Yes, we do indeed hear how inflicting a feeling of drowning without the fact of it is 'torture'! Indeed, the triumph of the stupidity happens when such a thing is put forward as what is done is to give a feeling of drowning, not the actual drowning in and of itself. Are we to castigate and litigate upon those sanctioned to do such things for the professed reason of saving their fellow countrymen from harm and, indeed, their Nation? If we are a Nation of laws then we must also recognize that we operate from the Law of Nations first and foremost so we can understand the context of our laws amongst Nations.
This would seem straightforward, but it isn't taught in school anymore, and so we have the mighty bellowing from on-high about things that are without reason, without basis and, indeed, implore us to be so civilized as to be decadent in our response to those seeking to exterminate our lives.
Thus to understand what it is that we are to do against those that seek to make war upon us that are not any Nation and have no sanction from any Nation, we must turn to the Law of Nations, first, to understand just what they are. Only after we know that can we then proceed to see if our laws are in accord with the Law of Nations and that those doing this feeling of drowning activity to those attacking us are doing something unworthy or noble. To do that I now turn to Book III of Law of Nations:
§ 34. Na-
Nations that are always ready to take up arms on any prospect of advantage, are lawless robbers: but those who seem to delight in the ravages of war, who spread it on all sides, without reasons or pretexts, and even without any other motive than their own ferocity, are monsters, unworthy the name of men. They should be considered as enemies to the human race, in the same manner as, in civil society, professed assassins and incendiaries are guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. All nations have a right to join in a confederacy for the purpose of punishing and even exterminating those savage nations. Such were several German tribes mentioned by Tacitus — such those barbarians who destroyed the Roman empire: nor was it till long after their conversion to Christianity that this ferocity wore off. Such have been the Turks and other Tartars — Genghis Khan, Timur Bec or Tamerlane, who, like Attila, were scourges employed by the wrath of Heaven, and who made war only for the pleasure of making it. Such are, in polished ages and among the most civilized nations, those supposed heroes, whose supreme delight is a battle, and who make war from inclination purely, and not from love to their country.
This section is from the part on warfare and who makes it and how and I am using boldface to highlight passages.
What we see is that terrorists do, indeed, fit into the category of those who have delight in war for the reason that they want to world to follow their beliefs and put them into the top position over mankind. These are monsters, ravagers and they become a public enemy (true enemies of the public beyond mere law breaking), and also wage war upon all Nations. This is the point that vexes so many: policing and warmaking are not 'either/or' against these, but BOTH and to the extreme. We are to end their exploits, these monsters in human form, even unto exterminating all who follow them to the last man. We do not do that in fury or hatred, but to bring justice to them in the only way they know. We do not profess blood lust to kill a rat or a mad dog. In fact in the latter if it was a beloved animal gone mad, we do it in grieving that one being that we loved had gone sick by the way of nature and needed to be removed so as not to harm us or our fellow man. In sorrow we kill, but that does not stop us from doing the deed as it is necessary. It is Just.
Why do we distinguish between those who make war that are not Nations and those who are Nations? Again in Book III:
§ 67. It is to be distinguished from informal and unlawful war.
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.
§ 68. Grounds of this distinction.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
As we have seen, plunder is but one object of illegitimate war and it can be waged for no other reason that those doing so enjoy it. From that these actions do not gain the opprobrium legitimate war making, but are forms of predation carried out by monsters.
Warfare is a liberty and has a positive and negative aspect to it, but the liberty itself is granted to us at birth: it comes from the Law of Nature and is never separated from us. In society to create the State and then the Nation, we invest our negative liberty of warfare, that is offensive warfare for the society and even the positive social liberty of defensive warfare, to the State and Nation. We do that so that we are not forever plagued by warfare that others drag us into within society. With that said we retain the positive aspect of warfare, that of personal defense, defense of family and defense of property for ourselves and can even reclaim defense of society with our fellow citizens when neither State nor Nation respond to invasion or even simple danger that puts society at risk. This, then, civilizes warfare as we have removed it from the purely personal realm for offensive means and societal defense, although not entirely for the latter as it reverts back to us when with our fellow man and our higher social organs do not respond to attacks.
When we are attacked by those who reclaim all liberty of warfare to themselves and even create an organization to do this, they are using this as a form of depredation to work their will. They have no right to do so, and thus no cause put forward by them is Just. When we are attacked by such individuals, all laws and rules of warfare and society may be placed aside as we are to bring these monsters down with extreme prejudice against them for taking these acts against us. Things which we would look aghast on in normal warfare or in the warm bosom of a Nation at peace can be done when we are attacked by predatory men. None think the worse of us to defend ourselves and ensure that we are defended to the utmost.
