Ten Years Later: Is waterboarding really illegal?

September 27, 2011

Sept 11 Month PicIt has been ten years since the September 11 terrorist attacks, which prompted broad legal transformation in many areas.  Throughout the month of September, we’ll be looking at some of those areas and their changes.

For the first post on changes to airport security, click here.

For the second post on habeas corpus and Guantanamo Bay, click here.

For the third post on the legality of the Iraq War, click here.

What if a suspect being held in custody had knowledge of an imminent attack on the U.S.?

What if conventional interrogation techniques had failed to produce this information?

Would such circumstances justify the use of “enhanced interrogation techniques,” otherwise known as torture?

Since the September 11, 2001 terror attacks, such has been the principal springboard for debate on whether the U.S. should employ interrogation techniques – widely considered to amount to torture – in the War on Terror.

Central questions in this debate, such as the ethics or actual efficacy of the practice, relate to policy arguments.

Again, though, to attorneys, policy analyses are subordinate to legal ones.

The definitive question in that arena is whether torture is even legal.

The federal statute criminalizing torture (18 U.S.C. § 2340A) appears to decisively answer this question in the negative.

According to several August 1, 2002 legal memorandums, though, appearances can be deceiving.

These documents, now collectively called the “Torture Memos,” make the legal argument that certain interrogation techniques otherwise regarded as torture may be permissive in the context of the U.S. War on Terror.

Written to provide guidance to the Department of Defense, the Central Intelligence Agency, and President George W. Bush himself, the Torture Memos argued that the techniques in question wouldn’t necessarily be considered torture under the statute’s definition.

These techniques – such as binding in stress positions, sleep deprivation, and most prominently, waterboarding – did not fit the statutory definition of torture because they did not cause severe pain associated with “death, organ failure, or serious impairment of body functions.”

While the tiny argument fragment above may not make it readily apparent, the legal reasoning of the Torture Memos is deeply flawed and has been heavily criticized by legal scholars from all points of the political spectrum.

Even if such an argument could work in court to evade the federal anti-torture statute, there’s Supreme Court precedent to deal with.

Specifically, as early as 1890 and as recently as 2010, the Supreme Court has consistently held that acts of torture are a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

While Thomas and Scalia (and probably Alito, too) would have reliably accepted arguments from the Bush administration* as to why waterboarding isn’t torture, the rest of the Supreme Court, relying on historical precedent, would have no trouble equating the two.

George W. BushOkay, so torture is illegal in the U.S., and the “enhanced interrogation techniques” employed by the Bush administration are almost certainly “torture.”

What does this mean?

Theoretically, any officials and agents that had any hand in these practices could be criminally tried, including former-President Bush and former-Vice President Cheney.

Realistically, however, such a scenario is extremely unlikely.

Aside from the fact that Obama himself has explicitly stated he’s against such prosecutions, allowing such prosecutions may set a precedent that may come back later to haunt political allies.

Outside of the U.S., the prospect of criminal prosecution may not be so farfetched.

Because waterboarding is unequivocally considered torture under the Geneva Conventions by several international bodies, a former Bush administration official involved in such activities could very easily be tried abroad for war crimes – including Bush himself.

In fact, Bush cancelled a trip to Switzerland in February because of the risk of such legal action.

In the end, hopefully whatever information that was extracted by such techniques was worth the permanent passport revocation.

* The Obama administration established very early on that it sought to differentiate itself from the Bush administration on this matter:

Two days after taking office President Obama made an Executive Order that rescinded all previous legal guidance about “detention or the interrogation of detained individuals” and directed that no government agency may rely on any of such opinions on that topic released between 2001 and 2009.