My Email to Andy McCarthy

Dear Sir:

I agree with you on many issues including the tailored and highly specified use of water boarding and also the military based processing of enemy combatants, including determining their status, or some developed special federal court for same.

But a point of order if you will: I think water boarding is torture under American law.

To wit and for example:

18 U.S.C. § 2340

1. "torture" means 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;

2. "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

Isn’t repeatedly punching someone very hard for the lengths of time that water boarding takes, the severe infliction of physical pain and suffering? In fact, on the above language, hitting someone really hard just once is the severe infliction of physical pain or suffering.

On that basis, and again on the above language, I can’t see the torture of hard hitting—once or repeatedly—and the non torture of inducing the experience of drowning and dying wherein rational consciousness is overwhelmed and panic created, sheer animal survival mechanisms are induced. Distinguishing between hard hitting and the relative benignity of inducing the experience of death by drowning seems poor and obfuscating legalese.

Water boarding might also be the threat of imminent death.

Not for nothing, therefore, does the Army Field Manual forbid water boarding, if I have that ban right.

My larger point is that the water boarding spade be called the spade it is, and then the argument should proceed from there.

Sincerely,
Itzik Basman