June 10, 2005

Not Torture, But Still Illegal

by PG

Prof. Eugene Volokh considers some tactics reportedly used at Guantanamo Bay and says,

Giving porn as a reward hardly seems like a Geneva Convention violation; taking off one's own clothes doesn't seem particularly problematic, either, though it may well be embarrassing to the prisoners; rubbing up against to people may be more problematic; I don't quite know what to think about the fake blood. I also realize that they may have been taking advantage of the prisoners' sense of modesty, and of their religious taboos. One can debate to what extent this is proper, effective, or good policy given how it might look to outsiders.

But surely "sexual torture" is a pretty substantial exaggeration of what the article describes, even as to the most potentially troubling items.

Aside from being potentially improper, ineffective and bad policy, I'm fairly sure that rubbing up against people while stripped down to one's underwear would be illegal if done in the U.S., either to a regular person or to a prisoner in our state and federal system. Certainly if a sane man walked up to me on the subway, stripped down to his underwear and started rubbing himself against me, I would call the police and have him prosecuted. If guards in prisons covered by the 8th Amendment started stripping down and rubbing themselves against inmates, that seems likely to be covered by "unusual punishment." Frottage is a form of sexual assault.

Also, why all the peculiar* sexuality in the treatment of prisoners? Can any of this possibly be legitimate means of getting information, or is this just more Abu Ghraib, soldiers need to "blow some steam off," type of behavior that we can expect to see condemned and punished?

* Not a work-safe link.

June 10, 2005 11:59 PM | TrackBack

I agree with you that there are possible illegal elements involved in the interrogation techniques, but I think Volokh was trying to differentiate between an illegal act and "torture".

As to why there is "peculiar sexuality" in the treatment of prisoners, I think it has been established that it does indeed work against the particular type of people we are holding.

Most of the people we are holding are fundamentalists even if they are not terrorists. These fundamental religious beliefs make it unbearable to be put in these types of situations. I believe that I read somewhere that some fundamentalists believe that they are cut off from God if they are unclean.

So making a prisoner unclean, (fake blood, pornography, rubbing), keeps the prisoner from praying to God. This could certainly make someone neurotic who is used to talking to God at least 5 times a day.

Posted by: Sean Sirrine at June 11, 2005 01:42 AM

Can't torture be indirect and not limited to direct infliction of serious pain? Whether illegal or torture, is this appropriate for a Judeo-Christian nation? And if the enemy performed comparably with American fundamentalists in captivity, would that be perceived as merely illegal rather than torture?

By the way, PG, what would you do if that frottage-man on the subway were insane?

Posted by: Shag from Brookline at June 11, 2005 06:50 AM

And if the enemy performed comparably with American fundamentalists in captivity, would that be perceived as merely illegal rather than torture?

I am not sure that there are any comparable beliefs for the average run of Christian fundamentalist, because their beliefs are not very externals-oriented; lacking even the Catholic lean toward a connection between faith, good works and sacraments (such as confession), Christian fundamentalists are all about one's internal relationship with Jesus as Savior. So while symbols of the religion in revolting places (Christ in piss), or even homosexual rape of prisoners, would be angering or damaging to them, it wouldn't detract from their religion itself. Even a Jehovah's Witness who believes he has been given a blood transfusion would be deeply distressed, but unlikely to believe that he has lost his relationship with God unless he accepted the transfusion voluntarily. In short, I don't know of any way that one could make a Christian "unclean" unless you actually got her to agree to a violation of her faith.

I would be curious to know, is there anything in Islam that would support a belief that one has been permanently cut off from God through non-voluntary action, such as another person's making one unclean?

If frottage-man were insane, I'd still call for police but would press for his treatment in an appropriate facility and not for his prosecution.

Posted by: PG at June 11, 2005 09:59 AM

Tomorrow's New York Times Magazine has already been posted online, and Joseph Lelyveld has written an article titled "Interrogating Ourselves." http://www.nytimes.com/2005/06/12/magazine/12TORTURE.html?pagewanted=all

It makes a good followup to PG's post....

Posted by: Jed Sorokin-Altmann at June 11, 2005 10:54 PM

Some of these comments sound like a bunch of bullies in a locker room trading quasi-violent remarks about the nearest females, the sort of remarks that sound like something physically offensive is being done even if all that happens is words.
Is it not true that in your American civil law a person may be successfully sued for large damages on the basis that a female perceived a remark as "harassment" even if the offending party did not and had no such intention, and even if they were not aware the female who complains was nearby; that one instance can be taken as a pattern; that loss of employment will be the MINIMUM penalty;
that ordinary words may be received as harmful due to a previously unknown condition of the female concerned (like a person who has been assaulted in the past); that in such cases it may eventuate that the person complained of may never be given a change to confront their accuser.

Of course, that is civil law. But if you will hedge about your individual rights in that context how can you possibly fail to shout with rage when you hear of the disgusting and grossly humiliating actions of the "interrogators" in your prison. Was not the one on the Island of Cuba selected as a place where there was , so to speak, no law. Ask prisoners in your ordinary prisons if any of the actions described could be done by guards without the most serious consequences.
If you Americans do not show the outrage these practices deserve, and hold accountable the general officers who have encouraged them you will find yourselves, soon enought, with a bully over you, his boot on your throat.

Posted by: garhane at June 23, 2005 06:43 PM
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