So far, I’ve been reluctant to enter the torture debate. That’s not because it isn’t important (it is) or because I’m unsure of my views (I oppose torture). Rather, this issue has encouraged the tendency of the blogosphere to generate more heat than light. The public discourse doesn’t benefit much from the polemics of bloggers who, on the whole, lack specific knowledge of interrogation practices at Guatananmo and elsewhere, or of the legal principles involved.
But I was provoked by a recent post at David Frum’s newmajority.com, which is representative of recent efforts to salvage some honor for the Bush administration. Sure, the argument goes, waterboarding was torture. But,
Be that as it may, that technique was used three times, the last being in 2003, and was banned internally by the Bush administration in 2006. So, even if you think waterboarding is unquestionably torture, then the "end of torture" came in 2003, or at the latest 2006.
The author, one Michael Anton, goes on to argue that the President recent executive ordering limiting interrogations to military standards therefore can’t be described as banning torture. He asks,
So what other practices does Obama’s Executive Order end? According to the article, "temperature manipulation and stress positions," as well as "trick[ing] prisoners into believing they would face physical harm from foreign intelligence services if they didn’t cooperate." Maybe these are very terrible things. But are they "torture" either under US law or in any reasonable person’s definition?
It’s hard to judge whether Anton is really as ignorant as he would like to appear. Because there is no question that the methods are torture. One reason is that the US has signed international conventions prohibiting them, and treaties are, as every high-school student ought to know, the law of the land. Another is that they are explicitly identified as such in various military manuals on interrogation. For purposes of criminal prosecution, incidentally, there’s no distinction between torture and less dramatic violence. Coerced statements are inadmissible, period, in a court of law.
But don’t take my word for it. Ask Susan J. Crawford, the chief judge of the military tribunals at Guatanamo, who explicitly identified the "sustained isolation, sleep deprivation, nudity and prolonged exposure to cold" to which Mohammed al-Qahtani was subjected as torture. The opinion of a "reasonable person" is legally irrelevant. It will now be impossible to try the alleged 20th hijacker.
It’s true that al-Qahtani was interrogated in 2002, and that the torture techniques used on him were later banned. But if you’re inclined to wonder, like Anton, why "America’s reputation has suffered or that so many Americans believe the worst of their own government", you might begin with the fact that the public was lied to for years about what was being done in its name and, ostensibly, in its defense.
It would be nice to think that Obama’s executive order only formalized prohibitions that were already in place. But it’s just such disingenuous defences of what the Gestapo called verschaerfte Vernehmung that show why it was necessary.