Professor Garnett asked one of the questions that shouldn’t be asked below. Here with is my short essay reply. By the way, I want grading to be 80% spelling and grammar, 10% logic, and 10% for spelling my name right at the bottom of the post. What is torture?
I think it is first necessary to determine the actors. I believe torture is first and foremost a tool of statecraft. If we look to the catechism, the U.N., and other places we’ll see torture used to extract confessions and punish political enemies. This doesn’t mean the techniques of torture can’t be used by other parties. I just think that we would qualify them differently. For example, if Vertically-Challenged Tony performs an unlicensed amputation against the wishes of Stool Pigeon Pat, we could certainly describe the act as torturous, but as a legal matter we would charge Tony with felony battery or some comparable offense. We do this because we recognize Vertically-Challenged Tony could not under different circumstances be performing a righteous act. As we move into government action and particularly government action outside the U.S., agents of the government could be expected to perform similar actions. We shouldn’t forget that we had no issue calling such blatant actions as these torture in the lead up to the Gulf War, and these actions were blessed by the Iraqi government including many acts directly done by one of Saddam’s sons.
With the present debate, we generally aren’t dealing with private citizens being tortured. Where the controversy has arisen is with non-uniformed combatants, also known as terrorists. It would seem that if we were dealing with prisoners of war (POWs), any sign of physical or mental harm would be presumed to be torture until proved otherwise. This in part has to do with the many rights granted POWs under the Geneva Conventions. Formulating a definition of torture in that case would be rather simple. We would define it as any physical or mental harm caused by the State. A defense against the charge would be that the injuries occurred when he attacked a guard.
When dealing with non-uniformed combatants, we don’t have this luxury in part because they do not enjoy the same privileges as POWs. Whether they have the same rights, I’ll leave that question to legal professionals. Not having a government to speak on your behalf would seem from a practical standpoint to limit them. Ironically, in previous days uniformed soldiers were uniformed so as to keep them out of the legal system where their fate was certain; hence spies and saboteurs were allowed to perish in the legal system in which they were caught. Today we want to keep those same combatants out of the legal system, because we are uncertain of their fate.
There is an argument for using tortuous techniques as part of the legal system. Caning in Singapore is not torture for that reason, but if done to an enemy combatant here would be considered torture. (Many human rights activists will argue that it is inhumanly cruel punishment.) The solution seems rather simple, process them through the court system or treat them as POWs. In the phantom ticking time bomb scenario, one could compel a person to testify at court and hold them in contempt if they refuse. A grant of immunity would take care of any 5th Amendment issues. Give judges the option of ordering waterboarding for those held in contempt. Outside of doing that, let’s not pretend that waterboarding is an act in the interests of justice. It is a simple act of torture done under the whim of the executive, no matter how conflicted that executive may be. Lest I be mistaken, one could certainly make the argument that waterboarding should never be a penalty in a civilized state.
Torture is the cause of physical or mental harm by agents of the State or under authorization of the State for purposes contrary to the proper order of the facilities of captives and contrary to the enforcement of judicial penalties.
Ad-Free & Subscriber Log-In