Waterboarding

Waterboarding in Cambodia during the Khmer Rouge regime. Painting by a former prison inmate, Vann Nath, at the Tuol Sleng Genocide Museum.

Waterboarding is a form of torture that consists of immobilizing the subject on his/her back with the head inclined downwards; water is then poured over the face into breathing passages, thus triggering the mammalian diving reflex causing the captive to experience the sensations of drowning.^[1][2] In contrast to submerging the head face-forward in water, waterboarding precipitates an almost immediate gag reflex.^[3] It can cause extreme pain, dry drowning, damage to lungs, brain damage from oxygen deprivation, other physical injuries including broken bones due to struggling against restraints, lasting psychological damage or, if uninterrupted, death.^[4] Adverse physical consequences can manifest themselves months after the event, while psychological effects can last for years.^[5] The term waterboarding was coined in 2004.^[6][7]

In 2007 it was reported that the Central Intelligence Agency (CIA), the U.S. intelligence service, was using waterboarding on extrajudicial prisoners and that the Department of Justice had authorized the procedure.^[8][9] Al-Qaeda suspects upon whom the CIA is known to have used waterboarding are Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri.^[10][11] According to Justice Department documents, the waterboarding of Khalid Sheik Mohammed provided information about an unrealized terrorist attack on Los Angeles.^[12]

U.S. government officials have at various times said they do not believe waterboarding to be a form of torture.^{[13][14][15][16]} To justify its use of waterboarding, the administration of George W. Bush issued classified legal opinions that argued for a narrow definition of torture under U.S. law, including the Bybee memo, which it later withdrew.^[17][18][19] In January 2009 President Barack Obama banned the use of waterboarding. In April 2009, the U.S. Department of Defense refused to say whether waterboarding is still used for training (e.g., SERE) purposes.^[12][20]

Technique

Waterboarding was characterized in 2005 by former CIA director Porter J. Goss as a "professional interrogation technique".^[21] 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",^[22] another states that "cellophane is wrapped over the prisoner's face and water is poured over him".^[3]

The United States's Office of Legal Counsel stated the CIA's definition of waterboarding in a Top Secret 2002 memorandum as follows:

In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth... During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths... The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout... You have... informed us that it is likely that this procedure would not last more than twenty minutes in any one application.^[23]

Dating back to the Spanish Inquisition, the suffocation of bound prisoners with water has been favored because, unlike most other torture techniques, it produces no marks on the body.^[24] CIA officers who have subjected themselves to the technique have lasted an average of 14 seconds before capitulating.^[3]

According to at least one former CIA official, 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.^[3] 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.^[3]

Reported demonstrations

Demonstration of waterboarding at a street protest during a visit by Condoleezza Rice to Iceland, May 2008

Two televised segments, one from Fox News and one from Current TV, demonstrated a waterboarding technique.^[25][26] 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.

Christopher Hitchens, a writer for Vanity Fair, voluntarily subjected himself to a filmed demonstration of waterboarding in 2008. The video shows Hitchens being led into a room that has a horizontal board waiting for him; he is bound and has a black mask over his face, blindfolding him. A group of men who are highly trained in this tactic, and who also demanded anonymity, carry out the torture. Hitchens is strapped to the board at the chest and feet, face up, and is unable to move. Metal objects are placed in each of his hands, meant to be dropped if he experiences "unbearable stress." Next, the torturers place a towel over Hitchens' face, and proceed to pour water on the towel. Within seconds, Hitchens throws the metal objects to the floor, and the torturers pull the mask from his face, allowing him to breathe.

