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Wednesday, December 06, 2006

Torture, the Belfast Indictment, and an Interesting Question

Earlier today, Bobby Chesney posted the surprising indictment in United States v. Belfast to the National Security Law listserve. Not to steal his thunder, but I thought I'd post it (and a little bit about it) here.

Quoting from Bobby's e-mail:

In this indictment, federal prosecutors have brought charges under 18 USC 2340A – the Torture Statute – for the first time.  The charges concern a brutal interrogation that took place in Liberia, in which the defendant and other Liberian security personnel allegedly poured boiling water on the victim, applied a hot iron, shocked the victim’s genitals, applied salt to wounds, and otherwise inflicted “sever physical pain or suffering.”

There is a lot that is interesting here, but one point, in particular, stood out: 2340A prohibits "torture," which 18 U.S.C. [sec.] 2340 defines as:

an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control . . . .

[The statute also defines "severe mental pain or suffering.] So, does this mean that the government will have to advance a theory of what, precisely, is "torture" under U.S. law?  If so, wouldn't that open the door for the defense to invoke every single argument the Bush Administration has ever made about what torture isn't?

Don't get me wrong -- I'm all for broad accountability for human rights abuses, especially those along the lines detailed in the Belfast indictment. But for an Administration that has tried so hard to avoid a meaningful national debate over what is and what is not "torture," this case strikes me as likely to force the issue in very direct, and perhaps very powerful, ways.

Posted by Steve Vladeck on December 6, 2006 at 05:46 PM in Criminal Law, Current Affairs, Steve Vladeck | Permalink

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Comments

I agree with Bart. I appreciate the enormous physical and mental suffering to which our armed forces subject themselves in training, but it simply is apples and oranges to say that because that isn't torture, neither is what Belfast is alleged to have done (or, for that matter, what some of our own troops have done at Abu Ghraib, Guantanamo, and elsewhere). Indeed, if we were to define torture by reference to what people will voluntarily subject themselves to (see, e.g., David Blaine), nothing will ever constitute torture.

Posted by: Steve Vladeck | Dec 7, 2006 10:42:37 PM

With regard to the last poster, it's totally different to be in a voluntary situation, surrounded by your colleagues and know more or less what's going to happen to you then to be in a strange place surrounded by people from an alien culture, talking in an alien language, who do god knows what to you. I'm sure that the training that SEALs and other elite special forces troops go through is rigorous. It is not torture.

Posted by: Bart Motes | Dec 7, 2006 5:56:16 PM

This post is very unfair. The administration has tackled the torture debate head on - it is its critics that have refused to attempt to flesh out the term "torture." The critics have tarred any debate about what constitutes torture as beneath the pale. The Yoo memo attempted to give some specificity to the term, and critics have blasted it but refused to provide their own definition. Also, note that all the acts here would have been prohibited under the Administration's definitions. This is real torture here, unlike what has been going on at Gitmo - after all, what occurs at Gitmo is no harsher than what we make our own troops undergo in training (including waterboarding, sleep deprivation and hypothermia). Have we become so soft and disconnected from reality that we are unwilling to treat enemy combatanats as harshly as our own troops?
See what the Navy Seals undergo: http://www.navyseals.com/community/navyseals/training_buds.cfm

Drown Proofing - came into being after an tragic accident in the late 60s when a Team member whose hands and feet were tied to simulate being a prisoneer was being transported in a small Vietnamese-style sampan. The boat rocked, tipped, filled with water, and the occupants were dumped overboard. The water was only a few feet deep (very similar to the canals and waterways in Vietnam), but the man whose hands and feet were bound was tragically drowned. It was determined that this situation should NEVER be repeated, and the concept of drownproofing was created as a solution. It was folded into the existing pool training that BUD/S students were undergoing, including rescue swimming, lifesaving, etc." (Thanks to SEAL Steve Robinson for this info) The training is very valuable in building confidence and relaxation skills in the water (also the small chance that it may come in handy some day. The evolution begins with students tying their feet at the ankles and hands behind your backs at the wrist then entering the pool for some bobbing followed by a 50 meter swim.

Another fun filled event during first phase is surf torture. Torture? You bet it is. It all stems from the theory that a frogman must be intimately familiar with the water. During BUD/S training, the student is wet and sandy for most of the six months. Even the classroom sessions often include a trip or two to the surf zone to facilitate an alert posture during the class. Periodically the instructors include a little "cold water conditioning" in the training schedule - hence the term "surf torture". Basically the entire class must wade into the surf zone to their waste line, then sit down with arms linked. Mind you that the water in San Diego never gets above 68 during summer months and 58 during winter.


Soon the insipid cold sucks all of your body's warmth and the whole class shivers in unison as the waves crash over your heads. The plan calls for submersion to the brink of hypothermia, then to pull you out for some calisthenics to warm up - then back in the drink for some more conditioning. The "training session" lasts for about an hour. It's been shown to be a very effective way to teach a prospective SEAL to mentally fend off the effects of hypothermia - which could likely save your life in the future.


Oh yes - almost frog-ot to discuss HELL WEEK! My favorite week of training during BUD/S. It occurs the sixth week of First Phase, after about 30% of the class has already rung out. Hell Week is the real make or break test during first phase - and a defining moment in the lives and careers of most SEALs. Five days and five nights of non-stop training - with a total cumulative sleep time of about 2 hours! The class is broken into boat crews, which run everywhere with their IBS (Inflatable Boat-Small) on their heads.

Posted by: NomDeDroit | Dec 7, 2006 4:39:22 PM

Note that one might, if cynically inclined, see this as an opportunity for the Administration to push a very narrow theory of what constitutes "torture" in essentially a non-adversarial setting. If the prosecution here advances a narrow theory, Belfast is unlikely to argue that the correct interpretation should be broader. (The only reason I could see for him to try would be to claim that the staute is unconstitutionally broad, which sounds like a loser on its face.) The result might be to get a court to rule that the statute has a narrow meaning, because the litigation would be, in effect, collusive in not considering broader interpretations.

Posted by: James Grimmelmann | Dec 7, 2006 4:04:47 PM

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