I agree with you, Matt, that there are several questions surrounding this issue that, while disturbing, are disputable. “Should we allow torture?” and “Is torture effective?” are two examples. But the question of whether waterboarding is torture is not one of them. There is no serious dispute about whether waterboarding is torture. As for the other issues you raise:
1. Michael Mukasey was one of the chief architects of Bush’s [insert euphemism for torture here] program. He recognizes that John McCain is essentially calling him a liar and naturally feels the need to protect his reputation. I’m not saying that he is wrong, but he is not exactly an impartial observer.
2. The debate about whether waterboarding is torture is a false one. If a foreign enemy waterboards a U.S. prisoner of war, they will be charged under international law with committing the war crime of torture. If a deputy sheriff waterboards a murder suspect in Nebraska, he will be charged under U.S. statutes with torturing a prisoner. Until 2001, there was never a serious dispute about whether waterboarding was torture. It was only after America adopted a utilitarian stance to warfare that the question was even raised. This is a relatively recent development. As John Hutson, former Judge Advocate General of the Navy, who says “Waterboarding was devised in the Spanish Inquisition. Next to the rack and thumbscrews, it’s the most iconic example of torture.”
The legal definition of torture to which the U.S. subscribes can be found in the UN Convention Against Torture:
For the purposes of this Convention,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.
There is simply no legitimate dispute about whether waterboarding fits the historic and current definitions of torture. Those who claim otherwise need to explain why the standard has changed.
3. During the U.S. Army Trials of Japanese War Criminals Conducted in Yokohama, Japan, Yukio Asano was charged with “Violation of the Laws and Customs of War: 1. Did willfully and unlawfully mistreat and torture PWs.” Among the specifications listed were “beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward”
What differences between the Japanese “water torture” (simulated drowning) makes it radically different from the CIA’s method of waterboarding (which is also simulated drowning)?
4. Here is what Malcolm Nance, counter-terrorism and terrorism intelligence consultant for the U.S. government’s Special Operations and a former Navy SERE school instructor, said in Small Wars Journal about the difference between waterboarding in training and what was done by the CIA:
The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt.
Also, the CIA’s own Inspector General says that what they did and what is done in SERE training are completely different:
A footnote in the recently released 2004 CIA Office of Inspector General’s review of the government’s interrogation program appears to undermine a key legal justification that allowed the spy agency to use the controversial technique of waterboarding against suspected terrorist detainees.
A central legal—and polemic—argument for use of waterboarding has been the fact that some U.S. soldiers are subjected to the procedure during training. In 2002, the Department of Justice’s Office of Legal Counsel wrote a memo approving the technique, based in part on the fact that it had produced no long-term ill effects on soldiers who had undergone waterboarding during training. Those memos were later withdrawn by the DOJ.
But the latest review shows the waterboarding technique used on suspected terrorists was different in technique and duration from that administered to U.S. soldiers.
The OIG report says that experts’ initial analysis of waterboarding “was probably misrepresented at the time,” according to the CIA’s Office of Medical Services, because “the SERE [survival, evasion, resistance, and escape program] waterboard experience is so different from the subsequent agency usage as to make it almost irrelevant.”
As a consequence, the OIG found, “according to [the Office of Medical Services], there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”
You wrote, “But others are welcome to theirs, and free to try to induce such pangs in me. I don’t promise them much hope of success.” A reverse argumentum ad misericordiam is probably not the best means for determining how we should treat other human beings, even if they are “unlawful enemy combatants.”
The issue of torturing prisoners cannot be divorced from other issues of human dignity. As our own Russell Saltzman wrote in 2009,
[T]orture is wrong because it can never serve a moral purpose. It serves instead only an immoral purpose: the destruction of an individual’s personhood. It is violence against the imago Dei, the image of God carried by every person.
Crucial to the use of torture is the intentional, systematic, step-by-step reduction of identity and selfhood, the purposeful diminution of the person as person, as the image of God cheapened to something less, to something “unperson.” The “other” is depersonalized. It is this process of thinking which gives us license for abortion, euthanasia, capital punishment, and torture—everything that strips the person of personal humanity.
Do you disagree?