THE CRIME OF WATERBOARDING ========================== 2007.12.21 (PEGC) There's an Andrew McCarthy article in NRO that pretty much sums up the talking points of the apologists these daze in the wake of the CIA's admission that it destroyed video and audio tapes of detainees being tortured by water-boarding and other means.... "Regardless of what the revisionist Left is now saying, the only bright-line limit on the treatment of alien enemy combatants held outside the United States in 2002 was the federal law against torture. The United States did not outlaw cruel, inhuman and degrading treatment when it ratified the international anti- torture treaty in 1994 -- it was not until 2005 that such treatment overseas was outlawed, and even then only ambiguously, no matter what Senators John McCain, Patrick Leahy, and others now claim." Andrew McCarthy, THE CIA INTERROGATION TAPES, NRO (2007.12.21). http://article.nationalreview.com/?q=NmQ5ZWVlNDUwMGU2NTNkYWVkNTk1MGUxNDIyYmQ5Yzg=&w=Mg== And I'd just like to point out to one and all, especially those of you who are journalists, that what Mr. McCarthy claims not only isn't true, it's obviously untrue to the degree of certainty. To wit. . . By my tally, these interrogations and the subsequent destruction of the tapes involved possible violations of the following statutes (note that this discussion excludes Title 10 USC Ch. 47, which is the Uniform Code of Military Justice): 18 USC § 371 (Conspiracy to commit offense) 18 USC § 1201 (Kidnapping) 18 USC § 1505 (Obstruction of proceedings before departments, agencies, and committees) 18 USC § 1509 (Obstruction of court orders) 18 USC § 1512 (Tampering with a witness, victim, or an informant) 18 USC § 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy) 18 USC §§ 2340-2340B (Torture) 18 USC § 2441 (War crimes) Now there really isn't much room for doubt about several of those, and I don't believe there is any serious question that water-boarding is in fact torture either. Anyone who thinks otherwise should read Evan Wallach's authoritative legal study of the topic: Evan J. Wallach, DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS, 45 Colum. J. Transnat'l L. 468 (2007), available at: http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf But the kicker here is it doesn't really matter in regard to the destruction of the tapes, because even if it wasn't torture and didn't also violate one or more of the other statutes I've mentioned, 18 USC § 113 covers assaults within the special maritime and territorial jurisdiction as defined by 18 USC § 7. That statute includes a very bright line indeed, simple assault. Water-boarding, sleep deprivation, and forcibly induced stress clearly rise to that level. Personally, I think the only way water-boarding wouldn't "shock the conscience" is if someone didn't have one, but set that aside -- How could water-boarding not be AT LEAST simple assault, if not one of the more aggravated forms? It clearly is, hence the question of "is or isn't it torture?" is irrelevant to the question of "is or isn't it a crime?" Clearly, it was a crime, because it clearly was an assault, and that clearly was a crime in 2002, just as it is now. And I really, really wish someone would plaster that simple fact on the front pages of the NY Times, the Washington Post, and every other newspaper in the country RIGHT NOW. These folks aren't just criminals, they are sloppy, wanton criminals. Regards, Charly Notes: * 18 USC § 7 (special maritime and territorial jurisdiction defined): http://www.law.cornell.edu/uscode/18/usc_sec_18_00000007----000-.html * 18 USC § 113 (assault within special maritime and territorial jurisdiction): http://www.law.cornell.edu/uscode/18/usc_sec_18_00000113----000-.html * For an analysis of simple assault pursuant to 18 USC § 113, see United States v. Lewellyn, 481 F.3d 695 (CA9 2007), cert. denied, 2007 U.S. Lexis 9765 (2007), available at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D3D89AB4BEC32FDC8825729700475B64/$file/0630185.pdf * 18 USC § 1512(a)(2)(C) states: "Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to * * * hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense * * * shall be punished as provided in [18 USC § 1512(a)(3)]." * * * PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC) http://www.pegc.us Charles B. Gittings Jr. Fort Bragg, California cbgittingsyahoo.com +1-707-964-2151