Jon Stewart: But answer my question: Is waterboarding torture? Yes or no?
Cliff May: Defining torture is not easy. A simple legal definition is that it “shocks the conscience.” Cutting off Daniel Pearl’s head on videotape — that shocks my conscience. Sending a child out as a suicide bomber — that shocks my conscience. People jumping off the World Trade Towers because they’d rather die that way than by burning — that shocks my conscience. Khalid Sheikh Mohammed, mastermind of the 9/11 atrocities, gagging for a few minutes and, as a result, providing information that saves lives, then going back to his cell for dinner and a movie — no, my conscience is not shocked by that.
Are our consciences shocked by subjecting KSM to waterboarding? Apparently, this enhanced interrogation technique didn’t shock the consciences of members of Congress who were briefed on its planned use. Some of us need to re-play those tapes of cell phone calls by people trapped in the World Trade Towers.
The question keeps coming back to whether we extend all the rights of American citizens to captured terrorists. And the question also comes back to whether the terrorists are to be accorded all the protections of the Geneva Conventions.
Increasingly, our courts are saying terrorists are to be given constitutional protections, here, in Afghanistan, and at Gitmo. Geneva is another matter. This treaty binds nations to humane treatment of prisoners of war. In order to be counted as a prisoner of war, you must be in uniform (John McCain was, Nathan Hale was not), you must be subject to military discipline, and you must be taking part in a war conducted by competent authority.
The Geneva Convention also governs respect for medical treatment of prisoners and wounded soldiers. Take Al Qaeda in Iraq, for example. When one of their IEDs went off in 2003 near Baghdad and killed and wounded a number of American soldiers, a U.S. Army medical HUMVEE raced to the scene. Waiting for the medics to arrive, the terrorists set off a second IED. It had been planted there specifically to target the medical help. Inside the HUMVEE, an American female nurse was burned beyond recognition.
The purpose of the Geneva Convention was to give warring nations a strong, positive incentive to behave according to international norms and not to engage in conduct that “shocks the conscience.” When we give Al Qaeda or Taliban terrorists prisoner of war status and Geneva Convention coverage—without demanding anything of them in return—we abandon one of the great achievements of the Geneva Convention.
Of course, some humans are not accorded human rights. Our courts have seen to that. President Obama named Justice Stephen Breyer as his ideal jurist. In 2000, Justice Breyer wrote the majority opinion in Carhart v. Stenberg. That was the case in which the U.S. Supreme Court struck down as unconstitutional Nebraska’s law against partial-birth abortion. Justice Breyer’s opinion is worth quoting at length. He described various techniques of late-term abortion that do not shock his conscience. Nor do these techniques--unlike waterboarding, unlike slapping, unlike sleep deprivation--shock President Obama’s conscience, or the consciences of our liberal rulers.
During a pregnancy’s second trimester (12 to 24 weeks), the most common abortion procedure is “dilation and evacuation” (D&E), which involves dilation of the cervix, removal of at least some fetal tissue using nonvacuum surgical instruments, and (after the 15th week) the potential need for instrumental dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus. When such dismemberment is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. The risks of mortality and complication that accompany D&E are significantly lower than those accompanying induced labor procedures (the next safest mid-second-trimester procedures). A variation of D&E, known as “intact D&E,” is used after 16 weeks. It involves removing the fetus from the uterus through the cervix “intact,” i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. The feet-first method is known as “dilation and extraction” (D&X). D&X is ordinarily associated with the term “partial birth abortion.”
A little translation may be required: “at least some fetal tissue” translates to the unborn child’s arm, a leg, or maybe her head. “Dismemberment of the fetus with nonvaccuum surgical instruments” means cutting off her arms or legs with razor-sharp implements while the child, still alive, is capable of feeling excruciating pain.
Rest assured, this is not torture. It doesn’t meet the legal definition of torture because under the rule of Roe v. Wade, the unborn child does not meet the legal definition of a person.
Terrorists were once defined—like pirates and slave traders—as hostis humani generis, enemies of all mankind. As such, they received no due process rights. They had no right to counsel. They received no protections under international agreements. When seized on the high seas by the Royal Navy, they could be promptly hanged upon determination that they were engaged in the proscribed activities.
It would have shocked the consciences of our ancestors, however, to dismember even such low characters as pirates, to cut off their arms and legs, and to let them bleed profusely to death. The most inhuman of humans in the nineteenth century could not have been treated as the least of humans are treated in our enlightened United States, by order of the U.S. Supreme Court.
Our new president abhors torture, unless it is the torture of the unborn. In that case, it is not torture at all, but simply inducing fetal demise. This great international uproar over what is and is not torture has been generated because of the treatment of three known mass murderers. The slaughter of innocents in their thousands elicits no international outrage. This is part of what Justice Breyer sees as evolving international standards of decency.
In my opinion, the Obama Administration’s abortion agenda is indeed a crime against humanity.
This weekend, President Obama will receive an honorary Doctor of Laws from the University of Notre Dame. There, he will be honored, among other things, for his brave stand against torture. He has appointed Kathleen Sebelius to head our nation’s health system. She is a disciple of the most notorious late-term abortionist in the county, a dismemberer, by his own count, of 60,000 fetuses. The President and Secretary Sebelius want to force us all to pay for abortion-on-demand. They want to force doctors and nurses to take part in killing unborn children. They will doubtless tell us our consciences should not be shocked. They’re only inducing fetal demise. Heaven help us all. And Heaven help Notre Dame.