Is Waterboarding Torture?

I recently attended a presentation regarding the appropriateness of torture. The speaker was anti-torture. During the event, a questioner suggested that the speaker wrongly presumed that waterboarding constitutes torture. Does it?

To answer, I would like to draw a comparison to the common law system. See, under our court system, matters are decided incrementally. When the system is functioning properly, courts stray no further beyond the facts at hand than is necessary to resolve the controversy. There is an important rationale behind this system: courts can not foresee and plan for the myriad of circumstances to which a wide-ranging rule would be applied. Thus, to avoid setting poorly reasoned, binding precedent, courts generally resolve matters on narrow grounds. That way, the common law is created slowly and deliberately. Judges look to the lessons learned in previous controversies, and are therefore less likely to make a mistake.

What does this tell us about the question presented -- whether waterboarding is torture? Well, if the "case" has already been decided and constitutes well-settled and deeply entrenched precedent, then we should avoid "overruling the case," i.e., backtracking on the historical status of waterboarding.

Imagine my surprise this afternoon when I discovered that its status as torture is, well, less than clear. For much of modern history, it was considered a standard interrogation technique! In fact, it is not until approx 1800 that peoples began to consider it torture. What's worse, it was used by various countries -- including Japan, France, Britain, and, yes, America -- throughout the 20th century. Source. And we of course know that America used the technique in the wake of 9/11.

Now, this history does not mean that waterboarding is not torture. But, it does mean that the frequent claim that waterboarding is "clearly torture" is probably false. In other words, this "case" has not yet been decided, and Americans are, in a sense, faced with a case of first impression.

Do I support waterboarding? Absolutely not. I am quite opposed to it. I make this post mostly out of genuine surprise -- I intended to make this post an attack on waterboarding, and I was shocked to discover the practice's history.