For their tacit support of waterboarding. In an interview, Giuliani was asked for his views on using “enhanced interrogation techniques,” including waterboarding. He responded that in a hypothetical scenario that assumed an attack, “I would tell the people who had to do the interrogation to use every method they can think of.” Prompted again on the specific use of waterboarding, he repeated “every method they could think of.” Mukasey said he found waterboarding to be “repugnant,” but he wouldn’t answer whether it amounted to torture.

http://www.armedforcesjournal.com/2007/12/3230108

I teach on military justice and on the law of war regularly. One of the ironies of the current debate on interrogation is that the ones who never went to war are trying to prove how tough they are by favouring torture, while the ones who have seen the elephant are *all* against it.

Well done, AFJ, for putting the basic facts out there: It is torture, it is evil and IT DOES NOT WORK!

Jim
elderly JAG revervist

Here's an puzzle that I'd like to see discussed.

1. All waterboarding is "torture" (per the AFJ)

2. The United States military has historically used waterboarding on its own personnel during SERE (and other sorts of) training

Then, it would seem to follow that

3. The United States military has occasionally used "torture" on its own service members.

And, since torture is against the law, then it would seem

(4) the U.S. military has been violating the law against torture.

Now, to deny (3) , it would seem that you could say that (1) is false. You wouldn't have to say that waterboarding is never torture, you could simply say that it is usually torture or is torture in almost all cases. But you couldn't state that it was torture at all times and in all circumstances. You couldn't be absolutist about it.

or, you could deny (2) and say that the U.S. military never used "waterboarding" in training, or at least never used it since the Convention Against Torture was incorporated into U.S. law in 1994. Or, was it used in a way that rendered it "not torture."

Now, I'm not a lawyer, but it would seem to me that military lawyers would not be anxious to concede that they have permitted American military personnel to be "tortured." So, how do you get around what seems to be that conclusion.

Thanks.

What puzzle? The American military personnel were consenting to have the proceedure applied to them so that they would be better able to resist it if it were applied involuntarily.

The element of "informed consent" takes it out of the realm of "torture" as much as the element of "informed consent" takes an appendectomy out of the realm of "assault with a deadly weapon".

But, then again, you already admitted that you weren't a lawyer so you are forgiven for not knowing the law.

Thank you, Mr. Universal Curmudgeon for that response. I am not a lawyer, that is, one who is "learned in the law." So, I stand humble before those who are far wiser than I on such juridical matters. I look forward to Mr. Curmudgeon offering a precise legal definition of "torture," so that future discussions can proceed in an orderly and well-disciplined manner, free from ad hominem and equivocations. Then, those of us who are not lawyers "learned in the law" may freely join in the discussion without censure.

Until then...

You seem to suggest that whether a given "technique" counts as "torture" is relative or dependent of other contextual aspects surrounding the technique itself. It is not the "technique" per se, that allows us to call a technique "torture" but the broader context. In this case, that broader context includes "consent." I wonder--Could there be other "contexts" that might render the technique, "non-torture." Or is it ONLY the broader context of "consent?"

Maybe it is because I am not a lawyer, that I continue to be puzzled by this. The assertions of those who may be called "absolutists" or "absolute prohibitionists" seem to argue that the technique is evil in itself. But surely, if this were the case, we would not employ a technique EVEN IF someone were to consent to it. I'm sure that if you looked hard enough you might find a really hard dude out there who might just "consent" to, say, a more gory and undisputible form of torture--perhaps the removal of some body part, or some type of incredible pain for short duration. And yet, we would never, I presume, permit such "torture," even with someone's consent. (Yes, Senator, Capt. Scmuckatella, consented to the 'ole "bamboo shoots under the fingernails" torture during SERE training, but it really wasn't torture because he consented to it! That's what the lawyers, told us.)

So, what makes waterboarding DIFFERENT from, say, getting a volunteer to consent to chopping off a finger, or inserting some sharp object under the finger nails or other more grisly and undeniable forms of torture? Why would our government (and military lawyers) permit, as a long-standing practice, one form of "torture" (if consented to), while absolutely forbidding other forms of torture (even if they were consented to)?

Let me suggest that once you begin to probe more deeply into that answer, you will at least begin to see why "waterboarding" is a harder case than it may appear. Not being a lawyer, I wouldn' know the technical legal term, (or the jurisprudential term, if you inclination is more toward legal philosophy) but for the rest of us it MIGHT suggest that waterboarding is "not as bad as" these other things. It is "not as bad" because one can render it "non-torture" by "consenting" to it.

This does NOT mean that it should not be banned, without exception (even if its employment might prevent a mass casualty attack?) It doesn't mean that it should ever be permitted under the UCMJ.

It does suggest that "waterboarding" is closer to the red line than other techniques and that those who argue that whether it is "torture" is "context-dependent" and thus should be "safe, legal and rare," are not the self-evidently evil monsters they are made out to be.