PrintMay 14, 2011
Waterboarding is Not Unconstitutional
The Constitution does not forbid the infliction of physical pain on another person to force his compliance with certain courses of action. The Bill of Rights says specifically that no person "shall be compelled in any criminal case to be a witness against himself" and it also bans cruel and unusual punishments. It is therefore unconstitutional to use torture to (1) force somebody to confess to a crime, or (2) as a punishment.
Let's review the context in which these statements were written. It was standard practice in many European countries to torture suspects to force them to confess to crimes and also to name accomplices. Tortures such as breaking on the wheel and burning alive were meanwhile used as punishments in most parts of Europe. The Founding Fathers decided quite rightly that neither practice had any place in their new Republic.
It is normally a serious felony to intentionally or even recklessly kill another human being. Both the law and common sense say however that the law's hypothetical "reasonable person" can do exactly that to protect himself or another innocent person from an imminent threat of death or serious physical harm. A police officer may be duty bound to kill an individual if that is what it takes to stop him from killing, raping, or seriously injuring an innocent person.
If one can legally kill (homicide) to stop a violent felony, it stands to reason that one can legally torture (aggravated assault) to do the same thing. We refer to extremely rare situations in which an individual in police or military custody retains control over a violent felony that is still in progress. It then becomes reasonable and necessary to compel him by any necessary means to end that menace to innocent life.
Perhaps the most famous, or infamous, fictional example took place in the movie Dirty Harry with Clint Eastwood. Harry Callahan's denial of medical aid to a wounded suspect who said he had buried a girl alive with only enough air to last for a certain amount of time was neither a punishment nor extraction of a confession. It was the reasonable and necessary use of physical coercion to protect an innocent person. The District Attorney was however correct that the evidence so obtained was nonexistent as far as the law was concerned.
Another example would be a situation in which a group of kidnappers force somebody into a car, but one kidnapper is left behind after being wounded. The police need to know where the other kidnappers took the victim, whose life the law presumes to be in danger. If the prisoner does not reveal this information it could easily be reasonable and necessary to force him to disclose it for the exclusive purpose of rescuing the victim. Nothing the prisoner discloses under duress must however be used to prosecute him.
The status of "reasonable and necessary" also requires far more than a mere suspicion or even probable cause that somebody is a clear and present menace to another person's life. Police instructor Masaad Ayoob's In the Gravest Extreme underscores what is necessary to make deadly force reasonable and necessary. It cites shoot/don't shoot decisions in which the "obvious" bad guy is in fact an innocent person or a plainclothes police officer. The shooting of Gabrielle Giffords and others provided a perfect example; an armed citizen saw a man with his hands on a gun but did not fire at him. This was fortunate because the man had just wrested the gun from the alleged shooter.
The same standards of "reasonableness" that apply to homicide must therefore apply to torture (aggravated assault). In the fictional Dirty Harry example, the Scorpio killer bragged to the detective face to face that he had buried an innocent person alive. (This was when he had the upper hand and not after Callahan turned the tables on him.) It is similarly reasonable to assume that anybody caught red-handed in an act of terrorism such as planting a bomb, hijacking an airplane, or shooting at U.S. troops or civilians, is a terrorist. In contrast, somebody who is captured or arrested on mere "probable cause" is only a suspect.
Critics of waterboarding ask whether we want the terrorists to treat Americans the same way. The terrorists treat our people worse; they cut the throats of flight attendants on 9/11, burned thousands of people alive in the Twin Towers, sawed off Danny Pearl's head, and perpetrated countless other atrocities. With very few exceptions, they do not capture American soldiers alive. The United States' Lieber Code of 1863 said quite plainly that enemy units, even those that wear uniforms and bear arms openly, that do not give quarter receive none.
Terrorists have no rights that any nation is obliged to recognize under the Hague and Geneva Conventions. Uniformed combatants who conduct themselves according to the laws of war have the right to surrender and be treated as prisoners of war, which means they can be asked only for their names and ranks. "Unlawful combatants" who for example dressed in the other side's uniforms were, on the other hand, simply stood up against the nearest wall and shot as recently as the Second World War.
Helmuth von Moltke's army routinely executed francs-tireurs, or "free-shooting" French civilians who took potshots at Prussian soldiers in 1870. The Lieber Code added explicitly that "Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter" and added that enemy scouts who dressed as civilians could be executed as spies.
Those who complain that terrorists are not treated in accordance with the laws of war should therefore be grateful that this is in fact true. Otherwise the United States would not send captured terrorists to Guantanamo, or to be waterboarded in third countries, nor would Israel process terrorists through its revolving-door justice system. Both countries would hold drumhead court-martials to determine beyond a reasonable doubt that the individuals in question were waging war while dressed as civilians and, upon conviction, kill them on the spot.
Disclaimer: the author is not an attorney and nothing here should be construed as legal advice.
