Waterboarding is torture, and it's baffling that anyone pretends otherwise
Recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and those rights derive from the inherent dignity of the human person.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines and prohibits torture. The US has signed and ratified this treaty. It was entered into force in the United States on November 20, 1994 with authority equal to US federal law. Excerpted from this treaty:
Article 1
1. For the purposes of this Convention, the term "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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
[...]
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The Senate ratified the treaty along with a statement containing reservations, declarations, and understandings. The first understanding is extremely important in interpreting what torture is or isn't under the treaty:
(1)(a) That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
[...]
(2) That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'
The second is noted as a side issue.
Christopher Hitchens is an international journalist who in May 2008 underwent waterboarding at the hands of anonymous special forces veterans in order to write about it from personal experience. Note I bring this up because it was part of what inspired me to write this argument, not because it's vital to it. Nonetheless it's useful as it describes the process and psychology in a vivid anecdotal way. He begins:
It goes without saying that I knew I could stop the process at any time, and that when it was all over I would be released into happy daylight rather than returned to a darkened cell. But it’s been well said that cowards die many times before their deaths, and it was difficult for me to completely forget the clause in the contract of indemnification that I had signed. This document (written by one who knew) stated revealingly:
“Water boarding” is a potentially dangerous activity in which the participant can receive serious and permanent (physical, emotional and psychological) injuries and even death, including injuries and death due to the respiratory and neurological systems of the body.
As the agreement went on to say, there would be safeguards provided “during the ‘water boarding’ process, however, these measures may fail and even if they work properly they may not prevent Hitchens from experiencing serious injury or death.”
Of the actual 'interrogation', he wrote:
You may have read by now the official lie about this treatment, which is that it “simulates” the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning-or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure. The “board” is the instrument, not the method. You are not being boarded. You are being watered. This was very rapidly brought home to me when, on top of the hood, which still admitted a few flashes of random and worrying strobe light to my vision, three layers of enveloping towel were added. In this pregnant darkness, head downward, I waited for a while until I abruptly felt a slow cascade of water going up my nose. Determined to resist if only for the honor of my navy ancestors who had so often been in peril on the sea, I held my breath for a while and then had to exhale and-as you might expect-inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge, wet paw had been suddenly and annihilatingly clamped over my face. Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the pre-arranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me. I find I don’t want to tell you how little time I lasted.
He tried again:
...I said, with slightly more bravado than was justified, that I’d like to try it one more time. There was a paramedic present who checked my racing pulse and warned me about adrenaline rush. An interval was ordered, and then I felt the mask come down again. Steeling myself to remember what it had been like last time, and to learn from the previous panic attack, I fought down the first, and some of the second, wave of nausea and terror but soon found that I was an abject prisoner of my gag reflex. The interrogators would hardly have had time to ask me any questions, and I knew that I would quite readily have agreed to supply any answer. I still feel ashamed when I think about it. Also, in case it’s of interest, I have since woken up trying to push the bedcovers off my face, and if I do anything that makes me short of breath I find myself clawing at the air with a horrible sensation of smothering and claustrophobia. No doubt this will pass.
I am somewhat proud of my ability to “keep my head,” as the saying goes, and to maintain presence of mind under trying circumstances. I was completely convinced that, when the water pressure had become intolerable, I had firmly uttered the pre-determined code word that would cause it to cease. But my interrogator told me that, rather to his surprise, I had not spoken a word. I had activated the “dead man’s handle” that signaled the onset of unconsciousness. So now I have to wonder about the role of false memory and delusion. What I do recall clearly, though, is a hard finger feeling for my solar plexus as the water was being poured. What was that for? “That’s to find out if you are trying to cheat, and timing your breathing to the doses. If you try that, we can outsmart you. We have all kinds of enhancements.” I was briefly embarrassed that I hadn’t earned or warranted these refinements, but it hit me yet again that this is certainly the language of torture.
