I'm not a lawyer so I will leave the legal parsings to others. But I do want to note something quite odd in Andy McCarthy's latest defense of torture as national policy for the US. He wants to argue that those who waterboarded terror suspects were not torturing per se because they were intending to procure intelligence, and not torturing purely for the hell of it.
I don't believe there's much evidence that the intent of the torture program was sadism, although obviously once you condone torture and inhumane treatment of prisoners in any war, the sadism will emerge. And I see no evidence that those who waterboarded Zubaydah were doing it for the evil joy of it (although we don't know who the torturers were exactly in that case, or most others). But this is all irrelevant. The crime of torture is not about sadism. It is specifically about getting intelligence. The UN Convention's definition couldn't be clearer on this:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
Torture is not sadism; it can be done from misguided but not sadistic motives, i.e. the false belief that it's necessary to procure intelligence. No SERE training does this. No SERE-trained soldier is genuinely being coerced to give up information; they have the ability to end the session at any time; and the point is to help them resist such torture techniques. Those administering it are thereby not torturers - legally or morally. They are not trying to obliterate a human being's agency by subjecting him to this terrifying ordeal for 183 times; they are trying to train someone to retain their psychic integrity under this kind of pressure. (And you'll notice that waterboarding can be used this way on trainee soldiers in a way that, say, stress positions, or cold cells, can't. That's because stress positions and cold cells are, in most cases, worse than waterboarding.)
What the far right wants is to turn this into a question of graphic sadism or to present those of us who support Obama's return to the rule of law and human decency as seeking to prove the equivalence of George Bush and Pol Pot. We're not. We're saying that torture is torture; that the intent to procure intelligence from it in no way mitigates it (indeed more precisely fits the UN definition); that America did it; and that those responsible need to be held accountable.
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