I have been watching the news channels and have listened to numerous talking heads debating whether or not an investigation that may possibly lead to prosecution for the practice of water boarding should be conducted. The views go all over the spectrum about this issue.
First, is water boarding an act of torture?
From Washing University Law Review, Waterboarding is Illegal By Wilson R. Huhn * May 10, 2008
…"Three major treaties that the United States has signed and unambiguously ratified prohibit the United States from subjecting prisoners in the War on Terror to this kind of treatment. First, Common Article 3 of the Geneva Convention, … Second, the International Covenant on Civil and Political Rights,… Third, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment . . ."
Then there is US Code, Title 18, Part 1, Chapter 113C. You can use this link to the Cornell University Law School's web site to read the law as written. written.http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002340----000-.html
Does water-boarding fall in this definition?
(1) "torture" means 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;
Documented facts: Water boarding was used during the Spanish Inquisition. This was a time in history infamous for the use of torture techniques.
Water boarding is done by placing cellophane over the face and pouring water to initiate the body's gag reflex. The person chokes, struggles, swallows involuntarily, vomits, loses unconsciousness, and collapses due to the inability to breath. This process is called drowning and, if uninterrupted, leads to death. Water boarding interrupts the drowning process.
Is this severe physical pain? Is it severe mental pain? Does it cause severe suffering? Does this procedure intentionally specifically inflict this upon another person in physical custody?
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
This is a documented method of drowning.
(C) the threat of imminent death; or
The person being water boarded is being drowned. In successful water boarding, drowning is discontinued before death occurs.
Does water boarding meet the criteria defined under US law and qualify as torture? I think it does and this is a position easily defendable in US Federal Court. I do not think anyone seriously debating this issue sincerely believes that the Supreme Court would not rule water boarding as torture. I believe this is the root cause of the hand-wringing angst among many that supported this action when they knew it was torture and illegal. They are not sorry this was done but they are very, very sorry to be caught and punished. The morality stories most of us are taught as children all have the same theme, "The end does not justify the means."
Next part of the debate: Should the people responsible for actually performing the water boarding be held accountable for their actions?
•These were military members following a superior's orders.
•These were civilian contractors following employer's instructions.
oBoth groups informed this action was legal by order of the US government.
•Did any person perform this procedure believing it was illegible?
•Did others in their presence refuse to perform this action citing their belief it was illegal?
oIs there reasonable doubt that they were aware they were performing an illegal act?
oDoes this mitigate their culpability?
oAre there US law precedents that support this action?
This should be investigated and debated. I think all actions should be identified and followed from authorizing source to the cell. We should know the truth. Decisions about possible prosecution should be addressed after following a fully completed and verified flow chart of each person's actions.
Facts: Opinions were requested on the legality of this practice by attorney at law members of the Justice Department.
Facts: C. Rice, National Security Advisor at that time, George Tenet, then director of the CIA, Former Attorney General John Ashcroft, Dick Cheney former Vice President of the United States of America as well as many others affirmed the lawfulness of this technique.
•Were these legal opinions written based on lawful precedents with fully documented references?
•Were these opinions written with the intention of falsifying known US law?
•Was there a conspiracy among persons writing these opinions to allow suspected illegal procedures to proceed?
•Was any type of duress used on these individuals?
In my mind these are the most critical issues. This is the origination point. I think a full investigation should be done and no one should be immune. I fully believe those that have the most power over other people's lives must be held to the highest court of accountability. That premise is the heart of the very foundation of our society. Any weakness in the credibility of USA being a honest and just nation of law is not defensively.
Arguments against investigation:
•It will weaken the nation during times of crisis. True, but think of this as an individual that broke the law; would we not proceed because the individual's family or community may become weakened?
•It will implicate too many people in power in both parties. Possibly true, but it does not change the fact law was broken and there are consequences to that action.
•This will start a precedent where newly elected administrations will start investigating previous administrations. If laws are broken, investigation is good and should occur. I believe this practice will be extremely limited. Politicians know they live in glass houses and everyone has access to rocks. They will always do what is politically expedient if given the choice.
•Can we as a nation handle the truth? We damn well better be able to handle it. We must; it is our duty and obligation.