Mental and physical effects

Dr. Allen Keller, the director of the Bellevue/NYU Program for Survivors of Torture, has treated "a number of people" who had been subjected to forms of near-asphyxiation, including waterboarding. In an interview for The New Yorker, "[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".^[5] 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".^[27]

A memo written in 2003 by the CIA's Office of Medical Services noted that "for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness."^[28]

In an open letter to U.S. Attorney General Alberto Gonzales, Human Rights Watch asserted 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.^[4]

Etymology

While the technique has been used in various forms for centuries, the term waterboarding dates from 2004.^[6] First appearance of the term in the mass media was in a New York Times article on 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.^[6][7][29]

The U.S. attorney Alan Dershowitz is reported to have shortened the term to a single word in a Boston Globe article two days later: "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".^[30] He later told the New York Times columnist William Safire that, "when I first used the word, nobody knew what it meant."^[6]

Techniques using forcible drowning to extract information had hitherto been referred to as "water torture," "water treatment," "water cure" or simply "torture."^[6][29] A UPI article in 1976 used the term 'water board' torture: "[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.'"^[6]

Professor Darius Rejali of Reed College, author of Torture and Democracy (2007), speculates that the term waterboarding probably has its origin in the need for a euphemism. "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".^[6]

Webster's Dictionary first included the term in 2009: "[A]n interrogation technique in which water is forced into a detainee's mouth and nose so as to induce the sensation of drowning." ^[31]

Classification as torture

Waterboarding is considered to be torture by a wide range of authorities, including legal experts,^[4][32][33] politicians, war veterans,^[34][35] intelligence officials,^[36] military judges,^[37] and human rights organizations.^[21][38] David Miliband, then United Kingdom Foreign Secretary, described it as torture on July 19, 2008, and stated "the UK unreservedly condemns the use of torture."^[39] Arguments have been put forward that it might not be torture in all cases, or that it is unclear.^{[16][40][41][42]} The U.S. State Department has recognized "submersion of the head in water" as torture in other circumstances, for example, in its 2005 Country Report on Tunisia.^[43]

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.^[44]

Controversy over classification as torture in the U.S.

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 had used the technique against certain suspected detained terrorists.^[45][46]

Subsequently, the U.S. government released a memorandum written in 2002 by the Office of Legal Counsel that came to the conclusion that waterboarding did not constitute torture and could be used to interrogate subjects. The OLC reasoned that "in order for pain or suffering to rise to the level of torture, the statute requires that it be severe" and that waterboarding did not cause severe pain or suffering either physically or mentally.^[47]

For over three years during the George W. Bush administration, the Justice Department’s Office of Professional Responsibility conducted an investigation into the propriety of this and other memos by the Justice Department on waterboarding and other "enhanced" interrogation techniques.^[48] The OPR report findings were that former Deputy AAG John Yoo committed intentional professional misconduct and that former AAG Jay Bybee committed professional misconduct. These findings were dismissed in a memo from Associate Deputy Attorney General David Margolis who found that Yoo showed "poor judgment" but did not violate ethical standards.^[49][50] Commentators have noted that the memos omitted key relevant precedents, including a Texas precedent under then-Governor George W. Bush when the state convicted and sentenced to prison for 10 years a county sheriff for waterboarding a criminal suspect.^[51] Then Governor Bush did not issue a pardon for the sheriff.^[51]

Former Bush administration officials Dick Cheney^[13][14] and John Ashcroft^[15] have stated since leaving office that they do not consider waterboarding to be torture. At least one Republican member of the U.S. Congress, Ted Poe,^[16] has taken a similar position.

Other Republican officials have provided less definitive views regarding whether waterboarding is torture. Andrew C. McCarthy, a former Republican prosecutor including in the Bush administration, has stated that when used in "some number of instances that were not prolonged or extensive," waterboarding should not qualify as torture under the law.^[52] McCarthy has also stated 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".^[52]

Many former senior Bush administration officials, on the other hand, have seriously questioned or directly challenged the legality of waterboarding. These include former State Department Counselor Philip Zelikow,^[53][54] former Deputy Secretary of State Richard Armitage,^[55] former Homeland Security Chief Tom Ridge,^[56] former head of the Office of Legal Counsel Jack Goldsmith,^[57] General David Petraeus,^[58] General Ricardo Sanchez,^[59] FBI Director Robert Mueller,^[60] and former Convening Authority for the Guantanamo military commissions Susan J. Crawford.^[61]

During his tenure as head of the Justice Department's Office of Legal Counsel in 2003-2004, Jack Goldsmith put a halt to the use of waterboarding as an interrogation technique because of serious concern over its legality, but Goldsmith's order was quickly reversed by others within the Bush administration.^[57][62]

