Saturday, May 23, 2009


Waterboarding and Torture

I just posted this at VC:

Suppose waterboarding is torture, regardless of the motivation. Has this radio host thus conspired to commit torture (on himself) and is subject to the penalties of the federal statute?

The same point applies, of course, to the SERE training.

This was in response to a VC story about a radio host who had himself waterboarded to see what it was like.

Assistant AG Dan Levin had himself waterboarded too, before confirming that the technique was legal. That outraged current OLC staffer Marty Lederman, though I can't really see why he thinks it outrageous that someone would try out a technique on himself to see how bad it was.

The statute is found via

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

Now that I see it, I see that the radio host is exempt (not "under color of law") and the SERE waterboarding arguably so (not "under his custody or physical control"). It might also be that the military and CIA are exempt, by the "color of law" condition, since in doing this to foreigners I don't know if they are bound by normal law.

Update: Suppose we had SERE training going on in Europe. Would that be covered by the statute?

Voluntariness does not enter into the definition of the crime. "custody or physical control" is the key. If a prisoner in Afghanistan volunteered to be waterboarded, and waterboarding is torture, the prisoner is still under custody of the government and so the statute would still apply.

This is not unreasonable, because voluntariness is not a defense for lots of crimes. That you volunteer to be cannibalized does not eliminate the crime, for example.

Thus, the question is whether a soldier is under custody or physical control of the government. Those are terms of art in law, so I don't know the answer.


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