But something's changed. Republicans, or most of 'em you hear from these days, seem to take the view that some of these rights are alienated in the case of humans who are also alleged terrorists.
Could you Republicans please explain to me how this works, logically? In particular, how does your position on torture square with how we, as a nation, have tended to approach torture in the last century or so?
About five months ago, Evan Wallach, a judge and a former JAG wrote a piece for the Washington Post entitled “Waterboarding Used to Be a Crime." There, he notes that the media usually describe waterboarding as “simulated drowning.” According to Wallach,
That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is,
the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.
Wallach notes that the U.S. convicted several Japanese soldiers for using this technique on prisoners of war. Evidently, it was called the “water cure”:
After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.
As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.
Wallach describes more recent judicial events in the U.S., including a civil action
brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."
Then there’s this case:
In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights…. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."
Wallach notes that the “four defendants were convicted, and the sheriff was sentenced to 10 years in prison.”
OK, Mr. and Mrs. Republican. Were we wrong in embracing this series of judgments? Were we wrong to suppose that waterboarding is torture and that it is a violation of human or natural rights? Were we wrong in embracing a regard for persons, all persons, such that there are things that should not be done to them, including torture?
If not, please explain how this all works.
There is a fascinating discussion of torture in the Stanford Encyclopedia of Philosophy: The Moral Justification for Legalised and Institutionalised Torture . It ends with:
So torture warrants are highly undesirable, indeed a threat to liberal democratic institutions. Moreover, torture warrants are unnecessary. As has been argued above, there may well be one-off emergencies in which the use of torture is morally justifiable. In those cases, the relevant public officials must bite the bullet and do what is morally required, e.g. torture the terrorist to save thousands of innocent people. In such an emergency, the military or police officers involved will need to break the law on this one occasion. But in itself this is a small price to pay; and a price the police, the military and the politicians have shown themselves only too willing to pay in situations that are far from emergencies.
One final matter. What should be done to the military officer, police officer, or other public official who tortures the terrorist if — after saving the city — their crime is discovered? Quite clearly he (or she) should resign or be dismissed from their position; public institutions cannot suffer among their ranks those who commit serious crimes. Further, the public official in question must be tried, convicted, and sentenced for committing the crime of torture. Obviously, there are (to say the least) mitigating circumstances, and the sentence should be commuted to, say, one day in prison. Would public officials be prepared to act to save thousands of innocent lives, if they knew they might lose their job and/or suffer some minor punishment? Presumably many would. But if not, is it desirable to set up a legalised torture chamber and put these people in charge of it?
This kind of position will be familiar to philosophers who have long discussed the so-called problem of "dirty hands." It focuses on extraordinary situations in which an indecent act seems in some sense to become morally necessary. To suppose that such events can occur and that, when they occur, persons in authority should do the indecent thing--with appropriate regret--is interesting and plausible.
Is this what Republicans are talking about in the case of torture in our "war on terror"? That would at least make some kind of sense. It could bring coherence where, prima facie, there is none.
But it means that the people who ordered the torture must be convicted and punished. They must accept this as necessary.
For an enlightening discussion of the (complex and controversial) concept of rights, see the article in the Stanford Encyclopedia of Philosophy.