It is here that the problems of those citing waterboarding as 'torture' run afoul of the real world: we have been attacked by predatory men, continue to be attacked by them and are exerting extreme prejudice to bring them down as they have attacked us to kill us with no warrant, no sanction and for no Just reason at all. In reclaiming their full liberty of warfare, they have become human predators, monsters of unreason. Any that do so, no matter how sweet and kind their words, betray themselves by their actions which demonstrate they are the enemy of all mankind. They seek to overturn all law, all justice, all resistance and enslave us all to their will. It does not matter if they have the direct means to do so, their demonstration of limited means shows they are trying to get better means as, before that, they had NONE.
Thus we follow in Book III:
§ 69. Who is an enemy.(147)
THE enemy is he with whom a nation is at open war. The Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our language affords but one word for these two classes of persons, who ought, nevertheless to be carefully distinguished. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befalls us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancour and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy.
Private enemies are inimical to us: they hate us and attack us with no just cause.
When it is a Nation, that is unjust and unlawful war. When it is an individual waging war on their own, it is the depredation done by a predator.
These are not pleasant terms to use as we are so used to our fellow man understanding what law is and why it is important, and that respect for these things we create called 'Nations' means that we can set aside some negative liberties to be held by that creation to protect us so that we do not descend into becoming lawless creatures. Indeed, Thomas Jefferson with editing help by Ben Franklin expressed, clearly, how we build up these things, and they clearly cite what the Law of Nature is with respect to us:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
There, clearly stated, is that the powers of earth are to be used as a gift derived from the Laws of Nature and of Nature's God, to which we are all entitled. The laws of earth are something we create from the Laws of Nature, and thus, in that deriving, we create something for ourselves in this earthly realm.
Those that rend the laws of earth asunder to return to the Laws of Nature and of Nature's God are moving back from this creation, therefore, and no longer a part of this community we create. These men recognize that within the very next part where they speak of this.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
We are all, indeed, endowed with the gifts of the Laws of Nature in FULL. And we use those gifts to pursue life, liberty and happiness for ourselves. This is a self-evident truth that the pursuit of these things is a result of us being natural beings of the earth. But we cannot do that as natural man living in a State of Nature, for there is only the Law of Nature there which is the seeking for oneself these things, and not with anyone else. When we return to that state of being that is where we go, to give up the laws of earth we only have those gifts given to all mankind, that of Nature. We cannot secure these gifts alone: to create security we must do something.
That is spoken of next:
--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
We create something beyond ourselves, and join with our fellow man in doing that. To share a culture, history and set of agreed upon ideals we become a people and we create something to help govern us so as to secure our liberties and that is government. Further, to protect our society and ourselves, a government must derive its just powers from the consent of the governed. One of these things we do to create this sovereign power amongst us, for it is ours to create as the laws of earth, is to invest our negative liberties in it so we may keep watch over them and see that our fellow man abides by this.
Stepping back to Book III in Law of Nations, there is this passage:
§ 3. Right of making war.(136)
In treating of the right to security (Book II. Chap. IV.), we have shown that nature gives men a right to employ force, when it is necessary for their defence, and for the preservation of their rights. This principle is generally acknowledged: reason demonstrates it; and nature herself has engraved it on the heart of man. Some fanatics indeed, taking in a literal sense the moderation recommended in the gospel, have adopted the strange fancy of suffering themselves to be massacred or plundered, rather than oppose force to violence. But we need not fear that this error will make any great progress. The generality of mankind will, of themselves, guard against its contagion — happy, if they as well knew how to keep within the just bounds which nature has set to a right that is granted only through necessity! To mark those just bounds, — and, by the rules of justice, equity, and humanity, to moderate the exercise of that harsh, though too often necessary right — is the intention of this third book.
Nature gives us the right to employ force in self-defense so as to preserve our rights.
Do notice that the problem of those wishing to take to heart the extreme literal teachings of the gospel want to suffer plunder, depredation and massacre rather than employ violence to defend themselves. de Vattel does not mince words when he calls them 'fanatics' as they are that: devoted to a cause without using reason. There must be bounds to the teachings in the gospel, for they do not tell you to become a slave to warlords, killers, pirates, brigands, thieves and those wishing to maraud against you like animals. To prescribe that those who give up the laws of earth are to be ENTITLED to them is a fanatical position: to do so no longer makes one civilized, but fanatical at removing the reason behind having society and Nation to have such laws.
From there we go on to see where we put our negative liberty of warfare for ourselves and society:
§ 4. It belongs only to the sovereign power.(137)
As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).
Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
We cannot have this right to ourselves if we wish to have society: they cannot co-exist, and one must put aside this right to HAVE society. They return to us, fully, when we are attacked and our organs of society called government cannot or WILL NOT defend us. We are not divorced from these rights, they are born in us all in equal measure and it is only when we set aside the use of these rights to cooperate with our fellow man do we gain the boon of comradeship and some security. When any person takes up the personal, in-born rights and no longer sets them aside, they are saying that they wish not to have a society WITH US. If we extend the hand of friendship and goodness to them, they have already spurned it by not only walking away from society but, then, in exercising these rights against our fellow man.
There is no due process of law that we can give them.
They have taken up the merciless position of war for themselves and spurn societies and Nation to work their ways using the means of warfare. Even the tribes they exploit when they are from foreign soils, recognize that those in the tribe invest the negative liberty of warfare in the tribe, to be moderated by the whole, and those that seek to fight on their own do not have the support of those abiding by the common society. To fight alone is not 'glorious' it is a horror as only animals will do that or those so threatened as to have no other recourse than to viciously assert their rights to be free of oppression.
When we invest these negative liberties in government to protect us all it gains majesty. Not only is this part of the act of making it a sovereign government, but we elevate it to demonstrate that we will not commit wanton acts of warfare as that dissolves the majesty of our endeavor. Without that government given our the use of our liberties and our agreement to not use them we, a government would have no majesty but would not exist. Thus taking the right to wage war on our own is to dissolve our connection to majesty and when we seek to give mercy to those who have no endowment, no capability to invest their liberty and right to use it in something higher than themselves, we elevate Nature's beasts to that of Nations. And yet that is what so many call for, to raise bestial man up to 'due process of law' and, thusly, not increase the stature of the law but corrode it as we now believe that monsters can be given mercy.
From that digression we can no go forward in understanding with Jefferson and his editor Franklin:
--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Whenever government becomes destructive of the ends of civil society, whenever it abuses that society and uses that investment of negative liberties meant to protect us to undermine society, then that government can be changed or abolished by the people. Government is to utilize the means we give it to protect us, not dictate to us. When we seek to invest 'good' things, positive liberty that is the sole domain of the people INTO government, we act in an ill way towards ourselves. When we seek to have government address those who have attacked the government and who show no willingness to be tried by civil means and civil authority, the remedy that must be sought is martial not civil on its own.
Going to war against a Nation (be it offensive or defensive war) requires us to give quarter and mercy on the battlefield. For those abridging the law of nations, however, we learn this:
§ 141. A particular case, in which quarter may be refused.
There is, however, one case in which we may refuse to spare the life of an enemy who surrenders, or to allow any capitulation to a town reduced to the last extremity. It is, when that enemy has been guilty of some enormous breach of the law of nations, and particularly when he has violated the laws of war. This refusal of quarter is no natural consequence of the war, but a punishment for his crime, — a punishment which the injured party has a right to inflict. But, in order that it be justly inflicted, it must fall on the guilty. When we are at war with a savage nation, who observe no rules, and never give quarter, we may punish them in the persons of any of their people whom we take, (these belonging to the number of the guilty.) and endeavour, by this rigorous proceeding, to force them to respect the laws of humanity. But, wherever severity is not absolutely necessary, clemency becomes a duty. Corinth was utterly destroyed for having violated the law of nations in the person of the Roman ambassadors. That severity, however, was reprobated by Cicero and other great men. He who has even the most just cause to punish a sovereign with whom he is in enmity, will ever incur the reproach of cruelty, if he causes the punishment to fall on his innocent subjects. There are other methods of chastising the sovereign, — such as depriving him of some of his rights, taking from him towns and provinces. The evil which thence results to the nation at large, is the consequence of that participation which cannot possibly be avoided by those who unite in political society.
Even against savage Nations we are to ensure that this justice falls upon them with equanimity so that they learn to respect the laws of humanity, the laws of earth. That is for those who fall within a Nation that has savage rulers, when there is no National support, no way to hold a government and its people accountable, such as the case when man takes back all his liberties and dissolves his connections with our human laws, there is no sovereign to impress, no Nation to demonstrate what the laws of warfare and humanity actually MEAN. If there were we would give it, to avoid untold bloodshed. For those that take prisoners only to behead them, defile them, and otherwise utilize them against all the laws of humanity and have no Nation to which to protest their actions, then they have offered us only one response in warfare: no quarter.
What we do not gain is respect from other Nations when we do: we gain their derision because we cannot distinguish between civilized man and bestial man. When we do offer mercy for the mere need to protect our fellow citizens, and then seek to hand such over to the Nations where they came from, is it any wonder those Nations look askance at us? Why should THEY clean up for crimes committed against US? Why should they take in a bestial man when it is our right and duty to ensure that such never becomes a threat to humanity AGAIN? When we find such monsters off the battlefield preparing for yet another odious attack, we can subject them to civil law, but only at our peril. To advocate for it is not to seek international law but international lawlessness as it is advocating placing Natural Law on par with human law, earthly law, which we create to protect us from that self-same Natural Law.
