Wednesday, November 07, 2007

More on waterboarding as torture

Ed Brayton at Dispatches from the Culture Wars observes that "the US has not only always considered waterboarding to be torture, but has aggressively prosecuted other nation's for war crimes for using that technique on American POWs," quoting Judge Evan Wallach:

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding....

As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "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."

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

And in the comments at Ed's blog, tacitus notes the following from a contributing editor at the National Review Online, Deroy Murdock:

While the White House must beware not to inform our enemies what to expect if captured, today's clueless anti-waterboarding rhetoric merits this tactic's vigorous defense. Waterboarding is something of which every American should be proud.


UPDATE (February 14, 2008): Happy Valentine's Day. The current head of the Department of Justice's Office of Legal Counsel, Steven G. Bradbury, USA Today reports, says that waterboarding is illegal and that "There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law." The military banned such practices in 2006. Waterboarding is still "in the CIA toolkit" but requires approval by the president and the attorney general in order to be used, and has allegedly not been used since 2003. Congress is considering legislation to ban the CIA from using it at all; CIA Director Michael Hayden says current law already casts doubt on whether the CIA can legally use it.

UPDATE (March 9, 2008): George W. Bush has vetoed legislation which would have explicitly banned waterboarding from the CIA repertoire.

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