It's universally agreed that the function of waterboarding is to provide the experience of drowning. The victim, at least subconsciously, believes they are being killed, and panics, thrashing, breathing involuntarily, gagging, swallowing water, even experiencing laryngospasm which can prevent them from breathing even after they're given air. Note that the last part can actually kill them just from their own body's response to the experience; the fear of death isn't unfounded, even under controlled conditions, as suggested by the waiver Christopher Hitchens was forced to agree to.
The question of whether waterboarding constitutes torture in the United States -- at least as far as it being unambiguously illegal -- comes down to whether it is specifically intended to inflict severe physical or mental pain and suffering (mental suffering involving prolonged mental harm) caused by or resulting from the threat of imminent death.
The threat of imminent death is unambiguous here; the entire purpose of the technique is to induce a near-death experience and thereby trigger the psychological terror and painful physiological defense mechanisms that go with it.
Prolonged mental harm is demonstrated both by the large number of people who have post-traumatic stress disorder from normal drowning experiences (no direct evidence about waterboarding, but it's natural to expect the trauma of near-drowning is amplified by interrogation conditions, not reduced) and Hitchens' own anecdotal reports of psychological aftereffects on himself (waking up struggling with bedcovers, horrible sensation of smothering when short of breath).
The US Senate agreed, without reservation, that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture" and that "An order from a superior officer or a public authority may not be invoked as a justification of torture." They further agreed, without reservation, that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."
These obligations are a part of US federal law, as are all treaties. They are a contract between nations in good faith. It seems to me that the argument about waterboarding is not subject to the judgments and questions of whether it is actually "torture" or not; there is little ambiguous about the fact that it is a near-death simulation designed to inflict psychological terror and involuntary painful physical responses. The question seems to me to be more properly whether the United States ought to denounce its commitment to preventing torture in all cases, and move to a more shades of gray stance.
Those who wish to argue in favor of waterboarding should do so based on the effectiveness of the technique, and by refuting the argument that torture is devastating to the image of the United States in the world and will have a net negative effect on its security. They should not pussyfoot around about whether it's torture or not when there's little case to be made otherwise. Own up to it, and then push past it. Or try at least. I don't think that argument can be won, personally. But I know the argument that it isn't torture is a real loser.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines and prohibits torture. The US has signed and ratified this treaty. It was entered into force in the United States on November 20, 1994 with authority equal to US federal law. Excerpted from this treaty:
Article 1
1. For the purposes of this Convention, the term "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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
[...]
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The Senate ratified the treaty along with a statement containing reservations, declarations, and understandings. The first understanding is extremely important in interpreting what torture is or isn't under the treaty:
(1)(a) That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
[...]
(2) That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'
The second is noted as a side issue.
Christopher Hitchens is an international journalist who in May 2008 underwent waterboarding at the hands of anonymous special forces veterans in order to write about it from personal experience. Note I bring this up because it was part of what inspired me to write this argument, not because it's vital to it. Nonetheless it's useful as it describes the process and psychology in a vivid anecdotal way. He begins:
It goes without saying that I knew I could stop the process at any time, and that when it was all over I would be released into happy daylight rather than returned to a darkened cell. But it’s been well said that cowards die many times before their deaths, and it was difficult for me to completely forget the clause in the contract of indemnification that I had signed. This document (written by one who knew) stated revealingly:
“Water boarding” is a potentially dangerous activity in which the participant can receive serious and permanent (physical, emotional and psychological) injuries and even death, including injuries and death due to the respiratory and neurological systems of the body.
As the agreement went on to say, there would be safeguards provided “during the ‘water boarding’ process, however, these measures may fail and even if they work properly they may not prevent Hitchens from experiencing serious injury or death.”
Of the actual 'interrogation', he wrote:
You may have read by now the official lie about this treatment, which is that it “simulates” the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning-or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure. The “board” is the instrument, not the method. You are not being boarded. You are being watered. This was very rapidly brought home to me when, on top of the hood, which still admitted a few flashes of random and worrying strobe light to my vision, three layers of enveloping towel were added. In this pregnant darkness, head downward, I waited for a while until I abruptly felt a slow cascade of water going up my nose. Determined to resist if only for the honor of my navy ancestors who had so often been in peril on the sea, I held my breath for a while and then had to exhale and-as you might expect-inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge, wet paw had been suddenly and annihilatingly clamped over my face. Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the pre-arranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me. I find I don’t want to tell you how little time I lasted.
