Waterboarding is Unbiblical

By Phillip G. Kayser · 8/27/2015

Christians who support the use of waterboarding on suspected terrorists should reconsider the Biblical evidence. As we will see in this post, forced extraction of testimony from any captive is unlawful. The Bible is opposed to any civil officer deliberately inflicting pain or torment upon another human being in any way that is not explicitly authorized by the Bible,[1] including the use of such pain or torment to seek to gain information from a suspected terrorist.[2]

Scripture certainly allows the state to inflict pain and death against attacking armies in self-defensive wars, but once a person was off the battlefield and held in custody, despite the ongoing threat that his nation clearly posed, Scripture still required humane treatment of such prisoners.[3] Likewise, though the Scripture allowed the state to use corporal punishment[4] and Lex Talionis penalties against criminals,[5] until they were proven to be criminals in a court of law after careful due process, such penalties could not be inflicted.[6] Consider the following evidence concerning “suspects”:

First, Paul gave the standard interpretation of Deuteronomy 25:1-2 when he said that the slap he received as a prisoner was “contrary to the law.”[7] Certainly anything greater than this slap would also be contrary to the law. This would be true whether the person was a “native-born” or “a stranger who dwells among you” since there must be “one law” for both (Ex. 12:49). This principle would rule out waterboarding.[8]

Second, Nicodemus argued that judging anyone to be an enemy of the state prior to conviction in a court of law was contrary to the law.[9] Third, just as the Bible forbad cruelty to animals,[10] it prohibited cruelty to humans.[11] Fourth, only the accuser was required to bring witnesses;[12] the accused was allowed the right to remain silent.[13] Torture removes that right. Fifth, the accused was always treated as innocent until proven guilty.[14] While it is perfectly appropriate to ask a person to admit to wrong,[15] such confessions must be voluntary and cannot be forced.[16]

The modern treatment of suspected terrorists violates not only the rules of Scripture, but it also violates the Constitution and the common law rights listed in the Bill of Rights. Since Amendment VII has never been lawfully revoked, Common Law is still to be the basis for every court of the nation. America’s Organic Law still claims that these rights are given by God and therefore they cannot exclusively be said to be American rights.

Too much focus has been placed upon the “cruel and unusual punishments” clause of the Constitution. Much more to the point is the “due process clause”[17] and the “self-incrimination clause”[18] in the Fifth Amendment and the Fourteenth Amendment. These protections clearly apply to both citizens and aliens. Amendment Fourteen has some privileges for persons who are citizens, but then goes on to make a blanket statement for all persons (whether citizens or not): “nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Suspected terrorists are clearly being denied the protection of laws that other citizens have. Likewise Amendment Five applies to all persons the following provisions: “nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. Torture forces a person to witness against himself.[19]

  1. It has been notoriously difficult to define torture. Attempts by the United Nations, Amnesty International, and the Red Cross have all proved inadequate. When an organization can defend abortion their opposition to torture cannot be taken seriously. For a helpful discussion of how the definition of torture must be rooted in the Scripture, see Phillip G. Kayser, Torture: a Biblical Critique. Scripture does not consider the use of force to subdue a combatant in the midst of hostilities to be torture, and such actions are not being addressed in this post.

  2. To torture a suspected terrorist is a violation of all the protections of due process given in the Bible. Aliens have the same protection of the law as citizens (Lev. 24:22).

  3. In 2 Kings 6:8-23 God would not allow Israel to kill the Syrian captives despite the fact that they were captives from a nation at war with them. God said, “You shall not kill them. Would you kill those whom you have taken captive with your sword and your bow? Set food and water before them, that they may eat and drink and go to their master.”

    The clear implication was that while enslavement was allowed of captives, death was not. Of course, this was exactly what the law said with regard to all slaves (Ex. 21:20). But why did God command humane treatment, food, and clothing to these captive Syrians? Because God mandated the same humane care for all slaves (Deut. 23:15; see also Ex. 20:10; 21:26-27, 32; 23:12; Deut. 5:14-15; 12:12,18; 16:11-12,14).

