Waterboarding is a form of torture that consists of immobilizing a person on their back with the head inclined downward and pouring water over the face and into the breathing passages.[1][2] Through forced suffocation and inhalation of water, the subject experiences the process of drowning and is made to believe that death is imminent.[3] In contrast to merely submerging the head face-forward, waterboarding almost immediately elicits the gag reflex.[4] Although waterboarding does not always cause lasting physical damage, it carries the risks of extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, injuries (including broken bones) due to struggling against restraints, psychological injury, and death.[5] The psychological effects on victims of waterboarding can last for years after the procedure.[6]
Waterboarding was used for interrogation at least as early as the Spanish Inquisition to obtain information,[7] coerce confessions, punish, and intimidate. It is considered to be torture by a wide range of authorities, including legal experts,[5][8] politicians, war veterans,[9][10] intelligence officials,[11] military judges,[12] and human rights organizations.[13][14] In 2007 waterboarding led to a political scandal in the United States when the press reported that the CIA had waterboarded extrajudicial prisoners and that the Justice Department had authorized this procedure.[15][16] The CIA is known to have used waterboarding on at least three Al-Qaida suspects: Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.[17][18]
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The waterboarding technique was characterized in 2005 by former CIA director Porter J. Goss as a "professional interrogation technique".[13] According to press accounts, a cloth or plastic wrap is placed over or in the person's mouth, and water is poured on to the person's head. As far as the details of this technique, press accounts differ – one article describes "dripping water into a wet cloth over a suspect's face",[19] another states that "cellophane is wrapped over the prisoner's face and water is poured over him".[20] CIA officers who have subjected themselves to the technique have lasted an average of 14 seconds before caving in.[4]
Two televised segments, one from Fox News and one from Current TV, demonstrate a waterboarding technique that may be the subject of these press descriptions.[21][22] In the videos, each correspondent is held against a board by the interrogators. In the Current TV segment, a rag is then forced into the correspondent's mouth, and several pitchers of water are poured onto the rag. The interrogators periodically remove the rag, and the correspondent is seen to gasp for breath. The Fox News segment mentions five "phases" of which the first three are shown. In the first phase, water is simply poured onto the correspondent's face. The second phase is similar to the Current TV episode. In phase three, plastic wrap is placed over the correspondent's face, and a hole is poked into it over his mouth. Water is poured into his mouth through the hole, causing him to gag. He mentions that it really does cause him to gag; that it could lead to asphyxiation; and that he could stand it for only a few seconds.
Dating back to the Spanish Inquisition, the technique has been favored because, unlike most other torture techniques, it produces no marks on the body.[23] Information retrieved from the waterboarding may not be reliable because a person under such duress may admit to anything, as harsh interrogation techniques lead to false confessions. "The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law", says John Sifton of Human Rights Watch.[4] It is "bad interrogation. I mean you can get anyone to confess to anything if the torture's bad enough", said former CIA officer Bob Baer.[4]
Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, has treated "a number of people" who had been subjected to forms of near-asphyxiation, including waterboarding. An interview for The New Yorker states, "[He] argued that it was indeed torture, 'Some victims were still traumatized years later', he said. One patient couldn't take showers, and panicked when it rained. 'The fear of being killed is a terrifying experience', he said".[6] Keller also stated in his testimony before the Senate that "water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia (rapid heart beat) and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse".[24]
In an open letter to U.S. Attorney General Alberto Gonzales, Human Rights Watch claimed that waterboarding can cause the sort of "severe pain" prohibited by 18 USC 2340 (the implementation in the United States of the United Nations Convention Against Torture), that the psychological effects can last long after waterboarding ends (another of the criteria under 18 USC 2340), and that uninterrupted waterboarding can ultimately cause death.[5]
While the techniques involved in waterboarding have been used for centuries, the use of the phrase "waterboarding" to describe such techniques is a relatively recent phenomenon.
