Yes, Virginia, Waterboarding Does Violate International Law

Yes, Virginia, Waterboarding Does Violate International Law

From TPM Muckraker:

[Y]ou may have despaired of ever seeing a clear, unequivocal exchange on the topic with a government official. Like this one from today’s hearing before the Senate Armed Services Committee, with Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency:

Sen. Carl Levin (D-MI) asked, “General, do you believe that waterboarding is consistent with Common Article 3 of the Geneva Conventions?”

After pausing a moment to think, Maples replied, “No, sir, I don’t.”

“Do you think it’s humane?” Levin asked.

“No, sir, I think it would go beyond that bound.”

Now was that so difficult?

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P.J. Blount

I love the title of this post.

Marty Lederman
Marty Lederman

Actually, that — violating international law — is the least of it. Maples’s testimony is that the CIA’s waterboarding *breached our treaty obligation* (namely, that we not engage in “cruel treatment”), and that therefore DOJ and the CIA (and possibly the White House) authorized the commission of conduct that was, at the time, a violation of the War Crimes Act. (The defense would be that, in 2003, the Administration did not know that CA3 applied to these detainees, and thus it was an unknowing violation of the WCA.)


The statement “thus it was an unknowing violation of the WCA,” is inconsistent with the opinion, written by Yoo in 2002, that observed that several individuals might be at risk for prosecution under the WCA. Yoo found a solution by refuting the GC. Since the WCA took violations of Geneva as a war crime he opined that in the absence of the GC one could not violate them. See Elizabeth Holtzman for more details.

18 USC 2340
18 USC 2340

Bah. B.S. Whether a practice is torture or not is highly fact-dependant.

Declaring simpliciter that an action absolutely constitutes torture is facile, massages one’s sense of self-righteousness and sanctimony, and nicely evades the hard questions.

One slap isn’t torture. A hundred slaps causing “severe physical or mental pain” is torture.

A warm room may not be torture, a searing hot room causing “severe physical or mental pain” is torture.

At some point mere discomfort crosses into pain and pain into severe pain. It could easily be the case that waterboarding done in controlled conditions without the risk of imminent death – and without crossing the threshold into severe pain – falls short of torture.

To deny the existence of such a spectrum is silly.

Accordingly, such a practice as applied could conceivably skirt the borderline – something you absolutists are at pains (lol!) to deny! Surely the nuances aren’t too subtle for the enfevered minds of the law professors . . .


Nonsense on stilts.

18 USC 2340
18 USC 2340

Is that a counterargument?

You failed.