Then, when the easy appeals to why the respect of the rule of law falls on deaf ears for those that have abdicated any recognition of the right of a society to have civil law, we hear the grand appeal to another and lesser area of international law on the Universal Declaration of Human rights. It is, indeed, a lofty thing as treaties go, but it is a treaty: subordinate to the law of nations, itself, and secondary to any internal law of those individual Nations. It is not an over-arching document of appeal for every human on the planet as that treaty requires adherence to it so as to get the 'rights' it outlines. Those who claim to use the treaty to back themselves up have, clearly, not read it, as the very last article is thusly given:
Article 30.Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Yes you do not get the right to act in a barbaric fashion from this treaty, and when you aim at the destruction of those freedoms and rights you do not get the protection of this treaty. As articles go it is a negation one: you don't get the right to destroy what is set up therein. Thus, to do those acts you have stepped away from the protections of it. If you wanted those protections you would act in a fashion to uphold it, but by not doing so those that take such actions cannot be given the sanctuary of it as it is reserved for those in civil society who obey the laws of their Nation and the law of nations.
From that, international law offers no safe haven. Nor can any treaty or convention on warfare as those that work to dissolve the harmony of Nations put themselves outside the protection of the civil laws and laws of war and peace. I do not say that in a mean spirited way, in fact that is a most distressing thing to me, beyond measure, that our fellow man would return to a bestial state and not uphold civilization. They have moved to the tender mercies of the Law of Nature, red in tooth and claw, recognize this and expect no other in return. Would that some Nation had done this so we could repatriate these people to that Nation after a war, but they have dissolved those bonds by their own actions. Even KSM has complained that the 'rights' he is due have slowed the process of justice for him, as he knows the conclusion of that and is able to cite speedy remedy to us, his captors, as a great boon for those in his state of confinement. When a beast tells us we are too civilized, that we are tripping over ourselves to show mercy to a beast who expects none, then it is not our actions that are at fault, but our inability to attend to our duty as a Nation to protect our citizens and the citizens of all Nations from those who take up vile Personal war against us.
If KSM can recognize this how can we not do so?
§ 183. An unjust war gives no right whatever.
HE who is engaged in war derives all his right from the justice of his cause. The unjust adversary who attacks or threatens him, — who withholds what belongs to him, — in a word, who does him an injury, — lays him under the necessity of defending himself, or of doing himself justice, by force of arms; he authorizes him in all the acts of hostility necessary for obtaining complete satisfaction. Whoever therefore takes up arms without a lawful cause, can absolutely have no right whatever: every act of hostility that he commits is an act of injustice.
He knows what he is due, and in chiding us, the predator tells his prey that their duty is killing them by not putting him away forever.
Yes we do, indeed, hear cries of how bad torture is against these predators.
They are right in that we do no mercy in letting such predators live, save when they can give us information to save the lives of our fellow man who live under the laws of earth and man. When those we capture decry that we are taking too long to do anything to them, they know their position in this order of things, while those wanting them treated 'nicely' do not. Those who take up arms against us for themselves, under no guise of sovereignty, have no right whatsoever that they can appeal to nor NONE that can be given to them. They avow the injustice of all things not of the Law of Nature and disdain them all in their actions which follow their lethal intents predicted by their horrific words. They follow through on their promises to us, and recognize that we have a duty to remove them from the fold of human laws all together, and permanently.
When we quail at the thought of putting down a rabid dog who was once our beloved pet, we, too, will feel heartbreaking sickness that we must now put an end to a once loyal companion. That companion once knew of our relationship and the law of it between us and them, but Nature has interceded between us. Those that remove that barrier and recede into the Laws of Nature have but themselves to blame for what they do, and cannot appeal to illness. They could hold themselves accountable and give themselves up to civil authority to be judged. They could do that and step back into the fold of humanity to be judged by us. When they are dragged from their 'safe houses' and 'spider holes' they are not seeking that from us. Would that these were mere normal criminals transgressing mere civil law, but they aren't. They have dissolved that tie between themselves and civilization to return to Law of Nature. They can always return to be tried by us for their predatory crimes against us and receive that due process that all who respect the law of nations are due.
They can start acting civilized whenever they want and do so.
After being captured it is far too late to give them that gift they have spurned and scorned.
The duty of our government and Nation are clear on that, and the determination that they make unlawful war against us is all that is necessary.
The judgement penalty are given.
KSM knows that and accepts it.
Once we are too civilized to do our duty to ourselves, then we are truly lost and will soon be just like him.
And the monsters will have won.