The first use of the term "water boarding" in the media was in a New York Times article of May 13, 2004:
In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as 'water boarding', in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.[25][26][27]
The American attorney Alan Dershowitz is reported to have been responsible, two days later, for shortening the term to a single word—"waterboarding"—in a Boston Globe article where he stated: "After all, the administration did approve rough interrogation methods for some high valued detainees. These included waterboarding, in which a detainee is pushed under water and made to believe he will drown unless he provides information, as well as sensory deprivation, painful stress positions, and simulated dog attacks".[28] Dershowitz later stated to New York Times columnist William Safire that "when I first used the word, nobody knew what it meant".[27]
Prior to this use, techniques that involved forcible drownings to extract information were referred to as "water cure", "water treatment", "water torture", or simply "torture".[29][27] Notably, a UPI article in 1976 used the term "'water board' torture" to describe a training technique: "[U.S. Navy trainees] were strapped down and water poured into their mouths and noses until they lost consciousness ... A Navy spokesman admitted use of the 'water board' torture ... to 'convince each trainee that he won’t be able to physically resist what an enemy would do to him'".[27]
Darius Rejali, a professor at Reed College and the author of the recent book Torture and Democracy, has speculated that the creation of the word "waterboarding" was probably the result of the need for a euphemism to describe the practice. Rejali stated that "there is a special vocabulary for torture. When people use tortures that are old, they rename them and alter them a wee bit. They invent slightly new words to mask the similarities. This creates an inside club, especially important in work where secrecy matters. Waterboarding is clearly a jailhouse joke. It refers to surfboarding" — a word found as early as 1929 — "they are attaching somebody to a board and helping them surf. Torturers create names that are funny to them".[27]
Waterboarding is considered to be torture by a wide range of authorities, including legal experts,[5][8][30] politicians, war veterans,[9][10] intelligence officials,[31] military judges,[12] and human rights organizations.[13][14] David Miliband, the United Kingdom Foreign Secretary described it as torture on July 19, 2008, and stated "the UK unreservedly condemns the use of torture."[32] Arguments have been put forward that it might not be torture in all cases, or that they are uncertain.[33][34][35][36] The U.S. State Department has recognized that other techniques that involve submersion of the head of the subject during interrogation would qualify as torture.[37]
The United Nations' Report of the Committee Against Torture: Thirty-fifth Session of November 2006, stated that state parties should rescind any interrogation techniques, such as waterboarding, that constitutes torture or cruel, inhuman, or degrading treatment or punishment.[38]
Whether waterboarding should be classified as a method of torture was not widely debated in the United States before it was alleged, in 2004, that members of the CIA have used the technique against certain suspected detained terrorists.[39][40] Since then, some commentators have argued that waterboarding as an interrogation method should not qualify as torture in certain circumstances while other individuals have refused to state whether they would consider waterboarding to be torture without knowing the specific facts of a situation.
