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Detainee Treatment Act of 2005:
SEC. 1002. (a) In General- No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

Of course, in the Army Field Manual, waterboarding is specifically banned.

And if you don’t think it’s banned under U.S. law, then perhaps you would agree that these people should be brought up in front of an international war crimes tribunal?

Chris, the statute I cited did not exist at the time. Nor did UNCAT. People were convicted in 1947 of miscegenation as well–that proves nothing about the state of the law TODAY. And it is the law, not some ranting wingnut’s rhetorical assertions, that counts. WHICH HAS BEEN MY CLEARLY STATED POINT FROM THE BEGINNING.

Yukio Asano was convicted not of torture under UNCAT or USC, but of mistreatment of POWs under the Geneva Conventions. Do you understand the obvious difference? Had Asano offered a prisoner a pack of cigarettes to sell out his unit, he would also have been guilty of a GC violation. Had he deprived a prisoner of his Red Cross chewing gum as a punishment, he would have been equally guilty of mistreatment of a POW. (In point of fact, he was also convicted of “unlawfully taking and converting to his own use Red Cross packages and supplies intended for POWs.”)

Now, I have NOT at any point advocated waterboarding or condoned the use of it, I have simply said that it is arguably not illegal under US Code or UNCAT. Which is completely true. Depending on the reading of the codes, waterboarding can arguably fall within the non-banned parctices, because the definitions are somewhat subjective. So you can cram that implication that I am somehow advocating or supporting the specific practice of waterboarding up where the sun don’t shine for you, if’n there’s any room left.

I have also said quite clearly and at length that if torture is not well and specifically defined, then rhetorically posturing against it is nothin’ but fluff. Please, if you wish waterboarding to be clearly defined IN LAW as torture, have at! No argument from me–as a professional pol I helped lobby Congress for the McCain amendment. I think the definitions in both USC and UNCAT could be greatly improved without overly restricting interrogators, even still leaving them with many available techniques that many would find ugly but that aren’t remotely “torture.” UNCAT is full of holes, most of them meant to enable nations to continue using their “traditional” methods under color of law–their own laws, which automatically exempt them entirely from UNCAT for those procedures. Try reading the damn thing, will you?

I get sick of people characterizing anything and everything they don’t like as “torture,” and using sweeping generalizations to condemn everything in sight. Between GC POW-status restrictions (which precludes damn near ANY interrogation, including a whole bunch of things your local PD can do quite legally that SCOTUS would not even blink at once, much less twice) and UNCAT (which pretty much only bans Really Seriously Nasty Things–UNLESS it’s enshrined in your local statutes as permissible) there is a HUGE gray area of allowable techniques. If you want them classified as tirture you have to get real specific about them–because by USC and UNCAT, they are not torture, no matter how much rhetorical posturing people do.

For Tully, From the Washington Post:

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

Interestingly, it appears that the United States has not ratified the Convention. I’m very disappointed.

Don’t be, you’ve been checking a bad or dated source. HRW is simply wrong there. Ratified by Congress 21 Oct 1994, with the declarative proviso that “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” IOW, a treaty’sapplication to the US cannot exceed Congressional statutory authority or infringe the Constitution as interpreted by SCOTUS, a point I already made.

I would think anyone who thinks they are at all equivalent have some serious issues with rationality.  And if my tone is abusive on those who would bandy about the products of the Enlightenment as something circumstantially expendable or not worth "prioritizing", then "Fie" I say.  Fie, and a curse on both your houses.

I think we should have waterboarded the Tobacco Scientists and the board of directors of every tobacco company back in the ’50′s and ’60′s,  frankly.  We could have saved millions of American lives.  Right now I can think of many corporations whose executives should be waterboarded, if saving thousands of American lives is truly paramount.

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Having personally experienced near-drowning, I hereby provide testimony that having water poured into your lungs constitutes "severe pain or suffering".  I expect that being physically restrained in a waterboarding rig during the process would not alleviate the suffering.

http://www.hrweb.org/legal/cat.html

(Interestingly, it appears that the United States has not ratified the Convention.  I’m very disappointed.  It feeds your argument about the legality, but also feeds my argument about how your legal scope is too narrow to address the full range of implications for the torture issue.)

Information that will probably harm US strategy in the end, as it is, well, mostly false. 