The Republican 2008 candidate for president, Senator John McCain, has said unequivocally that he considers waterboarding to be torture.^[63]

Professors such as Professor Wilson R. Huhn have also challenged the legality of waterboarding.^[64]

In May 2008 the author and journalist Christopher Hitchens voluntarily underwent waterboarding and concluded that it was torture.^[65][66][67] He also noted that he has suffered ongoing psychological effects from the ordeal.^[67]

On May 22, 2009, a radio talk show host Erich "Mancow" Muller subjected himself to waterboarding to prove that it is not torture, but changed his mind because of the experience.^[68]

Sean Hannity, another commentator who claims that waterboarding is not torture and has described those who oppose waterboarding as "moral fools", had declared on April 22, 2009 that he would similarly subject himself to waterboarding to prove that it is not torture.^[69][70] Hannity has yet to subject himself to the technique even though Keith Olbermann and Jesse Ventura have made public wagers regarding Hannity's inability to withstand the treatment.^[70][71][72]

On January 15, 2009 the U.S. President-elect Barack Obama's nominee for Attorney General, Eric Holder, told his Senate confirmation hearing that waterboarding is torture and the President cannot authorize it.^{[73][74][75][76]} In a press conference on April 30, President Obama also stated, "I believe waterboarding was torture, and it was a mistake."^[77]

Controversy over description by U.S. media

In covering the debate on the use of waterboarding as an interrogation technique by the U.S. government, U.S. reporters had to decide whether to use the term "torture" or "enhanced interrogation techniques" to describe waterboarding. National Public Radio's ombudsman detailed this debate and why NPR had decided to refrain from using the word torture to describe waterboarding.^[78] Due to criticism of the policy by the media ^[79] and to NPR directly, a second piece was written to further explain their position and a desire to describe the technique rather than simply describe it as torture.^[80]

Examining the four newspapers with the highest daily circulation in the country (The New York Times, The Los Angeles Times, The Wall Street Journal and USA Today) a student group of the Joan Shorenstein Center on the Press, Politics and Public Policy found a significant and sudden shift in how the newspapers characterized waterboarding from the early 1930s until the modern story broke in 2004.^[81]

Historical uses

Spanish Inquisition

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".^[82] William Schweiker claims that the use of water as a form of torture also had profound religious significance to the Inquisitors.^[83]

Colonial times

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".^{[84][85][86][87]} 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".^{[86][87][88][89]}

American prisoners prior to World War II

An editorial in The New York Times of 6 April 1852, and a subsequent 21 April 1852 letter to the editors documents an incidence of waterboarding, then called "showering," or "hydropathic torture," in New York's Sing Sing prison of an inmate named Henry Hagan, who, after several other forms of beating and mistreatment, had his head shaved, and "certainly three, and possibly a dozen, barrels of water were poured upon his naked scalp." Hagan was then placed in a yoke.^[90] A correspondent listed only as "H" later wrote: "Perhaps it would be well to state more fully the true character of this 'hydropathic torture.' The stream of water is about one inch in diameter, and falls from a hight [sic] of seven or eight feet. The head of the patient is retained in its place by means of a board clasping the neck; the effect of which is, that the water, striking upon the board, rebounds into the mouth and nostrils of the victim, almost producing strangulation. Congestion, sometimes of the heart or lungs, sometimes of the brain, not unfrequently [sic] ensues; and death, in due season, has released some sufferers from the further ordeal of the water cure. As the water is administered officially, I suppose that it is not murder!" H. then went on to cite an 1847 New York law which limited prison discipline to individual confinement "upon a short allowance."^[91]

Prisoners in late 19th-century Alabama, and in Mississippi in the first third of the 20th century, also suffered waterboarding. In Alabama, in lieu of or in addition to other physical punishment, a "prisoner was strapped down on his back; then 'water [was] poured in his face on the upper lip, and effectually stop[ped] his breathing as long as there [was] a constant stream'."^[92] In Mississippi, the accused was held down, and water was poured "from a dipper into the nose so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession."^[93]

After the Spanish-American War of 1898

After the Spanish American War of 1898 in the Philippines, the U.S. army used waterboarding, called the "water cure" at the time. Reports of "cruelties" from soldiers stationed in the Philippines led to Senate hearings on U.S. activity there.