Andrew C. McCarthy, a licensed attorney and former U.S. federal prosecutor now serving as director of the Center for Law and Counterterrorism, states in an October 2007 op-ed in National Review that he believes that, when used "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law. McCarthy continues: "Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture, an ignominy the law, as we've seen, has been patently careful not to trivialize or conflate with lesser evils".[33] Nevertheless, McCarthy in the same article admits that "waterboarding is close enough to torture that reasonable minds can differ on whether it is torture" and that "[t]here shouldn’t be much debate that subjecting someone to [waterboarding] repeatedly would cause the type of mental anguish required for torture".[33]
Some American politicians have unequivocally stated that it is their belief that waterboarding is not torture. In response to the question "Do you believe waterboarding is torture?" on the Glenn Beck Program, Representative Ted Poe stated "I don't believe it's torture at all, I certainly don't". Beck agreed with him.[36] The American conservative media commentator Jim Meyers has stated, in a December 2007 Newsmax.com opinion piece, that he does not believe that waterboarding should be classified as a form of torture, because he does not believe it inflicts pain.[41]
However, other American commentators have questioned the legality of waterboarding as an interrogation technique. For example, Professor Wilson R. Huhn's 2008 scholarly editorial "Waterboarding is Illegal", published by Washington University Law Review, directly questions the legality of the technique from a legal perspective.[42]
In May 2008 the journalist Christopher Hitchens voluntarily experienced waterboarding. He managed to resist for twelve seconds the first time, and, embarrassed at his poor performance, he asked to try again. He then managed to resist for 19 seconds. [43] He later told the BBC: "There is a common misconception that waterboarding simulates the sensation of drowning, but you are to all intents and purposes actually drowning".[43] He said that although he was somewhat prepared for his ordeal, he had not been prepared for what came later: "I have been waking up with sensations of being smothered". [43] Hitchens concluded, "if waterboarding does not constitute torture, then there is no such thing as torture. Believe me. It's torture".[44][45][46]
A form of torture similar to waterboarding called toca, and more recently "Spanish water torture", to differentiate it from the better known Chinese water torture, along with garrucha (or strappado) and the most frequently used potro (or the rack), was used infrequently during the trial portion of the Spanish Inquisition process. "The toca, also called tortura del agua, consisted of introducing a cloth into the mouth of the victim, and forcing them to ingest water spilled from a jar so that they had the impression of drowning".[47] One source has claimed that the use of water as a form of torture also had profound religious significance to the Inquisitors.[48]
Agents of the Dutch East India Company used a precursor to waterboarding during the Amboyna massacre, which took place on the island of Amboyna in the Molucca Islands in 1623. At that time, it consisted of wrapping cloth around the victim's head, after which the torturers "poured the water softly upon his head until the cloth was full, up to the mouth and nostrils, and somewhat higher, so that he could not draw breath but he must suck in all the water".[49] In one case, the torturer applied water three or four times successively until the victim's "body was swollen twice or thrice as big as before, his cheeks like great bladders, and his eyes staring and strutting out beyond his forehead".[50]
After the Spanish American War of 1898 in the Philippines, the US Army used waterboarding which was called the “water cure” at the time. Major Edwin Glenn was court martialed and sentenced to 10 years hard labor for waterboarding a suspected insurgent.[51] President Theodore Roosevelt ordered the court-martial of the American General on the island of Samar for allowing his troops to waterboard. When the court-martial found only that he had acted with excessive zeal, Roosevelt disregarded the verdict and had the General dismissed from the Army.[52][53]
During World War II both Japanese troops, especially the Kempeitai, and the officers of the Gestapo,[54] the German secret police, used waterboarding as a method of torture.[55] During the Japanese occupation of Singapore the Double Tenth Incident occurred. This included waterboarding, by the method of binding or holding down the victim on his back, placing a cloth over his mouth and nose, and pouring water onto the cloth. In this version, interrogation continued during the torture, with the interrogators beating the victim if he did not reply and the victim swallowing water if he opened his mouth to answer or breathe. When the victim could ingest no more water, the interrogators would beat or jump on his distended stomach.[56][57]
Chase J. Nielsen, one of the U.S. airmen who flew in the Doolittle raid following the attack on Pearl Harbour, was subjected to waterboarding by his Japanese captors.[58] At their trial for war crimes following the war, he testified "Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again... I felt more or less like I was drowning, just gasping between life and death".[30]
The technique was also used during the Algerian War (1954-1962). The French journalist Henri Alleg, who was subjected to waterboarding by French paratroopers in Algeria in 1957, is one of only a few people to have described in writing the first-hand experience of being waterboarded. His book The Question, published in 1958 with a preface by Jean-Paul Sartre subsequently banned in France until the end of the Algerian War in 1962, discusses the experience of being strapped to a plank, having his head wrapped in cloth and positioned beneath a running tap:
The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. But for a while I could still breathe in some small gulps of air. I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I couldn't hold on for more than a few moments. I had the impression of drowning, and a terrible agony, that of death itself, took possession of me. In spite of myself, all the muscles of my body struggled uselessly to save me from suffocation. In spite of myself, the fingers of both my hands shook uncontrollably. "That's it! He's going to talk", said a voice.
