The Torture Question


The big deal in Congress currently is how to treat detainees at Guantanamo, even though the Detainee Treatment Act was signed into law in December 2005 and stated as a general mandate that “No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” There have been no complaints.

At the beginning of the conflict precipitated by 9/11, the president, having no precedent to follow with respect to captured combatants not part of an organized, uniformed, national army, ordered that Al Qaeda prisoners be tried in military tribunals, such commissions authorized by the Constitution (Articles I and II). Last June, the Supreme Court overturned the process, particularly citing Common Article 3 of the 1949 Geneva Conventions. This is the appropriate section concerning prohibitions as placed in force in October 1950:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The SCOTUS decision was by a 5-3 vote, but Chief Justice Roberts didn’t participate since he had joined in the opinion affirming the president’s action in the Appeals Court opinion preceding the High Court’s decision. The sticking point, however, lies in the fact that Al Qaeda – not even a government – has never been and could never be a party to the Geneva Conventions and has no standing in the world community. Indeed, its proclivity for beheading people flies in the face of Article 3, even if it had standing. The Court’s action is indicative of the need for strict constructionists, not warm-fuzzies interpreting the law.

In a recent speech, the president indicated that 14 detainees involved in Al Qaeda had been transported to Guantanamo from other countries, where they had undergone interrogation by the CIA. He asserted that they had experienced “stressful questioning” that had produced results saving thousands of lives but had not been tortured. No one has furnished any proof otherwise. On the basis of the Court’s decision, the president/court has placed the ball in Congress’s court, with the CIA interrogating procedures also a matter to be handled, since the prisoners are in a U.S. facility.

The lawmakers despise the situation, since the president is demanding that they be specific regarding acceptable interrogation procedures, lest the CIA operatives run afoul of what anyone can say the law is. Some lawmakers insist that the prisoners not be hassled, lest Americans in some future conflict face retribution, notwithstanding what happened to prisoners in Vietnam or those in the Balkans or those Americans captured by Saddam during the Gulf War under the Geneva protections.

The keyword has been “water-boarding,” an interrogation-activity said by some senators to be inhumane, though no one is injured by it, either temporarily or permanently. Water-boarding – without the board – was the treatment for non-swimmer recruits in naval boot camp in the 40s. They were simply made to jump from a small tower into the water until they either figured out how to swim a prescribed distance or were near drowning, at which time they would be pulled out so they could get their breath and repeat the activity.

The irony lay in the fact that it didn’t matter if they never learned to swim…and some didn’t. Thankfully, the activity helped me to a case of pneumonia and 18 blessed days in the hospital, skipping KP, swimming classes (not supposed to go in water because of ear problems, in the first place), and ten days of the camp. So much for the “torture” of water-boarding.

Defining torture, dignity, humiliation, etc., is in the mind of the definer, and folks don’t agree, but when considering the extraction of information people usually don’t say much about procedure because they still see 9/11, with all the flames and the bodies hurtling down from 80 stories. Being made to listen to the Red-Hot Chili-Peppers or losing some sleep in a cold room – and even water-boarding – seen in that light is like a stroll in the park.