    If Israel was not going to enslave them for war reparations, they had no option but to let them go. Deuteronomy 20:11-14 did allow for enslavement of hostile forces to pay for war reparations. It also allowed slaves to be beaten for disobedience (Ex. 21:20,26) because a slave “does not differ at all” from an immature child (Gal. 4:1). However, physical abuse of slaves was not tolerated (Ex. 21:26-27), and they had equal protection under the law (Lev. 24:22; cf. Lev. 19:15,33-34).

  4. Ex. 21:20; Deut. 25:2-3; Prov. 20:30; 23:13-14; 26:3; Luke 12:47-48

  5. Ex. 21:24; Lev. 24:20; Deut. 19:21; 25:11-12

  6. Everything had to be clearly “established” (Deut. 19:15) in a court of law (Deut. 25:1), using righteous standards (Lev. 19:15; Numb. 35:24), including the requirement of two or three witnesses (Deut. 17:6; 19:15; Heb. 10:28).

  7. Acts 23:3.

  8. Arguing by analogy, the rights the Scripture gives to slaves also rules out waterboarding. Since “a child is no different from a slave” (Gal. 4:1), any punishment that would be considered abusive of children would also be considered abusive of slaves. Beatings could only be inflicted on slaves for clear-cut punishment for documented disobedience (Luke 12:44-48). There is no evidence that slaves could be beaten to extract information from them.

    Sadly, many conservatives and Christians have supported waterboarding, little realizing that this opens the door for its use on citizens. These same Christians claim that waterboarding is not torture. This was the position taken by Judge Mukasey and White House Counsel Alberto Gonzales. Amazingly, both refused to distance themselves from the Bybee memo, which went even farther and stated that physical pain amounted to torture only if it was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” It is sad that it would take a man like Senator Edward Kennedy to confront such actions. Though much of this was posturing, he said in part:

    Waterboarding is a barbaric practice in which water is poured down the mouth and nose of the detainee to simulate drowning. The Nation's top military lawyers and legal experts from across the political spectrum have condemned this technique as a violation of U.S. law and a crime against humanity. Following World War II, the United States prosecuted a Japanese officer for engaging in this very practice, and that officer was convicted and sentenced to 15 years of hard labor.

    Waterboarding is torture. Period. Yet Judge Mukasey refuses to say so.

    His refusal was so extraordinary and unexpected that we asked the Judge a series of further questions to help us understand why an able, experienced lawyer would find it so difficult to agree that a practice used in the Spanish Inquisition was torture. But our questions were met with equivocation and evasion. Judge Mukasey … would not even say whether it would be unlawful for enemy forces to subject Americans to "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution." These extreme views are not only immoral and legally flawed, they also increase the risk that our own troops will be subjected to barbaric treatment.

    Judge Mukasey could not even bring himself to reject the legal reasoning behind the infamous Bybee "torture memo."

    November 1, 2007.

  9. John 7:47-53.

  10. Gen. 49:5-7; Prov. 12:10.

  11. Gen. 49:5-7; Ex. 6:9; Ps. 71:4; 74:20.

  12. Deut. 19:15; Lev. 5:1.

  13. Implied in Numb. 35:30; Deut. 17:6; 19:15 and explicitly affirmed by Christ’s silence (Mark 15:3-5; Matt 27:14).

  14. Deut. 25:1-2; Is. 43:9; Acts 16:37.

  15. See Josh 7:19-26.

  16. The right to remain silent is implied in Num. 35:30; Deut. 17:6; 19:15 and is explicitly affirmed by Christ’s silence in Mark 15:3-5; Matt. 27:14. This right is also implied in the fact that the law treated the accused as innocent until proven guilty (Deut. 25:1-2; Is. 43:9; Imp. Deut. 17:6; Acts 16:37; 23:3). Torture to extract information completely overturns these principles.

  17. Found in the Fifth and Fourteenth Amendments.

  18. Found in Amendment Five.

  19. The organic laws of our nation have always included the Declaration of Independence, The Constitution, and the Northwest Ordinance. Article VII of our Constitution dates itself as being in the twelfth year of our nation, clearly making the Declaration (rather than the Constitution) the founding document of our nation.