Academic

Waterboarding, foreigners, and Americans abroad

By Tung Yin

The other morning, I was listening to a discussion on "On Point" on NPR about the release of the formerly classified torture memos, and one of the program guests -- I think it was George Washington law prof Jonathan Turley -- asserted that if another country had treated Americans the way we treated Khalid Sheikh Mohammed and Abu Zubaydah (i.e., allegedly waterboarding them a combined 200+ times), we would be outraged.

I'm not so sure.

Just to be clear, I'm not intending in this blog post to defend how we treated those two al Qaeda members, nor am I intending to argue that waterboarding is not torture.  I'm simply exploring the counterfactual offered above.

Suppose that a foreign country captured two American citizens that it claimed had planned and executed a terrorist attack that killed more than 3000 persons.  And then for interrogation or retributive purposes, that country had subjected the two Americans to 200 instances of waterboarding.  Would we jump so fast to defend our fellow citizens?

Maybe.  But the closest analogy I can think of is the 1994 caning punishment inflicted on American teenager Michael Fay in Singapore.  Fay had been charged with vandalizing a number of vehicles, and after pleading guilty, he was sentenced to six caning strokes across the butt.  President Clinton asked Singapore officials for clemency of some sort, but all the Singapore government would do was reduce it to four caning strokes.  Although President Clinton decried the punishment as extreme, a significant percentage of Americans, as AsiaWeek reported at the time:

But according to a string of polls, Fay's caning sentence struck a chord in the U.S. Many Americans fed up with rising crime in their cities actually supported the tough punishment. Singapore's embassy in Washington said that the mail it had received was overwhelmingly approving of the tough sentence. And a radio call-in survey in Fay's hometown of Dayton, Ohio, was strongly pro-caning.

Of coure, caning is not the same as waterboarding, and Fay did receive due process in the sense of a judicial proceeding, so the two situations aren't exactly alike.  However, my point is that many Americans appeared to see Fay as getting what he deserved according to the laws of the country in which he was then residing.  In the same way, I'm not sure that all Americans would protest if another country were to punish Americans for pretty heinous acts in ways that would offend our laws and constitution.

Full post as published by The Yin Blog on April 23, 2009 (boomark / email).