Monday, May 25, 2009
LEGAL PRECEDENT: Waterboarding IS Torture and IS Illegal!
There was a conservative visitor to this site recently who took issue with some comments I had made about Dick Cheney and the topic of waterboarding as torture. He posted a comment defending Cheney's assertion that waterboarding is not torture and that its use was not only beneficial, but legal as well. I replied to the visitor, and returned later to see that he had commented again, in rapid succession, 4 or 5 times in a row. Some months ago, I had been victimized by an obsessive leftist crackpot I and others jokingly refer to as "War and Peace" for his frequent, repeat, pages-long rambling comments. Seemingly seeing a similar pattern developing this time with this visitor, I quickly skimmed his first two replies and determined they were of the similar hair-splitting variety as had been "War and Peace"'s. I then made the decision to delete them all, as I had done with those from "War and Peace". (These are the only two persons' comments I have ever deleted from this blog and I hope they will be the last). I looked the visitor up and saw he had his own blog, so I visited it and left him a comment explaining that I had deleted his seemingly obsessive and successive comments for an added personal reason, which I won't go into here. I assumed he would understand my reasoning for no longer wanting to carry on the discussion, but I was wrong. He apparently took exception to what I had done (even though many other sites I have visited routinely moderate submitted comments BEFORE they are even allowed to appear, and some are blocked if the site's administrator deems them objectionable. This is standard practice with many). But this fellow evidently didn't see it that way and apparently wanted to make a federal case out of the matter by posting our back and forth point by point on his blog. Even after I had commented I would no longer discuss torture or waterboarding with him. It would appear he is indeed obsessive and may be attempting to make me and what I have written a cause celebre among his friends on the right who support waterboarding and deny it is a form of torture. No doubt he is making an effort to show how supposedly narrow-minded I and we others on the left are who oppose the use of waterboarding. I consider this to be a bit over the top, in view of the circumstances, but I do recognize and acknowledge his right to free speech and interpretation, even though I, as administrator of this site, do find his arguments supporting waterboarding and denying it to be a form of torture personally and morally objectionable, as I do Mr. Cheney's. So I haven't even bothered to revisit his site, nor will I again. The information I present below will make his presentation a moot point, and is directed at all who share his viewpoint.
My visitor has alleged repeatedly that waterboarding is not torture. I maintain that it IS, and that its use by us damages not only our credibility and standing throughout the world, but the future safety of our soldiers and citizens as well. I further believe that its use, as well as other forms of "enhanced interrogation", serve as a dangerous recruiting tool for terrorists the world over. My visitor quotes a number of "experts" including George W. Bush, Dick Cheney, George Tenet (of "it's a slam dunk" fame), the Bush administration's rubber-stamp Attorney General Michael Mukasey, several Vietnam vets who were tortured by the North Vietnamese, and a number of others, who all make the assertion that waterboarding is not torture and that it yields useful information. I counter below, with numerous sources of legal precedent which repeatedly establish waterboarding's status as torture AND an ILLEGAL act which has been successfully prosecuted domestically, most recently in 1983 by the REAGAN Department of Justice, as well as internationally. Get that, folks? Legal PRECEDENT, FACT. Which means it has been decided in numerous court cases and set into law that the practice is indeed TORTURE and is ILLEGAL. Recent history has shown, though, that facts and precednt mean apparently little to hard core conservatives (look at the Bush administration and the Limbaugh crowd as examples of those who let their prejudices cloud their legal and practical reasoning, and who spin those facts to fit those very same prejudices). But I know most moderates, independents, and liberals who read this information will see and agree that what is presented below is relevant and true, meaning, of course, that it is based on established and solid legal foundation and is therefore rationally undeniable. It is, of course, my visitor's prerogative to accept or reject this data, as it is anyone's. My bet, though, would be that, if and when the case of waterboarding ever is presented to the Supreme Court, the Court will side with established legal precedent rather than with Dick Cheney's or my visitor's seemingly selective interpretation of the practice's legality. For there is nothing conservative justices Roberts, Thomas, Scalia, and Alito despise more than reinterpreting law so as to be effectively "legislating from the bench"! Below, then, are proofs that waterboarding is torture, illegal, and must not be used by our government or military as a method of interrogation.
Evan Wallach, a judge at the U.S. Court of International Trade in New York, and who also teaches the Law of War as an adjunct professor at Brooklyn Law School and New York Law School, has prepared an outstandingly well researched and well documented article for the California Journal of Transitional Law. It was written after the passage of the Bush administration's Military Commissions Act of 2006, (parts of which have already been deemed unconstitutional by the Supreme Court), and gives a detailed accounting of prior domestic and international waterboarding prosecutions and convictions. The article is highly critical of Bush administration attorneys John Yoo and Jay Bybee, and even Mukasey himself, for overlooking so much legal precedent and for attempting to spin the act of waterboarding in a new light. Find it as I did by clicking on "Drop by Drop: Forgetting the History of Waterboarding in U.S. Courts" in the related piece found at;
An interesting "digest size" listing of waterboarding convictions can be found by Googling "waterboarding conviction history". Scroll down to and click on "timeline results for waterboarding conviction history". Voila! You will find 10 instances since 1920.
Jonathan Turley, noted constitutional scholar and George Washington University Law Professor, to whom even members of Congress go for legal and constitutional advice, presents his views on the topic of waterboarding as an illegal form of torture at this site:
There are scores of other related articles out there, citing established, legally decided cases which prove my point. I am through splitting hairs with, and will not get into a pissing contest on this very unpleasant practice with my visitor or anybody else. I will no longer personally debate the legal or functional aspects of this most disgusting and reprehensible act. I will instead let these examples of legal scholars and legal precedent serve to illustrate my position. And, until the Supreme Court has proven otherwise, I will continue to insist that waterboarding IS torture, IS illegal, and that Dick Cheney, for this and many other reasons, is a war criminal for instituting its use who must someday stand trial for this and other actions during and leading up to the Iraq War.
NEXT UP: "Time for REAL Representation! (Part VI)", the concluding segment of my series on how unrepresented most average Americans are by their Congresspersons, who have very little in common with them.