Testimony described the waterboarding of Tobeniano Ealdama "while supervised by ...Captain/Major Edwin F. Glenn (Glenn Highway)."^[94]

Elihu Root, United States Secretary of War, ordered a court martial for Glenn in April 1902."^[95] During the trial, Glenn "maintained that the torture of Ealdama was 'a legitimate exercise of force under the laws of war.'"^[94]

Though some reports seem to confuse Ealdama with Glenn,^[96] he was found guilty and "sentenced to a one-month suspension and a fifty-dollar fine," the leniency of the sentence due to the "circumstances" presented at the trial.^[94]

President Theodore Roosevelt privately rationalized the instances of "mild torture, the water cure" but publicly called for efforts to "prevent the occurrence of all such acts in the future." In that effort, he ordered the court-martial of General Jacob H. Smith on the island of Samar, "where some of the worst abuses had occurred." 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.^[97]

Roosevelt soon declared victory in the Philippines, and the public lost interest in "what had, only months earlier, been alarming revelations."^[94]

Police "Third degree"

The use of "third degree interrogation" techniques 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",^[98] 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.^[98] 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 to force a confession became a media issue and some courts began to deny obviously compelled confessions.^[99] 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.^[99]

World War II

During World War II both Japanese troops, especially the Kempeitai, and the officers of the Gestapo,^[100] the German secret police, used waterboarding as a method of torture.^[101] 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.^{[102][103][104]}

Chase J. Nielsen, one of the U.S. airmen who flew in the Doolittle raid following the attack on Pearl Harbor, was subjected to waterboarding by his Japanese captors.^[105] 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."^[33]

Algerian War

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,^[106] is one of only a few people to have described in writing the first-hand experience of being waterboarded. His book La Question, published in 1958 with a preface by Jean-Paul Sartre subsequently banned in France until the end of the Algerian War in 1962,^[107] 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.^[106][108]

Alleg stated that he had not broken under his ordeal of being waterboarded.^[109] Alleg has stated that the incidence of "accidental" death of prisoners being subjected to waterboarding in Algeria was "very frequent".^[34]

Vietnam War

Waterboarding was designated as illegal by U.S. generals in the Vietnam War.^[110] On January 21, 1968, The Washington Post published a controversial front-page photograph of two U.S soldiers and one South Vietnamese soldier participating in the waterboarding of a North Vietnamese POW near Da Nang.^[111] The article described the practice as "fairly common".^[111] 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.^[110][112] Another waterboarding photograph of the same scene, referred to as "water torture" in the caption, is also exhibited in the War Remnants Museum in Ho Chi Minh City.^[113]

Chile

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.^[114]

Khmer Rouge

Waterboard on display at the Tuol Sleng Genocide Museum: prisoners' feet were shackled to the bar on the right, wrists restrained by shackles on the left. Water was poured over the face using the watering can

The Khmer Rouge at the Tuol Sleng prison in Phnom Penh, Cambodia, used waterboarding as a method of torture between 1975 and 1979.^[115] The practice was documented in a painting by former inmate Vann Nath, which is on display in the Tuol Sleng Genocide Museum. The museum also has on display boards and other actual tools used for waterboarding during the Khmer Rouge regime.^[116][117]

Northern Ireland

Reports emerged in 2009 that the British Army had used waterboarding while interrogating suspects in Northern Ireland. It was allegedly used from March 1972, after Ted Heath, the Prime Minister at the time had banned five other torture methods. A former Royal Marines officer has also stated that he and his men were waterboarded at the end of counter-interrogation training during the late 1960s and early 1970s.^[118]

U.S. Military survival training

All special operations units in all branches of the U.S. military and the CIA's Special Activities Division ^[119] employ the use of a form of waterboarding as part of survival school (Survival, Evasion, Resistance and Escape) training, to psychologically prepare soldiers for the possibility of being captured by enemy forces.^[120]

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.^[121]

and continues to report:

many of the interrogation methods used in SERE training seem to have been applied at Guantánamo.^[121]

