well’ if the mind knows perfectly well that there is no actual danger?

    I sincerely hope, nonetheless, that the unannounced waterboarding of OLC officials is out of the question…

    Also, this form of experiment seems to me to be utterly beside the point. The definition of torture, and of inhuman and degrading treatment, necessarily takes into account the vulnerability of the victim (Menesheva v. Russia, para. 61). What Mr Levin thinks of waterboarding is therefore immaterial if the people subjected to the actual practice are in any way more vulnerable than him. True, Khalid Sheikh Mohamed probably isn’t, but people wrongly suspected of being terrorists might well be. Of course, the whole situation comes into it again: how resilient are you if you have already been detained, and possibly ground down in a variety of ways, for some time?

    Incidentally, I find it more than a little worrying that people like Mr Levin must experience the practice itself to decide upon its legality. Can they not muster the empathy required to recognize waterboarding as unacceptable? Also, what else might there be that decision-makers in similar situations might wish to have somehow imitated for them?

    But if that’s what it takes, why stop at the Attorney-General? Why leave his superior in the dark? Now who is that again?


  2. Can they not muster the empathy required to recognize waterboarding as unacceptable?

    Tobias, no empathy is mustered because the human is considered an enemy. And because the human is an enemy we conclude they can not be human. And because they are not human, we can treat them as subhumans because we fear. Fear is too much for us. It is a terribly sad place to which we have gotten ourselves here in the USA.

    Best,

    Ben

  3. The Democrats seem to have forgotten they possess the legislative power to specifically outlaw water-boarding, rendering this whole “is it torture” argument wonderfully moot.

    It seems they lack the will.

  4. This is akin to law enforcement. To be certified in OC Pepper Spray an officer has to take a “hit” to the face to know what it feels like so he/she will think twice before using it. Anyone who is a pilot — including some in Congress — have been waterboarded as part of training — Special Ops too. John McCain — the only real expert on torture in Congress doesn’t think it’s torture. The enemy is not “the human” — that’s morally obtuse at best. The enemy is a human and as such is susceptible to pressure to give needed information. They’re not filling out loan apps, they’re holding potentially useful info that could save more lives. Surely you can wrap your post-Enlightenment utilitarian mind around that.

  5. Troy, where does Sen. McCain say that? He has said that waterboarding is a violation of the Geneva Convention.

  6. Troy, “In fact, waterboarding is just the type of torture then Lt. Commander John McCain had to endure at the hands of the North Vietnamese”.

    To be honest, I don’t know what all the fuss about this debate on waterboarding is. To me it is very simple: If I did it to my pet, would the ASPCA throw me in jail???Of course they would, because in this country it is illegal to treat your pets that way!!!

  7. Tobias Thienel, your citation does not say that the definition of torture “necessarily takes into account” the victim’s state of vulnerability.

    The court observes that the victim was “particularly vulnerable,” but only as a function of — and in relation to — her age and sex.

    “To assess the severity of the “pain or suffering” inflicted on the applicant, the Court has regard to all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, as in some cases, the sex, age and state of health of the victim. The Court observes that at the material time the applicant was only 19 years old and, being a female confronted with several male policemen, she was particularly vulnerable.”

    The ECHR does not say that “vulnerability” is a self-standing definitional prong of what constitutes “severe mental pain and suffering.” And as the omitted citation to Bati makes clear, purpose and duration – along with sex, age, and state of health – are the relevant elements to adduce. Not “vulnerability.” Let’s not invent new elements out of whole cloth, eh?

  8. To be honest, I don’t know what all the fuss about this debate on waterboarding is. To me it is very simple: If I did it to my pet, would the ASPCA throw me in jail???Of course they would, because in this country it is illegal to treat your pets that way!!!

    It’d be illegal to perform on a human as well, simple assault at the very least. I don’t think that’s a good qualifier for looking at the behavior.

  9. 18 USC 2340,

    what, if not vulnerability, do ‘sex, age and state of health of the victim’ go to? Purpose and duration?

    And why does the Court apply the test you quote by adverting to the applicant’s vulnerability?

    In any event, if you are assessing the severity of pain and suffering – not, you will note, of the treatment – surely it is self-evident to have regard to the personal condition of the victim? Remember, the Court is not talking about the level of pain and suffering that the victim could reasonably have felt, or any such utter nonsense, but about the level of pain of suffering that was in fact inflicted.

    Let’s try and think what the Court may have meant, shall we? ECtHR judgments in particular do not lend themselves to such a strict, literalist reading. I doubt if any do.

    Mind you, we aren’t talking about ‘elements of the definition’ anyway. The definition is ‘treatment occasioning severe pain and suffering’. That naturally directs one’s mind at all the circumstances of the case (see above). The rest is a matter of judgment.

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