Note the major loophole. The Al Qaeda leadership cannot be prosecuted since they lack standing as a recognized government. The definition does not include a list of prohibited acts, since people evade lists with new techniques. The definition is written broadly for that reason.
The ambiguity in the definition creates serious problems for any country at war. In order to defend itself, the country must have timely information and prisoners (particularly terrorists) frequently have the information they need. Despite what your mom told you, asking nicely will not get you what you need. On the other hand, rude interrogation may lead to an indictment for torture.
The use of waterboarding
The most controversial U.S. interrogation technique is waterboarding, where prisoners lay, head down, on an incline board, their face is covered by a towel and water is poured over the face and towel. The technique causes panic by simulating drowning. No permanent physical damage is done, although psychological trauma is very likely.
Waterboarding probably is torture, although others may disagree. It is clearly not as severe as beating prisoners, removing fingernails, using electrodes or burning body parts.
The Bush Administration says only two high value terrorist detainees have been subjected to waterboarding since the war on terror began. Khalid Sheikh Mohammed is one of the two terrorists. Mohammed is the Al Qaeda planner responsible for 9/11, and he personally beheaded Danny Pearl (the journalist) in Pakistan. When first captured, Mohammed refused to talk to U.S. interrogators until he spoke with his American lawyer. Imagine his surprise. The other terrorist subjected to waterboarding was Abu Zubaydah, a senior Al Qaeda operations planner.
Questionable interrogation techniques can be resolved by an administrative judicial process. A permanent independent panel of judges should be established in the Justice Department. The panel should review all interrogation techniques and provide regular reports to the appropriate congressional committees. The techniques themselves should be kept secret and prosecutions should not be made retroactive.
Innocent civilians are dying in Darfur and scores are murdered by terrorists in Iraq, Afghanistan and Israel. Tribal and political murder is widespread in the Congo, Kenya and other parts of Africa. In Muslim countries, women are subject to honor killing and punished for being raped. Strangely, some are obsessed with prosecuting George Bush for war crimes. They say nothing about Darfur, they stand aside as the Congo bleeds, and they turn their eyes as women die in Muslim countries. They appear to have more empathy for Khalid Sheikh Mohammed than for true victims like Danny Pearl. Using something as serious as war crimes to pursue a political agenda dishonors those who are true victims of war crimes.
Bob Martin is the Ewing T. Boles Professor of Economics at Centre College.