However, according to a declassified Justice Department memo attempting to justify torture which references a still-classified report of the CIA Inspector General on the CIA's use of waterboarding, among other "enhanced" interrogation techniques, the CIA applied waterboarding to detainees "in a different manner" than the technique used in SERE training:

The difference was in the manner in which the detainees' breathing was obstructed. At the SERE school and in the DoJ opinion, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator ... applied large volumes of water to a cloth that covered the detainee's mouth and nose. One of the psychiatrist / interrogators acknowledged that the Agency's use of the technique is different from that used in SERE training because it is 'for real' and is more poignant and convincing.^[122]

According to the DOJ memo, the IG Report observed that the CIA's Office of Medical Services (OMS) stated that "the experience of the SERE psychologist / interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant" and that "[c]onsequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe."^[122]

Contemporary use and the United States

Use by law enforcement

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 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".^[105] The sheriff was sentenced to ten years in prison, and the deputies to four years.^[105][112]

Use by intelligence officers

The 21 June 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.^[22]

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 20 July 2007, U.S. President George W. Bush signed an executive order banning torture during interrogation of terror suspects.^[123] 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.^[124] 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".^[125]

On 14 September 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, although a CIA spokesperson declined to discuss interrogation techniques, which he or she said "have been and continue to be lawful." The sources of this information were current and former CIA officials. ABC reported that waterboarding had been authorized by a 2002 Presidential finding.^[126] On 5 November 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."^[127] 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 10 December 2007.^[128][129]

On 6 February 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.^[10][130]

On 23 February 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.^[131]

On 15 October 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.^[132] 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.^[132] Until this point, the Bush administration had never been concretely tied to acknowledging the torture practices.

In an interview in January 2009, Cheney acknowledged the use of waterboarding to interrogate suspects and stated that waterboarding had been "used with great discrimination by people who know what they're doing and has produced a lot of valuable information and intelligence."^[133]

In December 2008, Robert Mueller, the Director of the FBI since July 5, 2001, had stated however that despite Bush Administration claims that waterboarding has "disrupted a number of attacks, maybe dozens of attacks", he does not believe that evidence obtained by the U.S. government through enhanced interrogation techniques such as waterboarding disrupted an attack.^[134][135]

On July 1, 2009, the US government announced that it was delaying again the scheduled release of declassified portions of a report by the CIA Inspector General in response to a civil lawsuit; the CIA report reportedly casts doubt on the effectiveness of the "enhanced" interrogation techniques employed by CIA interrogators, according to references to the report contained in several Bush-era Justice Department memos declassified in the Spring of 2009 by the US Justice Department.^{[122][136][137]}

Khalid Sheikh Mohammed

Khalid Sheikh Mohammed had water poured on him 183 times while being interrogated by the CIA. These 183 pours happened during an unknown amount of waterboarding sessions.^[138] 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.^[139]

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.^[140][141]

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?"^[142]

On 13 September 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.^[143]

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.^[144][145]

According to sources familiar with a private interview of Khalid Sheikh Mohammed, he claimed to have been waterboarded five times.^[139] 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".^[146] 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".^[139] After being subjected to waterboarding, Khalid Sheikh Mohammed claimed involvement in thirty-one terrorist plots.^[147]

On June 15, 2009, in response to a lawsuit by the ACLU, the government was forced to disclose a previously classified portion of a CIA memo written in 2006 which recounted how Mohammed told the CIA that he "made up stories" to stop from being tortured.^[148]

On June 2, 2010, while speaking to the Economic Club of Grand Rapids, Michigan, former President George W. Bush publicly confirmed his knowledge and approval of waterboarding Mohammed, saying “Yeah, we waterboarded Khalid Sheikh Mohammed...I'd do it again to save lives.” ^[149]

Abu Zubaida

Abu Zubaida was also waterboarded by the CIA.^[10]

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. Participating in his interrogation were two American psychologists, James Elmer Mitchell and R. Scott Shumate.^[150][151]

In December 2007, The Washington Post reported that there were some discrepancies regarding reports about the number 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.^[152] Kiriakou later admitted that he had no first hand knowledge of the interrogation and accused the CIA of using him to spread disinformation.^{[153][154][155][156]}