The water stopped running and they took away the rag. I was able to breathe. In the gloom, I saw the lieutenants and the captain, who, with a cigarette between his lips, was hitting my stomach with his fist to make me throw out the water I had swallowed.[59]
Alleg stated that he had not broken under his ordeal of being waterboarded.[60] Alleg has stated that the incidence of "accidental" death of prisoners being subjected to waterboarding in Algeria was "very frequent".[9]
Waterboarding was designated as illegal by U.S. generals in the Vietnam War.[61] On January 21, 1968, The Washington Post published a controversial photograph of two U.S soldiers and one South Vietnamese soldier participating in the waterboarding of a North Vietnamese POW near Da Nang.photo[62] The article described the practice as "fairly common".[62] The photograph led to the soldier being court-martialled by a U.S. military court within one month of its publication, and he was discharged from the army.[61][63] Another waterboarding photograph of the same scene is also exhibited in the War Remnants Museum at Ho Chi Minh City.[64]
Based on the testimonies from more than 35,000 victims, of the Pinochet regime, the Chilean Commission on Political Imprisonment and Torture concluded that to provoke a near death experience, by waterboarding, is torture.[65]
The Khmer Rouge at the Tuol Sleng prison in Phnom Penh, Cambodia, used waterboarding as a method of torture between 1975 and 1979.[66] The practice was documented in a painting by former inmate Vann Nath, which is on display in the Tuol Sleng Genocide Museum.
All special operations units in all branches of the U.S. military employ the use of waterboarding as part of survival school (SERE) training, to psychologically prepare soldiers for the eventuality of being captured by the enemy forces.[67]
Jane Mayer wrote for The New Yorker:
According to the SERE affiliate and two other sources familiar with the program, after September 11th several psychologists versed in SERE techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the SERE program, as the affiliate put it. "They took good knowledge and used it in a bad way", another of the sources said. Interrogators and BSCT members at Guantánamo adopted coercive techniques similar to those employed in the SERE program.[68]
and continues to report:
many of the interrogation methods used in SERE training seem to have been applied at Guantánamo.[68]
The use of "third degree interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread in early American policing. Lassiter classified the water cure as "orchestrated physical abuse", and described the police technique as a "modern day variation of the method of water torture that was popular during the Middle Ages". The technique employed by the police involved either holding the head in water until almost drowning, or laying on the back and forcing water into the mouth or nostrils.[69] Such techniques were classified as "'covert' third degree torture" since they left no signs of physical abuse, and became popular after 1910 when the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions.[70] The publication of this information in 1931 as part of the Wickersham Commission's "Report on Lawlessness in Law Enforcement" led to a decline in the use of third degree police interrogation techniques in the 1930s and 1940s.[70]
In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning".[58] The sheriff was sentenced to ten years in prison, and the deputies to four years.[58][71]
On February 6, 2008, the CIA director General Michael Hayden stated that the CIA had used waterboarding on three prisoners during 2002 and 2003, namely Khalid Shaikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri.[72][73]
The June 21, 2004 issue of Newsweek stated that the Bybee memo, a 2002 legal memorandum drafted by former OLC lawyer John Yoo that described what sort of interrogation tactics against suspected terrorists or terrorist affiliates the Bush administration would consider legal, was "prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative ... and was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques", citing "a source familiar with the discussions". Amongst the methods they found acceptable was waterboarding.[74]
In November 2005, ABC News reported that former CIA agents claimed that the CIA engaged in a modern form of waterboarding, along with five other "enhanced interrogation techniques," against suspected members of al Qaeda.
