Case Law Establishes Waterboarding As Torture
Right wing extremists who are determined to overturn American laws against torture have found themselves a new talking point. They insist that, although the Constitution, federal law, and international laws to which the United States is a signatory clearly state that the inhumane treatment of prisoners is forbidden, the use of the form of torture known as waterboarding can continue because there is no case law specifically establishing waterboarding as a form of illegal torture.
An editorial published in the Washington Post, written by Evan Wallach, former military lawyer, judge on the U.S. Court of International Trade, and professor of law at New York Law School and Brooklyn Law school, demolishes this assertion. In the editorial, Judge Wallach cites the conviction in 1983 of a Texas sherrif and three deputy sheriffs who forced confessions out of criminal suspects using waterboarding as a form of torture during interrogations.
Judge Wallach also cites a civil court case in which Philippine dictator Ferdinand Marcos was successfully sued in an American District Court for torturing a prisoner using waterboarding techniques.
Furthermore, Judge Wallach points out that, after World War II, the United States successfully convicted Japanese soldiers who used waterboarding torture as war criminals, through the International Military Tribunal for the Far East. Additional American tribunals also successfully prosecuted Japanese soldiers for the crime of waterboarding American prisoners.
Judge Wallach even goes back as far as the Spanish-American War, when American soldiers were convicted in courts martial for torturing prisoners with waterboarding.
The case law establishing waterboarding as a form of illegal torture is strong in international law, in American military law, in U.S. criminal law, and in U.S. civil law. For right wing activists to argue that such case law does not exist is not merely absurd. It is morally depraved.
(Source: Washington Post, November 4, 2007)
Good job finding inapplicable and misleading case law based on an opinions piece that you link to which is equally misleading. It has nothing to do with right-wing/left-wing, it has to do with the rule of law.
First, for clarification, what cases are being referred to within the opinions piece? I looked up the one in regard to the Phillipine dictator and the civil suit, but I couldn’t find the text the author of the opinions piece was quoting in the primary decision or the appeals decisions. There’s no indication of the Texas case’s cite either.
Now, as for the problems with the cases cited, none of them is mandatory authority for any US court. Military tribunals in Japan post WW2 are not binding on the US Supreme Court, to the best of my knowledge, nor is the law the same. Civil cases have no authority to define torture because, unless there’s a new cause of action for civil suits titled “Torture”, there’s no burden for the plaintiff to prove “torture” occured.
If you want to show valid CASE LAW establishes waterboarding as torture (which you WONT, because if it existed, it would have been brought up to Mukasey in the Senate), you need to find a CRIMINAL CASE in the UNITED STATES in which the judges held that Waterboarding, or something similar, violated a CRIMINAL LAW.
Now, it may be possible that Judge Wallace found a case that proves this, but it’s not through military tribunal (as they are subject to the code of military justice, or were overseas against foreigners), and it’s not through civil law. Not to mention he failed to clearly cite his cases, so it’s almost impossible to read the court’s opinion, or any apellant opinions, even in the case of the apparently inapplicable civil suit.
So yeah, international law (which is not mandatory authority for the US Supreme Court, as far as I know) may find waterboarding to be torture (although I haven’t seen case law stating it, I can believe it). American military law, which is different from civilian civil law and criminal law, may also find it to be torture (again, haven’t seen any cases, but for the sake of argument I can believe it). U.S. criminal law, however, has NOT denoted it as torture, nor has Civil law. Good try, however.
Uh, Joseph, you’re just plain wrong on international law. International law, when the US is a signatory to it, as it was in the case here - Geneva Conventions - is the highest law in the USA beneath the Constitution itself.
Typically, treaties are considered part of the Constitution in regards to the level at which they are enforced (as long as they don’t contradict with it). The interesting thing, however, is that as far as I know, US courts are not subject to following international case law. Why do you think Bush and Co. haven’t been indicted/arrested in a US court for violation of some treaty?
Joseph’s comment should be read and parsed closely by public relations professionals everywhere as a great exemplar of the redirection spin maneuver. The insertion of strawman claims that the original author never made, along with the whole if-I-don’t-understand-it-it-must-be-wrong logic make my head spin in inverted admiration. It nearly made me believe he knows more than the law professor from NYU. Hone your craft a little bit more, Joseph, and you’ll have me hooked!
Why dont you homos shut up and let the rest of us protect your sorry ases? Fuckin commie losers dont know torture when it hits you.
Joe, if you read the original article, it is a critical assumption of the author’s argument that what military tribunals and international courts have ruled is binding upon US courts to classify things in the same way. By pointing out that the cases are inapplicable and not binding on criminalizing waterboarding, it defeats his argument.
Law professors are subject to what courts rule just like everyone else.
Protect us from who, HH? From Canadians like Maher Arar, who never did anything to us, but were shipped out through extraordinary rendition to be tortured?
I wonder if Joseph (not Joe) even admits that torture took place at Abu Ghraib.
Why haven’t Bush and Co. been indicted/arrested? Because the Democrats in Congress are wimps, not because international law that the US is a signatory to does not apply to them.
Of course torture took place at Abu Ghraib. That was why soldiers were jailed for it.
Congress has nothing to do with Bush’s administration being indicted for torture by those who were waterboarded. Unless, of course, those people were all killed, they would all have standing to bring charges/court cases against his administration (not him, of course, since that’s congress’s job) if it actually was illegal.
But yeah, international court rulings seem to often be ignored by US courts.
“In the editorial, Judge Wallach cites the conviction in 1983 of a Texas sherrif and three deputy sheriffs who forced confessions out of criminal suspects using waterboarding as a form of torture during interrogations.”
This is the kind of lunacy we get from the Left. The sheriff wasn’t prosecuted for torturing (waterboarding) suspects. He was prosecuted for VIOLATING THE CIVIL RIGHTS of US CITIZENS by forcing a confession.
ANY effort to force a confession from somebody other than questioning should and would be prosecuted.
“Furthermore, Judge Wallach points out that, after World War II, the United States successfully convicted Japanese soldiers who used waterboarding torture as war criminals”
This is simply not true, they did not use waterboarding, they use water cure, something quite different.
“Judge Wallach even goes back as far as the Spanish-American War, when American soldiers were convicted in courts martial for torturing prisoners with waterboarding.”
Once again, not true, they used water cure, not waterboarding.
“Uh, Joseph, you’re just plain wrong on international law. International law, when the US is a signatory to it, as it was in the case here - Geneva Conventions”
The Geneva Convention does not apply to terrorists.
“V=Why haven’t Bush and Co. been indicted/arrested?”
Because they didn’t do anything illegal. Obama’s DOJ has already determined nothing in the interrogation memos was illegal.
“The Geneva Convention does not apply to terrorists”
The SCOTUS in Hamdan held that the Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda and to our detainees.
So, you’re wrong.
Obama’s DOJ says waterboarding is illegal. The interrogation memos say it’s legal. Guess who has the power to prosecute waterboarding? Hint: not Bush’s DOJ.