A Slice of Torque or: The Final Turn on Torture

Source: Evgeny Nelmin/Unsplash

In the years following the September 11, 2001, terrorist attacks, the debate over torture largely came to take place within the context of waterboarding. Nearly two decades after the attacks, there remains no consensus about what precisely constitutes torture, whether waterboarding fits any of the currently existing definitions of torture, and whether torture is permissible in certain instances. Such confusion may result in impunity for interrogators, a perception of U.S. weakness in the eyes of the international community, or suspicion that because the U.S. is secretive about its waterboarding practices, it must be committing other atrocities as well.

In my new book, Torque, I analyze the torture debate largely in the context of waterboarding. I argue that waterboarding does not fit the legal definition of torture and then examine the morality of torture. I propose a practical solution to the debate, given the need for clarity to protect against impunity, and conclude that even if waterboarding is legally not torture and is morally permissible in certain situations, it may nevertheless be necessary to stipulate that waterboarding is impermissible as a policy matter because the information gained through waterboarding may not outweigh the information lost when nations are no longer willing to share intelligence with the U.S. because we are seen as a nation that tortures.

How would I even find myself needing to address the “even if” part of the preceding sentence? Below is a close-up of one line of reasoning.

Excerpt

It may be argued that waterboarding causes mental harm rather than physical, given that a subject feels like he is being asphyxiated. Psychological torture, in comparison with physical torture, can be thought of as breaking the mind rather than breaking bones by stressing a victim’s “conditions for mental survival.” These conditions are referred to by psychologists as homeostasis, where an individual makes adjustments in order to maintain internal equilibrium despite changes to external stimuli. Psychological torture disrupts a victim’s homeostasis by overwhelming the victim’s ability to make the necessary adjustments to extreme external stimuli.

The 1994 Convention against Torture lists four pathways by which an act constitutes torture: 1) the intentional infliction or threatened infliction of severe physical pain or suffering; 2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; 3) the threat of imminent death; 4) or the threat that another person will be subjected to any of these. This part of the waterboarding analysis is concerned with 2) and 3).

The Defense Department Working Group Report on Detainee Interrogations in the Global War on Terrorism (“Report”) states that mock executions are considered psychological torture because the victim is made to believe that his death is imminent. Imminence requires that the threat be immediate and certain. The immediacy requirement speaks to “conditions for mental survival” because the victim’s homeostasis is disrupted by the stress of imminent death, and he does not have time to make adjustments to maintain equilibrium.

By contrast, the Report specifies that a “vague threat that someday [he] might be killed” does not satisfy the immediacy requirement, and therefore does not constitute mental pain or suffering. An individual who is told that he is about to be waterboarded is less likely to believe that his death is imminent than an individual who is told that he is about to be executed. Waterboarding is unlike an execution because the intended end is not to kill but to extract information.

There are other categories of psychological torture in which waterboarding potentially fits. The Report lists “the administration or application or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.” While waterboarding is not a mind-altering substance, it must be considered whether it is “[an]other procedure calculated to disrupt profoundly the senses.”

The Report interprets “disrupt” as meaning “to break asunder; to part forcibly.” The technique of waterboarding relies on an individual’s senses—his gag reflex—to be working properly. Indeed, if his gag reflex were disrupted or broken, he would not feel the sensation of drowning. Therefore, waterboarding is not a procedure calculated to “disrupt profoundly” the senses, but a procedure predicated on the good working condition of the senses throughout the interrogation.

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To protect against impunity in the context of waterboarding, we may stipulate either of the following: 1) Whether or not waterboarding is torture, we accept that waterboarding is permissible, but the U.S. does not engage in any other forms of torture, or 2) Waterboarding is torture even though linguistic acrobatics may result in plausible actual cause arguments to the contrary, and therefore the U.S. does not permit or implement waterboarding techniques. Both of these stipulations make it clear what the U.S. position is; thus, those who violate the policy will be held accountable. Implementing a clear policy would make it apparent when that policy is violated, and interrogators would no longer be able to “cross the line” with impunity, arguing that no one has agreed where the line actually is.

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© Kaitlin Puccio