On July 20, 2007, U.S. President George W. Bush signed an executive order banning torture during interrogation of terror suspects.[75] While the guidelines for interrogation do not specifically ban waterboarding, the executive order refers to torture as defined by 18 USC 2340, which includes "the threat of imminent death," as well as the U.S. Constitution's ban on cruel and unusual punishment.[76] Reaction to the order was mixed, with the CIA satisfied that it "clearly defined" the agency's authorities, but Human Rights Watch saying that answers about what specific techniques had been banned lay in the classified companion document and that "the people in charge of interpreting [that] document don't have a particularly good track record of reasonable legal analysis".[77]
On September 14, 2007, ABC News reported that sometime in 2006 CIA Director Michael Hayden asked for and received permission from the Bush administration to ban the use of waterboarding in CIA interrogations. The sources of this information were current and former CIA officials. ABC reported that waterboarding had been authorized by a 2002 Presidential finding.[78] On November 5, 2007, The Wall Street Journal reported that its "sources confirm ... that the CIA has only used this interrogation method against three terrorist detainees and not since 2003".[79] John Kiriakou, a former CIA officer, is the first official within the U.S. government to openly admit to the use of waterboarding as an interrogation technique, as of December 10, 2007.[80][81]
On February 23, 2008, the Justice Department revealed that its internal ethics office was investigating the department’s legal approval for waterboarding of al Qaeda suspects by the CIA and was likely to make public an unclassified version of its report.[82]
On October 15, 2008, it was reported that the Bush administration had issued a pair of secret memos to the CIA in June 2003 and June 2004 explicitly endorsing waterboarding and other torture techniques against al-Qaeda suspects.[83] The memos were granted only after "repeated requests" from the CIA, who at the time were worried that the White House would eventually try to distance themselves from issue; field employees in the agency believed they could easily be blamed for using the techniques without proper written permission or authority.[83] Until this point, the Bush administration had never been concretely tied to acknowledging the torture practices.
Khalid Sheikh Mohammed was waterboarded while being interrogated by the CIA. According to the Bush administration, Khalid Sheikh Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Riduan Isamuddin (AKA Hambali), the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. According to the Bush administration, he also provided information on an Al Qaeda leader in England.[84]
During a radio interview on October 24, 2006, with Scott Hennen of radio station WDAY, Vice President Dick Cheney seemed to agree with the use of waterboarding.[85] The following are the questions and answers at issue, excerpted from the transcript of the interview:
Hennen: "…And I've had people call and say, please, let the Vice President know that if it takes dunking a terrorist in water, we're all for it, if it saves American lives. Again, this debate seems a little silly given the threat we face, would you agree?"
Cheney: "I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation. Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that."
…
Hennen: "Would you agree a dunk in water is a no-brainer if it can save lives?"