One of Abu Zubayda's interrogators, Ali Soufan, later testified to Congress that Zubayda was producing useful information in response to conventional interrogation methods and stopped providing accurate information in response to harsh techniques.^[157] Ali Soufon, also one of the FBI's most successful interrogators, explained, "When they are in pain, people will say anything to get the pain to stop. Most of the time, they will lie, make up anything to make you stop hurting them. That means the information you're getting is useless."^[157]

Obama administration

President Barack Obama banned the use of waterboarding and several other interrogation methods in January 2009. He reported that U.S. personnel must stick to the Army Field Manual guidelines.^[158] In early April 2009, the Obama administration released several classified Justice Department memos from the George W. Bush administration that discussed waterboarding.^[159]

Obama opposes the idea of legally prosecuting CIA personnel or CIA related people that committed waterboarding based upon legal advice provided by superiors. The American Civil Liberties Union has criticized his stance.^[159] In early April 2009, news reports stated that Obama would support an independent investigation over the issue as long as it would be bipartisan.^{[158][159][160]} On 23 April 2009, Press Secretary Robert Gibbs stated that the administration had changed its position and now opposes such an idea. The topic has been subject to heated internal debate within the White House.^[160]

National Intelligence Director Dennis Blair has stated that "high value information" came from waterboarding certain prisoners during the George W. Bush administration. He also commented that he could not know for sure whether or not other interrogation methods would have caused them to talk, had they been tried.^[158] In a administration memo that was publicly released, he wrote, "I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given."^[161]

An April poll by Rasmussen Reports found that 77 percent of voters had followed the story in the media and that 58 percent believe that releasing the memos compromised American national security. On the issue of a further investigation, 58 percent disagreed while 28% agreed.^[162]

Obama detailed his view on waterboarding and torture in a press conference on 29 April 2009.^[163]

Legality

International law

Manfred Nowak, United Nations special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

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 28 February 2008, upheld the absolute nature of the torture ban by ruling that international law permits no exceptions to it.^[164][165] 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".^[166] 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".^[167] 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.^[168] 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.^[169]

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.^[170]

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.^[171]

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 11 July 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",^[172] that the techniques applied to Abu Zubaydah were "categorically" torture,^[172] 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".^[172]

Shortly before the end of Bush's second term newsmedia in other countries were opining that under the United Nations Convention Against Torture the U.S. is obligated to hold those responsible to account under criminal law.^[173][174]

The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment– Professor Manfred Nowak– on 20 January 2009, remarked on German television that, following the inauguration of Barack Obama as new President, George W. Bush has lost his head of state immunity and under international law the U.S. is now mandated to start criminal proceedings against all those involved in violations of the UN Convention Against Torture.^[175][176] Law professor Dietmar Herz explained Novak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.^[175][176]

United States law

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."^[177] However, the United States has a historical record of regarding water torture as a war crime, and has prosecuted as war criminals individuals for the use of such practices in the past.

In 1947, the United States prosecuted a Japanese civilian who had served in World War II as an interpreter for the Japanese military, Yukio Asano, for "Violation of the Laws and Customs of War," asserting that he "did unlawfully take and convert to his own use Red Cross packages and supplies intended for" prisoners, but, far worse, that he also "did willfully and unlawfully mistreat and torture" prisoners of war. Asano received a sentence of 15 years of hard labor.^[111] The charges against Asano included "beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward."^[178] The specifications in the charges with regard to "water torture" consisted of "pouring water up [the] nostrils" of one prisoner, "forcing water into [the] mouths and noses" of two other prisoners, and "forcing water into [the] nose" of a fourth prisoner.^[179]

Following the attacks of September 11, 2001, several memoranda, including the Bybee memo, were written analyzing the legal position and possibilities in the treatment of prisoners.^[180] The memos, known today as the "torture memos,"^[181] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.^[182][183] 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.^[184][185]

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,^[43] 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.^[186] Nevertheless Steven G. Bradbury, acting head of the U.S. 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.^[187]

In addition, both under the War Crimes Act^[188] 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.^[189] 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."^[190]