Maybe a definition of torture that works is that the only defense is to ask for a definition. But I dunno, this is actually a good time to make sure nothing of the sort happens again.

And you still haven’t defined “torture,” without which it’s still all dueling rhetorics and conjugations and appeals to approval. EX:

“Our interrogation methods are reasonable and lawful steps taken to prevent the loss of innocent lives. Yours are harsh techniques that we disapprove of in principle and would only use in extremis. But those guys…their methods are torture!”

Do you see what I’m getting at here? I do agree I’ve wandered far from the “lesser-of-two-evils” discussion, but you can’t tell which is lesser without knowing what both evils really are, no?

I am going to save it to print it and to give it to all my friends and relatives to read.
Jason Steck and James Spark, you made my day.
I know that I will go to bed with the better thoughts about the future of the USA.

Seriously, Tully, I respect your professional expertise, it would be nice if you would respect mine.

Define “torture.” Because there are actual definitions available, ones that seem to be ignored in favor of one’s own assignation of any interrogation technique one doesn’t like as “torture.”

Americans will be treated in other countries by the standards of those countries, as they have always been. The idea that they will be given different treatment in response to our own treatment of terrorists is fallacious, one assuming a strict standard of moral equivalance among governments. But the governments will either adhere to their own standards, or none at all, not to ours.

IF they adhere to treaty, then the legal definitions become paramount and overarching, of prime importance. If they do not adhere to treaty, the legal definitions are meaningless–they will do as they will. And many already do.

I recently purchased an excellent new casebook on international law that I have at the office, so I’d be happy to pump out a couple of references when I get the chance. But my basic point is this: Your scope is too narrow for the question at hand.

The part of him that is not fiction represents everything that the the Magna Carta and the establishment of rule of law, the Enlightenment, the Declaration of Independence, the Bill of Rights and the Constitution of the United States of America, every convention and treaty on torture and the treatment of POW’s, every attempt at some form of jurisprudence in international relations struggles mightily against:  Arbitary and summary judgment or treatment of the powerless by the powerful.

This is not remotely the tired old canard of "terrorists = Nazi’s".  Terrorists do not and will not ever represent a similar existential threat.  The Nazi’s were far from powerless, particularly in 1937.  We will not ever have a similar 1937 moment in the so-called GWOT, but we are most definitely having 1937 moments in the GWOL(liberty), GWOR(rationality) and most tragically the GWOE(Enlightenment).

You can have your Machiavellian, Faustian bargain-basement government Mr. Schulman, where might makes right and the ends justify the means.  I don’t claim to "stand with the angels" and I definitely do not "have an abiding faith in human nature and a better world":  It’s why I put my faith in due process and the rule of law.  But I will not join you in your narrow and bloody-minded return to security at the expense of liberty, to barbarism, and to tyranny.  Any self-respecting American patriot would feel the same.

You may be right about what the text of the U.S. code is, but the question at hand involves more than just American citizens within the territorial borders of the United States. It involves citizens of other countries AND it involves how Americans will be treated on the territory of other countries.

So, with all due respect, I think your textual legal focus is too narrow of a scope for this conversation. I grant that field personnel need specific guidelines, but what we are arguing about here is whether the narrowest reading of the U.S. Code should constitute the EXCLUSIVE basis for those guidelines. We frequently use additional factors in determining what certain people should or should not do. Doctors, for example, are bound both by the U.S. Code and a code of professional ethics and oftentimes by additional codes of conduct from their sponsoring organizations. The U.S. Code may be the beginning of their set of guidelines, but it is not the end. The same principle applies to CIA field agents. The text of the U.S. Code regarding torture may be the beginning of their decision about whether to undertake waterboarding, but I don’t think it is the end.

So, yes, my argument IS “political, not legal”. My point, however, is that the issue of interpreting what is “torture” transcends the merely legal and mandates extensive engagement with the ethical, the moral, the political, and even the social definition of who we are as a people.

And I don’t think waterboarding is permissible under that broader scope of analysis, at least not without an extensive additional engagement with a virtue ethics approach.

I don’t think I’ve said anything to the effect that the fact that an imperative is being violated should be ignored or obfuscated (If I have, please cite).  The Bush administration should be damned for denying what is in plain view.  The all-too-transparent cover-up is more damaging than what is being covered up.

But, then, we’ve seen this before.