Cheney: "Well, it's a no-brainer for me, but for a while there I was criticized as being the vice president for torture. We don't torture. That's not what we're involved in."[86]
The administration later denied that Cheney had confirmed the use of waterboarding, saying that U.S. officials do not talk publicly about interrogation techniques because they are classified. White House Press Secretary Tony Snow said that Cheney was not referring to waterboarding, but only to a "dunk in the water", prompting one reporter to ask, "So dunk in the water means, what, we have a pool now at Guantanamo and they go swimming?" Tony Snow replied, "You doing stand-up?"[87] On September 13, 2007 ABC News reported that a former intelligence officer stated that Khalid Sheikh Mohammed had been waterboarded in the presence of a female CIA supervisor.[88]
Captured along with Khalid Sheikh Mohammed was a letter from bin Laden which led officials to think that he knew where the Al Qaeda founder was hiding.[89][90]
According to sources familiar with a private interview of Khalid Sheikh Mohammed, he claimed to have been waterboarded five times.[84] A CIA official told ABC News that "he had been water-boarded, and had won the admiration of his interrogators because it took him two to two-and-half minutes to start confessing—well beyond the average of 14 seconds observed in others".[91] This is disputed by two former CIA officers who are reportedly friends with one of Khalid Sheikh Mohammed's interrogators. The officers called this "bravado" and claimed that he was waterboarded only once. According to one of the officers, Khalid Sheikh Mohammed needed only to be shown the drowning equipment again before he "broke". "Waterboarding works", the former officer said. "Drowning is a baseline fear. So is falling. People dream about it. It’s human nature. Suffocation is a very scary thing. When you’re waterboarded, you’re inverted, so it exacerbates the fear. It’s not painful, but it scares the shit out of you". This former officer had been waterboarded himself in a training course. Khalid Sheikh Mohammed, he claimed, "didn’t resist. He sang right away. He cracked real quick". He said, "A lot of them want to talk. Their egos are unimaginable. [He] was just a little doughboy. He couldn't stand toe to toe and fight it out".[84] After being subjected to waterboarding, Khalid Sheikh Mohammed claimed involvement in thirty-one terrorist plots.[92]
Abu Zubaida was also waterboarded by the CIA.[93]
In 2002, U.S. intelligence located Abu Zubayda by tracing his phone calls. He was captured March 28, 2002, in a safehouse located in a two story apartment in Faisalabad, Pakistan. While in U.S. custody, he was waterboarded,[94] and subsequently gave a great deal of information about the 9/11 attack plot. Such information was used by the Canadian government in seeking to uphold the "security certificate" of Mohamed Harkat. Participating in his interrogation were two American psychologists, James Elmer Mitchell and R. Scott Shumate.[95][96]
In December 2007, the Washington Post reported that there were some discrepancies regarding reports about the amount of times Zubaida was waterboarded. According to a previous account by former CIA officer John Kiriakou, Abu Zubaida broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning:
"But other former and current officials disagreed that Abu Zubaida's cooperation came quickly under harsh interrogation or that it was the result of a single waterboarding session. Instead, these officials said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months. The videotaping of Abu Zubaida in 2002 went on day and night throughout his interrogation, including waterboarding, and while he was sleeping in his cell, intelligence officials said ... The CIA has said it ceased waterboarding in 2003".[97]
The issue of whether waterboarding is torture became an issue in confirming certain appointments to the Department of Justice. Judge Michael Mukasey was intended to be a consensus candidate to replace Alberto Gonzalez as Attorney General, but his confirmation briefly looked in doubt when he would not state whether waterboarding is torture. Mukasey stated that waterboarding seemed "over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans" but added that "hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical". As reported by the Washington Post, Mukasey also stated that he was "reluctant to offer opinions on interrogation techniques because he does not want to place U.S. officials 'in personal legal jeopardy' and is concerned that such remarks might 'provide our enemies with a window into the limits or contours of any interrogation program'".[98]
