Wednesday, April 29, 2009

More Tortured Thoughts

As the subject of torture, and what to do about it (if anything), continues to swirl about, I wanted to pass along a couple of things on the topic.

The first is that, when it comes to waterboarding, the question of whether or not it's torture is really not an open historical question. Fact is, it's been categorized as torture for years, by the United States and other nations. In a 2007 law review article (draft available here*), prof Evan Wallach briefly surveys that history in the United States. Most instances involve international actions - either ours or our foes - but one domestic prosecution is particularly interesting:

In 1983, the Department of Justice affirmed that the use of water torture techniques was indeed criminal conduct under U.S. law. Sheriff James Parker of San Jacinto County, Texas, was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions.
The sheriff and his deputies were all convicted.

Note the time period for that case, smack dab in the middle of the Reagan years. Lest you think that it was the result of some bleeding heart DoJ leftover from the Carter administration, consider this post over at DFtCW. Reagan was a champion of the Convention Against Torture, which, by its terms, appears to require prosecution of torturers. So why, when they so slavishly worship all things Reagan, are the GOPers ignoring his history with this issue? Why do they want to make Zombie Reagan cry?

The other thing goes back to my discussion last week on how we've moved on from a discussion of "is torture wrong" to "does torture work?" If we're going to have that discussion, we need to be open and honest about it, as I said. That includes discussing the possibility that torture has a backlash that outweighs any potential benefit:
The use of torture by the US has proved so counter-productive that it may have led to the death of as many US soldiers as civilians killed in 9/11, says the leader of a crack US interrogation team in Iraq.

'The reason why foreign fighters joined al-Qa'ida in Iraq was overwhelmingly because of abuses at Guantanamo and Abu Ghraib and not Islamic ideology,' says Major Matthew Alexander, who personally conducted 300 interrogations of prisoners in Iraq. It was the team led by Major Alexander [a named assumed for security reasons] that obtained the information that led to the US military being able to locate Abu Musab al-Zarqawi, the head of al-Qa'ida in Iraq. Zarqawi was then killed by bombs dropped by two US aircraft on the farm where he was hiding outside Baghdad on 7 June 2006. Major Alexander said that he learnt where Zarqawi was during a six-hour interrogation of a prisoner with whom he established relations of trust.
"Alexander" refused to let his unit engaged in the "enhanced" techniques, instead relying on old fashioned (and useful) interrogation techniques. If the torture defenders really want to play the "it stopped attacks" card, they need to check the other side and see how the numbers add up.

* If you have access to Westlaw or such, the full cite is Drop By Drop: Forgetting the History of Water Torture In U.S. Courts, 45 Colum. J. Transnat'l L. 468 (2007).

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