He tried again:
...I said, with slightly more bravado than was justified, that I’d like to try it one more time. There was a paramedic present who checked my racing pulse and warned me about adrenaline rush. An interval was ordered, and then I felt the mask come down again. Steeling myself to remember what it had been like last time, and to learn from the previous panic attack, I fought down the first, and some of the second, wave of nausea and terror but soon found that I was an abject prisoner of my gag reflex. The interrogators would hardly have had time to ask me any questions, and I knew that I would quite readily have agreed to supply any answer. I still feel ashamed when I think about it. Also, in case it’s of interest, I have since woken up trying to push the bedcovers off my face, and if I do anything that makes me short of breath I find myself clawing at the air with a horrible sensation of smothering and claustrophobia. No doubt this will pass.
I am somewhat proud of my ability to “keep my head,” as the saying goes, and to maintain presence of mind under trying circumstances. I was completely convinced that, when the water pressure had become intolerable, I had firmly uttered the pre-determined code word that would cause it to cease. But my interrogator told me that, rather to his surprise, I had not spoken a word. I had activated the “dead man’s handle” that signaled the onset of unconsciousness. So now I have to wonder about the role of false memory and delusion. What I do recall clearly, though, is a hard finger feeling for my solar plexus as the water was being poured. What was that for? “That’s to find out if you are trying to cheat, and timing your breathing to the doses. If you try that, we can outsmart you. We have all kinds of enhancements.” I was briefly embarrassed that I hadn’t earned or warranted these refinements, but it hit me yet again that this is certainly the language of torture.
It's universally agreed that the function of waterboarding is to provide the experience of drowning. The victim, at least subconsciously, believes they are being killed, and panics, thrashing, breathing involuntarily, gagging, swallowing water, even experiencing laryngospasm which can prevent them from breathing even after they're given air. Note that the last part can actually kill them just from their own body's response to the experience; the fear of death isn't unfounded, even under controlled conditions, as suggested by the waiver Christopher Hitchens was forced to agree to.
The question of whether waterboarding constitutes torture in the United States -- at least as far as it being unambiguously illegal -- comes down to whether it is specifically intended to inflict severe physical or mental pain and suffering (mental suffering involving prolonged mental harm) caused by or resulting from the threat of imminent death.
The threat of imminent death is unambiguous here; the entire purpose of the technique is to induce a near-death experience and thereby trigger the psychological terror and painful physiological defense mechanisms that go with it.
Prolonged mental harm is demonstrated both by the large number of people who have post-traumatic stress disorder from normal drowning experiences (no direct evidence about waterboarding, but it's natural to expect the trauma of near-drowning is amplified by interrogation conditions, not reduced) and Hitchens' own anecdotal reports of psychological aftereffects on himself (waking up struggling with bedcovers, horrible sensation of smothering when short of breath).
The US Senate agreed, without reservation, that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture" and that "An order from a superior officer or a public authority may not be invoked as a justification of torture." They further agreed, without reservation, that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."
These obligations are a part of US federal law, as are all treaties. They are a contract between nations in good faith. It seems to me that the argument about waterboarding is not subject to the judgments and questions of whether it is actually "torture" or not; there is little ambiguous about the fact that it is a near-death simulation designed to inflict psychological terror and involuntary painful physical responses. The question seems to me to be more properly whether the United States ought to denounce its commitment to preventing torture in all cases, and move to a more shades of gray stance.
Those who wish to argue in favor of waterboarding should do so based on the effectiveness of the technique, and by refuting the argument that torture is devastating to the image of the United States in the world and will have a net negative effect on its security. They should not pussyfoot around about whether it's torture or not when there's little case to be made otherwise. Own up to it, and then push past it. Or try at least. I don't think that argument can be won, personally. But I know the argument that it isn't torture is a real loser.