The issue came up again in the confirmation hearings of Federal District Judge Mark Filip for the position of deputy attorney general. Filip stated that he considered waterboarding to be "repugnant", and stated that, having had a grandfather in a POW camp in Germany, he considered the issue to be somewhat personal. However, he refused to state whether waterboarding was torture and stated instead that "the attorney general of the United States is presently reviewing that legal question" and that "I don't think I can or anyone who could be potentially considered for his deputy could get out in front of him on that question while it's under review".[99]
The issue of whether waterboarding should be classified as torture also became a political issue for candidates running for president in the 2008 election, which candidates being asked whether they would consider waterboarding to be a form of torture. Several candidates (e.g. John McCain,[10] Mike Huckabee,[100] Joseph Biden,[101] Chris Dodd,[102] Barack Obama,[103] Hillary Clinton[104]) have stated that waterboarding is torture, while others have stated that it depends on how it is done or have stated unequivocally that they do not believe waterboarding is torture.[35]
For example, in response to a direct question of whether he considered waterboarding to be torture, Rudolph Giuliani stated "I’m not sure [waterboarding] is [torture]. It depends on how it’s done. It depends on the circumstances. It depends on who does it. I think the way it’s been defined in the media, it shouldn’t be done. The way in which they have described it, particularly in the liberal media. So I would say, if that’s the description of it, then I can agree, that it shouldn’t be done. But I have to see what the real description of it is. Because I’ve learned something being in public life as long as I have. And I hate to shock anybody with this, but the newspapers don’t always describe it accurately".[35]
Additionally, Tom Tancredo stated in a Republican debate the following: "[T]he question that I was originally asked that elicited the response that you’ve mentioned was, what do we do in the — in the response to a nuclear — or the fact that a nuclear device or some bombs have gone off in the United States; we know that there are — we have captured people who have information that could lead us to the next one that’s going to go off; and it’s the big one? That was the question that I responded to. And I told you yes, I would do — certainly waterboard — I don’t believe that that is, quote, "torture." I would do what is necessary to protect this country. That is the ultimate responsibility of the president of the United States".[105]
In the Republican YouTube debates, Andrew Jones, a college student from Seattle submitted the question: "Recently, Senator McCain has come out strongly against using waterboarding as an instrument of interrogation. My question for the rest of you is, considering that Mr. McCain is the only one with any firsthand knowledge on the subject, how can those of you sharing the stage with him disagree with his position?" In response to this question Mitt Romney stated "I oppose torture. I would not be in favor of torture in any way, shape or form". Prompted by the moderator as to whether waterboarding was torture, Romney said "as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use" which prompted the following exchange between McCain and Romney: McCain: "Well, governor, I'm astonished that you haven't found out what waterboarding is". Romney: "I know what waterboarding is, Senator". McCain: "Then I am astonished that you would think such a – such a torture would be inflicted on anyone in our — who we are held captive and anyone could believe that that's not torture. It's in violation of the Geneva Convention".[106]
McCain later reiterated his opinion in an interview with 60 minutes on March 9, 2008, shortly after becoming the presumptive 2008 Republican presidential nominee, that waterboarding was torture and that the U.S. Government had tortured detained prisoners by using this technique. Scott Pelley asked if water boarding is torture, McCain said, "Sure. Yes. Without a doubt". Pelley then asked "So the United States has been torturing POWs?" Pelley asked. "Yes. Scott, we prosecuted Japanese war criminals after World War II. And one of the charges brought against them, for which they were convicted, was that they water-boarded Americans", McCain said.[107]
In the summer of 2008, New York City artist Steve Powers installed an animatronic depiction of an interrogator and an interrogation subject at the Coney Island amusement park.[108][109][110][111][112][113][114][115] The interrogation subject wears the orange jumpsuit "noncompliant" Guantanamo captives wear. Patrons view the tableaux through iron bars. When patrons deposit a dollar they see the figure of the interrogation subject struggle and convulse when the interrogator pours water over the subject's face.
