Monday, March 10, 2008

On torture, waterboarding, and international law

This is from a posting on one of my bioethics listservs. It is difficult to provide the full context without extensive quotations from others, which might be a violation of listserv ethics. Suffice it to say that I am responding to competing arguments on the definition of torture under the Geneva conventions and whether waterboarding constitutes torture under international and domestic law. Perhaps that is enough to render my posting somewhat intelligible:

Erich wrote:"... Is the US some sort of noble creation? Are we the beacon which leads to ever greater virtue? Nonsense. We advertise already in NY Harbor "give me your hungry and your poor, the seizing masses aiming to be free" (the seizing is wrong but I can't think of the correct word)--and then we blatantly violate and have always violated them. ..."

The correct line from Emma Lazarus' The New Colossus is as follows:
"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

Note that the "huddled masses" are "yearning to breathe free"--not to be choked by water forced up their nostrils.

Re: Larry's argument about the second line on torture qualifying (in fact, swallowing) the first:
While not a specialist on international human rights law, I am a lawyer, and I too read the reference to sanctions in this context as referring to "collateral" consequences of legally imposed punishments for criminal offenses (which, for purposes of US law and under our Eighth Amendment, may not be "cruel and unusual"). It would be peculiar indeed for an international convention to give signatory states the right to negate the central purpose of the convention by an ipse dixit redefining the core term at the heart of the convention--and particularly to do so via a classified administrative decision rather than national legislation or judicial decision. Indeed, it would take the peculiar combination of unmoored legal "creativity", moral bankruptcy, and shamelessness characteristic of the Bush Justice Department (and John Yoo in particular) to offer up such an interpretation.

On a related matter, my recollection is that Alan Dershowitz argued for a "torture warrant", which presumably would require a legal showing acceptable to a judicial officer or tribunal of some sort, insuring at least a modicum of quasi-independent third party review. I wouldn't overstate the independence or civil liberties commitment of the existing FISA court, whose record of compliance with administration requests is nearly complete, but presumably it offers something a tad more objective/disinterested than the judgment of a CIA operative in the field.

Alan Jay Weisbard
University of Wisconsin (Law, Medical History and Bioethics, and Jewish and Religious Studies)

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