Henry Farrell writes:
Clive Crook on Torture: A Second Try — Crooked Timber: my first attempt to critique Clive Crook on torture seems to have ended rather badly, here’s a second go. NB that this post is not an obviation of the apology below for my initial misunderstanding and mischaracterization of his position...
And the apology:
Torture, Schmorture — Crooked Timber: I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him.... As I understand Crook’s position – and I am open to correction here, it is as follows. (1) That waterboarding is unequivocally torture...
I say: not so fast. I don't think Henry misread. I think that either Clive miswrote or Clive is now backpedaling.
From generally accepted knowledge I posit:
(a) Common Article 3 of the Geneva Convention prohibits torture
(b) The United States has made violating Common Article 3 a crime.
And from this I deduce:
(c) If waterboarding is torture, then it is a crime.
And its contrapositive:
(d) If waterboarding is not a crime, then it is not torture.
Clive Crook wrote:
To many critics of the Bush administration, it is all so simple: waterboarding is torture, and thus both impossible to justify and illegal.... [T]his already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal.... Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to...
And this seems to me to be, at least:
(e) Clive Crook doubts that waterboarding is a crime.
From which I deduce:
(f) Clive Crook doubts that waterboarding is torture.
It seems to me that if Crook's position was what Farrell now maintains it is, Crook would have written: "Congress made waterboarding a crime when it criminalized torture, but it should now criminalize waterboarding explicitly because some falsely claim it is not torture." Instead, Crook wrote: "Congress should make waterboarding a crime... it has had many chances... to do so. The fact is, it has chosen not to..."