Waterboarding Redux

13 Responses to “Waterboarding Redux”

1. Doc Rampage Says:
   November 15th, 2007 at 2:43 am

   I wouldn’t support waterboarding as a punishment because it isn’t a punishment; it is an interrogation technique. Not all unpleasant experiences are appropriate for punishments, and I can’t think of any punishment based on fear or disgust or shame that sounds like a good idea (other than the shame of people finding out what you did).

2. Xrlq Says:
   November 15th, 2007 at 7:07 am

   I wouldn’t support waterboarding as a punishment because it isn’t a punishment; it is an interrogation technique.

   That distinction only makes sense if you start with the premise that waterboarding is torture, and therefore unconstitutional if applied as a punishment. Otherwise, it’s no argument at all; just because a coercive, inherently unpleasant technique hasn’t been used as a punishment does not mean it shouldn’t be. There’s plenty of precedent for torture as punishment over the centuries, else the framers wouldn’t have bothered with an Eighth Amendment to ban it. If waterboarding is torture, then it follows that it is “cruel and unusual,” and the only remaining question is whether it is being used as a punishment, or as something else (note the curious absence of any clear constitutional guidance when it comes to cruel and unusual interrogation techniques).

   Conversely, if waterboarding is not torture, what’s the fuss? Obviously it wouldn’t be appropriate for all crimes, or maybe even most, but in some cases it’s bound to fit the crime. Suppose the guy is a career bully, serving time for a sadistic crime against an innocent, vulnerable victim, who suffered fear, disgust, shame, and far worse? Why not give the guy a tiny dose of his own medicine as part of his debt to society? Or suppose you have an inmate convicted of whatever, who routinely misbehaves in prison, and nothing the guards to seems to work. Maybe a waterboarding or two will? It can’t hurt to try.

3. Jody Says:
   November 15th, 2007 at 9:15 am

   As I’ve said elsewhere, I don’t think waterboarding is torture, so I guess I should respond.

   I wouldn’t support waterboarding as a stand-alone punishment because a) it’s too harsh for small crimes (we don’t whip shoplifters), b) not harsh enough for big crimes (murder), and c) doesn’t serve two of the other stated goals of the penal system - keeping criminals off the streets and providing a mechanism for rehabilitation.

   As a piece of a broader punishment scheme (e.g., 30 sec of waterboarding + 1 month in the pokey), I can see it being used.(ignoring recidivism, corporal punishment should Pareto dominate incarceration as the criminal returns to productive society faster)

   Viz a viz more typical corporal punishments (e.g., whipping or spanking), I think waterboarding is inferior because:

   a) waterboarding is riskier (whip once or twice too often and there’s a couple extra marks and extra pain - waterboard a little too long, and the subject could die - note you can die from whipping, but that doesn’t generally happen by accident). This can be overcome by training, but the level of training required is obviously much higher.

   b) waterboarding is a “more discrete” solution and thus more likely to be suboptimal. I.e., I view waterboarding’s effect as a step function where for the first few secs it’s a “big whoop” sort of deal and then the possibility of drowning sets in and suddenly it is a big deal, but then a session can only continue so long before having to stop. Making it a more convex solution (e.g., sentencing to waterboarding for x seconds y times a day for z days), however would ruin a good portion of its effectiveness as you’ll know going in how long you’ll have to last. That being said, using this same metric waterboarding is preferable to more old-school corporal punishments such as chopping off hands. So waterboarding is a bit more discrete (and thus likely suboptimal) than the typical corporal punishment we use today, but better than other old-school corporal punishments.

   So in short, I would support waterboarding as a punishment technique, but only under certain conditions. This is more or less in line with my support of waterboarding as an interrogation technique.

   Finally, on a more meta note, I question the validity of the question. No specific technique can be deemed as inherently torturous. It has to be coupled with intent. Consider surgery or more imaginatively, suppose a nano bomb lodged itself under a fingernail and is going to go off in a few seconds. If someone then rips off your finger nail, it’s not torture. In this case we’re implicitly switching intents/contexts.

   Or in other words, a punishment can be cruel and unusual without being torture (or be torture without being unusual) and though I am not making this objection, it seems a reasonable distinction to draw and could be used as a rationale for opposing waterboarding without deeming it torture.

4. Doc Rampage Says:
   November 15th, 2007 at 12:25 pm

   Xrlq writes: “That distinction only makes sense if you start with the premise that waterboarding is torture, and therefore unconstitutional if applied as a punishment.”

   Er. That completely ignores the argument that follows the statement. No fair dropping your own reasons on my opinions. The level of cruelty has nothing to do with my argument, nor does the Constitution (I assumed that this was a moral question, not a legal one). As I said before, if I had a choice between a couple of minutes of waterboarding or a month in prison, I’d take the waterboarding without hesitation. Heck, if I had the choice of waterboarding or one day in prison and the day in prison came with a free cavity search, I’d probably take the waterboarding. I just don’t think waterboarding is cruel.