Powers told the New York Times his purpose in preparing the display was educational:
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All nations that are signatory to the United Nations Convention Against Torture have agreed they are subject to the explicit prohibition on torture under any condition. This was affirmed by Saadi v. Italy in which the European Court of Human Rights, on February 28, 2008, upheld the absolute nature of the torture ban by ruling that international law permits no exceptions to it.[116] The treaty states "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture".[117] Additionally, signatories of the Universal Declaration of Human Rights are bound to Article 5, which states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".[118] Many signatories of the convention have made specific declarations and reservations regarding the interpretation of the term "torture" and restricted the jurisdiction of its enforcement.[119] However, UN High Commissioner for Human Rights, Louise Arbour, stated on the subject "I would have no problems with describing this practice as falling under the prohibition of torture", and that violators of the UN Convention against Torture should be prosecuted under the principle of universal jurisdiction.[120]
Bent Sørensen, Senior Medical Consultant to the International Rehabilitation Council for Torture Victims and former member of the United Nations Committee against Torture has said:
It’s a clear-cut case: Waterboarding can without any reservation be labeled as torture. It fulfils all of the four central criteria that according to the United Nations Convention Against Torture (UNCAT) defines an act of torture. First, when water is forced into your lungs in this fashion, in addition to the pain you are likely to experience an immediate and extreme fear of death. You may even suffer a heart attack from the stress or damage to the lungs and brain from inhalation of water and oxygen deprivation. In other words there is no doubt that waterboarding causes severe physical and/or mental suffering – one central element in the UNCAT’s definition of torture. In addition the CIA’s waterboarding clearly fulfills the three additional definition criteria stated in the Convention for a deed to be labeled torture, since it is 1) done intentionally, 2) for a specific purpose and 3) by a representative of a state – in this case the US.[121]
Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency, concurred by stating, in a hearing before the Senate Armed Services Committee, that he believes waterboarding violates Common Article 3 of the Geneva Conventions.[122]
In a review of The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, by Jane Mayer, The New York Times reported on July 11, 2008, that "Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes",[123] that the techniques applied to Abu Zubaydah were "categorically" torture,[123] and that Abu Zubaydah had told investigators that, contrary to what had been revealed previously, "he had been waterboarded at least 10 times in a single week and as many as three times in a day".[123]
The United States Supreme Court in Sosa v. Alvarez-Machain, said that the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law."[124] However, the United States has a historical record of regarding waterboarding as a war crime, and has prosecuted as war criminals individuals for the use of the practice in the past. In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for carrying out various acts of torture including kicking, clubbing, burning with cigarettes and using a form of waterboarding on a U.S. civilian during World War II. Yukio Asano received a sentence of 15 years of hard labor.[62] [125] The charges of Violation of the Laws and Customs of War against Asano also included "beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward."[126] In addition, the European Court of Human Rights ruled in February 2008 that local considerations do not negate the absolute torture prohibition under international law.[116]
Following the attacks of September 11, 2001, several memoranda,[127][128] including the Bybee memo, were written analyzing the legal position and possibilities in the treatment of prisoners. The memos, known today as the "torture memos,"[129] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.[130] In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.[131]
In its 2005 Country Reports on Human Rights Practices, the U.S. Department of State formally recognized "submersion of the head in water" as torture in its examination of Tunisia's poor human rights record,[132] and critics of waterboarding draw parallels between the two techniques, citing the similar usage of water on the subject.
On September 6, 2006, the U.S. Department of Defense released a revised Army Field Manual entitled Human Intelligence Collector Operations that prohibits the use of waterboarding by U.S. military personnel. The department adopted the manual amid widespread criticism of U.S. handling of prisoners in the War on Terrorism, and prohibits other practices in addition to waterboarding. The revised manual applies only to U.S. military personnel, and as such does not apply to the practices of the CIA.[133] Nevertheless Steven G. Bradbury, acting head of the US Department of Justice (DOJ) Office of Legal Counsel, on February 14, 2008 testified:
There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law.[134]
In addition, both under the War Crimes Act[135] and international law, violators of the laws of war are criminally liable under the command responsibility, and they could still be prosecuted for war crimes.[136] Commenting on the so-called "torture memoranda" Scott Horton pointed out
the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”[129]
Michael Mukasey's refusal to investigate and prosecute anyone that relied on these legal opinions led Jordan Paust of the University of Houston Law Center to write an article for JURIST stating:
it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense![137]
On February 22, 2008 Senator Sheldon Whitehouse made public that "the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies."[138]
Both houses of the United States Congress approved a bill by February 2008 that would ban waterboarding and other harsh interrogation methods. But President George W. Bush vetoed the bill on March 8, 2008. It appears unlikely that bill supporters will be able to gather enough votes to overturn the veto.[139]
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