The Crime of Waterboarding....

(Thank you Charles Gittings for pullling this together... click on the title to go to Charly's blog...)

NOTE ON WATERBOARDING
=====================

So there's an Andrew McCarthy article in the 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==


Now 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 statues (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)

There really isn't much room for doubt about several of those, and I don't believe there's any serious question water-boarding is in fact torture either.
Anyone who thinks otherwise should read Evan Wallach's authoritative legal study of the subject:

Evan J. Wallach, DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S.
COURTS, 45 Colum. J. Transnat'l L. 468 (2007), draft version available at:

http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf

But the kicker here is that 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, the kicker is 18 USC § 113, which 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. 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?

There's no way that water-boarding, sleep deprivation, and forcibly induced stress don't rise to that level, hence the question of "is or isn't it torture?" is irrelevant to the question of "is or isn't it a crime?" It clearly WAS a crime, because it clearly WAS an assault even if it wasn't torture.

And I 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.