   However, as I said above in the part that you ignored, only certain kinds of unpleasant experiences should be used as punishments. This is not because the others are too cruel, but because the others don’t work as punishments. Punishments should do several things: act as a deterrent, make the offender regret his actions, make society and the victim feel that the scales have been balanced in some sense. I don’t think waterboarding would do any of those things (except that for the brief period of the waterboarding, the offender might regret his actions).

   If you want to punish someone, use physical pain or take something that they value (such as money or freedom). Those are the kinds of things that get someone’s attention. A couple of minutes of terror are only regretted for a couple of minutes.

5. McGehee Says:
   November 15th, 2007 at 3:47 pm

   I’m with Doc Rampage. By your logic, Xrlq, police interrogators shouldn’t be allowed to ask the same question multiple ways over a period of a few hours because, since it isn’t punishment, it must be torture.

6. Xrlq Says:
   November 15th, 2007 at 6:35 pm

   Huh? I never said that if something isn’t punishment it’s torture. Not sure where that came from.

7. gattsuru Says:
   November 15th, 2007 at 8:58 pm

   Jody, I think you’re either overestimating the risks inherent to waterboarding as detailed by the United State’s military and/or intelligence groups or underestimating the risks from whipping. Waterboarding is a little more complex than water cure, and part of the point is to prevent water getting to the lungs. The lash is not exactly safe; when used properly each throw of a whip is fairly comparable to a slash of a short knife or beating someone with a club (depending on thickness of the material and/or knots). Jewish law traditionally limited actions to 40 lashes, and even that could be dangerous to even healthy individuals.

   As to the questions, yes, I think waterboarding would be an acceptable punishment, and that can be made with or without distinctions on whether it is defined as torture. A death penalty with any late-term delays themselves are defined as torture, but the average Joe has very little problem proscribing it to a particularly vile criminal. Likewise, most of us would consider even a one in ten chance of being raped as pretty vile torture, but this doesn’t make anything but solitary imprisonment impossible.

   It might have problems with Constitutional muster; like most punishments it is inherently cruel, and unless it was proscribed rather generally it would also be considered unusual. I don’t particularly like these phrasings for the precise reason that they are so incredibly arbitrary, but it’d have to be figured out by the constitutional scholars.

   I don’t particularly think it would effective as such, though. The lash was considered effective as a punishment because it left lasting negative effects. Criminals were reminded of what happened last time they committed a crime. The point of waterboarding is to avoid this sorta result — it’s intended to be fast and have the person up and healthy immediately after. Someone who stole a car and was waterboarded will likely in retrospect consider the waterboarding to have been shorter and less painful than it really was.

   There are still some places that I think it might be a valid and effective punishment despite that, but because they’re relatively rare we’d find ourselves back at the unusual metric.

8. nk Says:
   November 15th, 2007 at 11:54 pm

   Any criminal penalty that does not incapacitate the criminal is both naive and gratuitously cruel. You lock him up for as long as you think he’s dangerous, or you kill him because he will always be too dangerous. All that other nonsense about punishment, deterrence and rehabilitation is disprove by a more than seventy percent recidivism rate.

9. Doc Rampage Says:
   November 16th, 2007 at 3:11 am

   nk, I don’t think the recidivism rate proves that prison is a poor way of punishment, not that we need to extend prison sentences. You catch a guy who robs a 7-eleven to pay for a drug habit and send him to prison where he gets to spend the next couple of years being dehumanized and associating primarily with professional criminals. He builds up social networks and obligations in criminal society and learns to despise the government that is treating him with such contempt. I think a 70% recidivism rate is surprisingly low under those circumstances.

10. Jody Says:
    November 16th, 2007 at 9:54 am

    Any criminal penalty hat does not incapacitate the criminal is both naive and gratuitously cruel

    As they do not incapcitate the criminal, are fines naive and gratuitously cruel?

    I think that in general, wherever you dole out fines now, corporal punishment would (generally) be better. See longer discussion here.

11. nk Says:
    November 16th, 2007 at 8:56 pm

    Well, they do decrease his financial capacity. So yes, they are incapacitating to a relatively small degree. Which is not to say that their real purpose is not to gin up government revenue. Just another form of taxation. Please do not construe anything I say here as unqualified approval for any part of our criminal and quasi-criminal penal system.

    As for corporal punishment, there are cases where the crime is so horrible that society must violently express its disapproval, otherwise it becomes an accomplice after the fact to the crime. But those are death penalty cases.

12. Firmalar Says:
    December 16th, 2007 at 8:12 am

    I wouldn’t support waterboarding as a punishment because it isn’t a punishment; it is an interrogation technique.

13. Xrlq Says:
    December 23rd, 2007 at 5:19 pm

    That’s not an argument. The reason it works so well as an interrogation technique is because it is extremely unpleasant. Use it once as a punishment, and voilà, it is a punishment.