Sunday, November 04, 2007

Waterboarding Used to be a Crime

While on the subject of waterboarding, an interesting piece from the Post by Evan Wallach about prosecutions of e.g. Japanese soldiers for waterboarding U.S. prisoners in WWII.


Blogger Tom Van Dyke said...

Wallace's is a facile argument, but context is necessary.

Japan was a signatory to the Geneva Conventions; therefore, anything more than name, rank and serial number was a war crime. A slam dunk, the waterboarding being only tangential to the actual issue. [Neither is the "ticking bomb" scenario applicable in war between signatories.]

Al-Qaeda is not a signatory, and therefore the administration's view was that their un-uniformed combatants weren't entitled to Geneva protection.

However, in 2006, the Supreme Court ruled in Hamdan that they were, under Common Article 3. In accordance, changes were made.

Now, one might maintain that the SC is the arbiter of all legal and moral truth, but the decision was 5-4. We should recall Bush v. Gore [2000], which was also decided 5-4, before we assert that the Supreme Court cannot, by definition, be wrong about things.

8:58 PM  
Blogger Winston Smith said... did we get to "the Supreme Court cannot, by definition, be wrong about things"? Fallacy name: straw man.

There is a legal point and a moral point here. Whether or not the Geneva Conventions bind us legally is a legal question. The court has ruled on it, and you've given no reason to think they were wrong. (We might also note that in Bush v. Gore the decision is clearly wrong, the central arguments being downright laughable...but that's been done to death...and not central to the point at hand.)

So unless you're going to argue for legal skepticism (no 5-4 decision can be trusted since the 5-4 decision in Bush v. Gore was crap), I don't really see where you're going with this.

So, the best legal opinion available to us says that the GCs apply.

And all this, of course, is just a sideshow. The real arguments are the moral ones.

It's important that the administration doesn't seem to recognize the idea of a *human* right. Non-American-citizens being denied, e.g. *habeus corpus* on a kind of the "they didn't sign" argument.

You seem to be enthusiastically pro-torture, Tom. But none of this is washing...

9:27 PM  
Blogger Tom Van Dyke said...

Just providing context, that Japan and Bush are not as analogous as they appear on the surface.

Also, in fairness, I cited Hamdan.

Geez, man, always with the "straw men" and the questioning of other people's humanity.

10:00 PM  
Blogger Jim Bales said...

The Post article states: "As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas."

I cannot imagine that the Filipino guerilla groups were signatories to any treaty concerning the treatment of prisoners, yet American servicemen were court-martialed for waterboarding these enemy combatants.

It was torture then. It is torture now.

10:59 PM  
Blogger Tom Van Dyke said...

I was addressing purely the legal aspects, but good point about the Philippines, Jim. Is it analogous to the current situation? Sure, why not? And because I'm pro-torture, I think this is really great:

The following description by Sergeant Charles S. Riley of the Twenty-sixth Infantry describes a method used to obtain information from Filipino prisoners. It was called the "Water Cure."

"The [prisoner] was tied and placed on his back under a water tank holding probably one hundred gallons.

The faucet was opened and a stream of water was forced down or allowed to run down his tbroat. His throat was held so be could not prevent swallowing the water, so that he had to allow the water to run into his stomach. He was directly under the faucet, with his mouth held wide open. When be was filled with water it was forced out of him by pressing a foot on his stomach or else with the bands; and this continued from five to fifteen minutes. A native interpreter stood immediately over this man as he lay on the floor and kept saying some word which I should judge meant "confess" or "answer."

[If the man did not provide all the information wanted, the process was repeated. This time a syringe was used to pump water from a five-gallon can.]

The syringe did not have the desired effect and the doctor [Dr. Palmer Lyons, an Army contract surgeon] ordered a second one. The man got a second syringe and that was inserted in his nose. Then the doctor ordered some salt and a handful of salt was procured and thrown into the water. Two syringes were then in operation. The interpreter stood over him in the meantime asking for this second information that was desired. Finally, he gave in and gave the information they sought, and then be was allowed to rise."

11:08 PM  
Blogger Winston Smith said...

Right! I apologize. I meant the "enthusiastically pro-torture" as a straw man joke, and it didn't work. In the context and in retrospect, bad idea. I do not think you're pro-torture, Tom, and regret the joke.

As for the straw man charge...well, since nobody would ever say that SCOTUS is right by really DID use a straw man. But it might have been meant humorously.

My apologies.

4:20 PM  
Blogger Tom Van Dyke said...

Thanks for that, WS. My butt's a bit chafed on that stuff, as you know. My observation on the 5-4 SC decision was to point out that there are many matters that have a consensus or long history of being settled [stare decisis]; this isn't one of them.

This is a good summary to date on the issue.

Congress has never explicitly addressed waterboarding, and the administration putatively has discontinued it since Hamdan, altho that SC decision isn't explicit either.

That accounts for all three branches. I'd say that like many things in these challenging and confusing days, most are satisfied to leave our options open.

But stay tuned.

5:03 PM  

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