1st I'd like to begin by stating that if lawful authority determines that the use of torture as an interrogation tool is to no longer be permitted by law then it should be taken out of our guys tool box. We're a nation of laws. Stupid or not - until they reach a level of onerousness that is no longer bearable - they should be obeyed.
That said and in answer to your question re: domestic law enforcement:
US Citizens have enumerated rights. One of those rights is to be secure in both body and papers which, I would imagine, precludes the constitutionally legal use of torture in criminal cases against US Citizens. So - NO - I am not OK with using torture as a part of domestic law enforcement (though historically law enforcement in the US quite often used beatings as an interrogation technique and one must wonder if that had anything to do with the lower crime rates in days past compared to now when they don't(?) use beatings that is).
On the other hand:
Non-uniformed combatants/Terrorists are neither criminals nor in most cases US citizens and regardless of what SCOTUS says shouldn't have the same rights as a US Citizen. Non-uniformed combatants/Terrorists are combatants in a war. Whether they are associated with a nation or not, whether they are involved in a declared war or not is of debatable concern and relevancy. Regardless, they are combatants. They are a type of combatant that by all the conventions of war are not considered legitimate. Their rights under the geneva conventions are to the best of my knowledge limited. Torture is a legitimate interrogation method when dealing with their ilk.
Are there ramifications of using torture against terrorists? Maybe - some would argue it frees them to do the same to our guys that get captured. That's a reasonable argument and if we were dealing with an enemy that followed the civilized rules of war would end any debate about using torture hand downs. But we're not dealing with a civilized enemy. We're dealing with animals that cut the heads off of conscious victims with the equivalent of a large pocket knife; an enemy that routinely blows innocent civilians, men, women and children to bits in random bombings. We're dealing with an enemy that either follows no rules or rules it makes up. We're dealing with monsters.
Not Using torture against them changes naught the manner in which they would deal with our people so taking it out of our tool box in an effort to modify a terrorist's behavior seems to be foolish to me.
Should torture be the interrogation method of 1st choice? In most cases probably not. You catch more flies with honey as the saying goes. But there will always be hard cases that will respond to nothing less and even those who will respond to nothing at all.
Torture isn't nice but to remove it completely from our toolbox limits the ability of those responsible for protecting our country from those determined to destroy it.
I'll annoy Balog by posting it all again.
As for the law. Torture is defined under Title 18, Part I, Chapter 113C, § 2340. (
Link). For military personnel, they are subject to the UCMJ (Article 93). There is also the War Crimes Act (18 U.S.C. § 2441), which specifically covers Torture under § 2441 (d)(1)(A) (
Link).
Waterboarding can cause lung damage, dry drowning, brain damage due to asphyxiation or death. This is in addition to severe psychological damage, obviously. Secondary damage of severe bruising and broken bones nearly always occurs due to involuntary struggling or spasms unless proper medical restraints are used to immobilize the subject. The entire point of waterboarding is to trigger the body's natural reaction to drowning. Basically, to make the body think it is in the process of dying. That process makes the brain do specific things. If you were to waterboard an infant or person without higher level brain functions, their body would react the same as if you or a terrorist were being waterboarded. Involuntary muscle spasms, gag reflex, pain responses, etc. Ergo, it is not merely psychological torture.
I'm not sure how folks got into the mindset that one can debate if torture is acceptable or not. It's illegal to do so in America (or its possessions) or to be done by Americans. The citizenship or detention status (POW vs unlawful combatant) of the person being tortured is not mentioned in the laws. Conspiring to do so, again regardless of citizenship or detention status of the person being tortured, is also illegal. That's like debating whether or not grand theft auto is acceptable or not. It is currently a crime. It is specifically illegal and specifically defined. One can, of course, debate whether torture should be legalized. Obviously any specific case of activity that may be construed as torture is up to a federal court to decide if it meets the criteria. But, yes, waterboard is torture and therefore is illegal under Title 18, Part I, Chapter 113C, § 2340 unless otherwise allowed by law (not EO). This is not 'opinion', this is following the legal definition as specified by Title 18, Part I, Chapter 113C, § 2340
Torture isn't nice but to remove it completely from our toolbox limits the ability of those responsible for protecting our country from those determined to destroy it.
If I may make a mild suggestion, Werewolf, the correct question should be 'should torture be made legal' or 'should exemptions be passed into law amending § 2340 and the War Crimes Act to allow torture under specific circumstances'. Proclaiming torture (of any kind fitting the criteria specified in §2340) happens to be legal is provably false. Proclaiming waterboarding does not fit the criteria specified in §2340 is also proveably false, but each instance would obviously have to be judged on its specific circumstances in a federal court. The whole 'innocent until proven guilty' thing applies to torturers.
Torture HAS been removed from the toolbox, unless you can find me legislation that supersedes the existing laws I quoted. It's very possible, as I am not a lawyer. As I understand, under the law as it is, government employees and contractors have willingly and knowingly broken the law ever since "
Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A" (aka Bybee Memo, aka Torture Memo, aka 8/1/02 Interrogation Opinion) was rescinded on Oct 2003 by Jack Goldsmith (chief of the Office of Legal Counsel in the Department of Justice). From my knowledge, the DOJ has just declined to prosecute whomever has violated 18 U.S.C. § 2441 (d)(1)(A) without even the justification of following OLC guidance. You should be arguing that it "needs to be added", rather than it "needs to not be removed".
I recommend reading Yoo's "War by Other Means: An Insider's Account of the War on Terror". It's a poorly written book but illustrates the quality of Yoo's legal opinions very well through his smarmy denials and whining. Goldsmith wrote a less whiny book called "The Terror Presidency", which more clearly illustrates the events that took place regarding the 8/1/02 Interrogation Opinion.
Please do not take my word for any of the above. Please read the laws I pointed out (and the books too, if you wish) or point out any laws that supersede those I specifically pointed out, and prove me wrong.