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!^[191]

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."^[192][193]

Both houses of the United States Congress approved a bill by February 2008 that would ban waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for Fiscal Year 2008. As he promised, President Bush vetoed the legislation on March 8. His veto applied to the authorization for the entire intelligence budget for the 2008 fiscal year, but he cited the waterboarding ban as the reason for the veto.^[194] It appears unlikely that bill supporters will be able to gather enough votes to overturn the veto.^[195]

On January 22, 2009 President Barack Obama signed an executive order that requires both U.S. military and paramilitary organizations to use the Army Field Manual as the guide on getting information from prisoners, moving away from the Bush administration tactics.^[196]

See also

• At the Center of the Storm: My Years at the CIA
• Command responsibility
• Department of Defense Directive 2310
• Dunking
• Enhanced interrogation techniques
• Torture and the United States
• Water cure
• Water torture

References

Further reading

• Alleg, Henri (2006; original French version published in 1958). The Question. Preface by Jean-Paul Sartre. Translated by John Calder. Bison Books. ISBN 0803259603. ISBN 9780803259607.
• Bentham, Jeremy (2009 (1775)). The Rationale of Punishment, Book II, Chapter I, "Simple Afflictive Punishments", p.102. New York: Prometheus Books. ISBN 978-1-59102-627-3. 
• Jones, Ishmael (2008, 2010). The Human Factor: Inside the CIA's Dysfunctional Intelligence Culture. New York: Encounter Books. ISBN 978-1594033827. 
• McCoy, Alfred W. (2006). A question of torture: CIA interrogation, from the Cold War to the War on Terror. New York: Metropolitan Books. ISBN 0-8050-8041-4. 
• Human Rights Watch. (2006). Human Rights Watch World Report 2006 (Human Rights Watch World Report). New York: Seven Stories Press. ISBN 1-58322-715-6. 
• Paust, Jordan L. (2007). Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror. Cambridge, UK: Cambridge University Press. ISBN 0-521-88426-8. 
• Tushnet, Mark V.; Martin, Francisco Forrest; Stephen J. Schnably; Wilson, Richard; Simon, Jonathan (2006). International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis. Cambridge, UK: Cambridge University Press. ISBN 0-521-85886-0. 
• Report of the Committee Against Torture: Thirty-fifth Session (14 - November 25, 2005); Thirty-sixth Session (1-May 19, 2006). United Nations Pubns. ISBN 92-1-810280-X. 
• Welch, Michael (2006). Scapegoats of September 11th: Hate Crimes & State Crimes in the War on Terror (Critical Issues in Crime and Society). New Brunswick, NJ: Rutgers. ISBN 0-8135-3896-3. 
• Williams, Kristian (2006). American methods: torture and the logic of domination. Boston: South End Press. ISBN 0-89608-753-0. 

External links

• Hitchens, Christopher (August 2008). "Believe Me, It’s Torture". Vanity Fair. http://www.vanityfair.com/politics/features/2008/08/hitchens200808. Retrieved 24 April 2009. 
• Lomax, Eric (4 March 2008). "Waterboarding: the most horrific experience of my life". The Times (London). http://women.timesonline.co.uk/tol/life_and_style/women/the_way_we_live/article3476414.ece. Retrieved 24 April 2009. 
• Warrick, Joby; Dan Eggen (9 December 2007). "Hill Briefed on Waterboarding in 2002". The Washington Post: p. A01. http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664.html. Retrieved 24 April 2009. 
• Safire, William (9 March 2008). "Waterboarding". The New York Times. http://www.nytimes.com/2008/03/09/magazine/09wwlnSafire-t.html. Retrieved 4 June 2009. 
• Vanity Fair video of waterboarding, July 2008
• Former U.S. Navy interrogator on waterboarding
• Victim of waterboarding talks: veteran French journalist Henri Aleg
• MSNBC commentator Keith Olbermann on waterboarding, November 2007
• Mancow Discusses Being Waterboarded by Nicholas Graham, The Huffington Post, May 26, 2009
• Waterboarding for dummies by Mark Benjamin, Salon.com, Mar 9, 2010