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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."<ref>[[Sosa v. Alvarez-Machain]], {{ussc|542|692|2004}}.</ref> 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]].<ref name=walter20061005/> 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."<ref>{{cite web |url=http://socrates.berkeley.edu/~warcrime/Japan/Yokohama/Reviews/Yokohama_Review_Asano.htm |title=Yukio Asano |work=Case Synopses from Judge Advocate's Reviews: Yokohama Class B and C War Crimes Trials |publisher=UC Berkeley War Crimes Studies Center |year=2007 |accessdate={{Date|2009-04-21|mdy}}}}</ref> 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.<ref name=murphy20080228/><ref name=sceats20080228/> |
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."<ref>[[Sosa v. Alvarez-Machain]], {{ussc|542|692|2004}}.</ref> 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]].<ref name=walter20061005/> 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."<ref>{{cite web |url=http://socrates.berkeley.edu/~warcrime/Japan/Yokohama/Reviews/Yokohama_Review_Asano.htm |title=Yukio Asano |work=Case Synopses from Judge Advocate's Reviews: Yokohama Class B and C War Crimes Trials |publisher=UC Berkeley War Crimes Studies Center |year=2007 |accessdate={{Date|2009-04-21|mdy}}}}</ref> 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.<ref name=murphy20080228/><ref name=sceats20080228/> |
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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.<ref name=nsa20040713>{{cite web |url=http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/ |title=The Interrogation Documents: Debating U.S. Policy and Methods |publisher=[[National Security Archive]] |date={{Date|2004-07-13|mdy}} |accessdate={{Date|2009-04-21|mdy}}}}</ref> The memos, known today as the "torture memos,"<ref>http://www.thenation.com/doc/20080428/gillers</ref> advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.<ref name=isikoff20040517>{{cite news |first=Michael |last=Isikoff |authorlink=Michael Isikoff |date={{Date|2004-05-17|mdy}} |title=Memos Reveal War Crimes Warnings |url=http://www.newsweek.com/id/105057 |work=[[Newsweek]] |accessdate={{Date|2009-04-21|mdy}}}}</ref><ref name=holtzman20050628>{{cite news |first=Elizabeth |last=Holtzman |authorlink=Elizabeth Holtzman |date={{Date|2005-06-28|mdy}} |title=Torture and Accountability |url=http://www.thenation.com/doc/20050718/holtzman |work=[[The Nation]] |accessdate={{Date|2009-04-21|mdy}}}}</ref> 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.<ref name=norton-taylor20060217>{{cite news |first=Richard |last=Norton-Taylor |authorlink=Richard Norton-Taylor |coauthors=Suzanne Goldenberg |date={{Date|2006-02-17|mdy}} |title=Judge's anger at US torture |url=http://www.guardian.co.uk/uk/2006/feb/17/politics.world |work=[[The Guardian]] |accessdate={{Date|2009-04-21|mdy}}}}</ref><ref name=jamail20060309>{{cite news |first=Dahr |last=Jamail |authorlink=Dahr Jamail |date={{Date|2006-03-09|mdy}} |title=Torture as National Policy |url=http://www.alternet.org/waroniraq/33184/ |publisher=[[AlterNet]] |accessdate={{Date|2009-04-21|mdy}}}}</ref> |
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.<ref name=nsa20040713>{{cite web |url=http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/ |title=The Interrogation Documents: Debating U.S. Policy and Methods |publisher=[[National Security Archive]] |date={{Date|2004-07-13|mdy}} |accessdate={{Date|2009-04-21|mdy}}}}</ref> The memos, known today as the "torture memos,"<ref>{{cite news |first=Stephen |last=Gillers |authorlink=Stephen Gillers |date={{Date|2009-04-09|mdy}} |title=The Torture Memo |url=http://www.thenation.com/doc/20080428/gillers |work=[[The Nation]] |accessdate={{Date|2009-04-28|mdy}}}}</ref> advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.<ref name=isikoff20040517>{{cite news |first=Michael |last=Isikoff |authorlink=Michael Isikoff |date={{Date|2004-05-17|mdy}} |title=Memos Reveal War Crimes Warnings |url=http://www.newsweek.com/id/105057 |work=[[Newsweek]] |accessdate={{Date|2009-04-21|mdy}}}}</ref><ref name=holtzman20050628>{{cite news |first=Elizabeth |last=Holtzman |authorlink=Elizabeth Holtzman |date={{Date|2005-06-28|mdy}} |title=Torture and Accountability |url=http://www.thenation.com/doc/20050718/holtzman |work=[[The Nation]] |accessdate={{Date|2009-04-21|mdy}}}}</ref> 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.<ref name=norton-taylor20060217>{{cite news |first=Richard |last=Norton-Taylor |authorlink=Richard Norton-Taylor |coauthors=Suzanne Goldenberg |date={{Date|2006-02-17|mdy}} |title=Judge's anger at US torture |url=http://www.guardian.co.uk/uk/2006/feb/17/politics.world |work=[[The Guardian]] |accessdate={{Date|2009-04-21|mdy}}}}</ref><ref name=jamail20060309>{{cite news |first=Dahr |last=Jamail |authorlink=Dahr Jamail |date={{Date|2006-03-09|mdy}} |title=Torture as National Policy |url=http://www.alternet.org/waroniraq/33184/ |publisher=[[AlterNet]] |accessdate={{Date|2009-04-21|mdy}}}}</ref> |
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In its 2005 [[Country Reports on Human Rights Practices]], the [[United States Department of State|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,<ref name=tunisia/> and critics of waterboarding{{Who|date=April 2009}} draw parallels between the two techniques, citing the similar usage of water on the subject.{{Fact|date=April 2009}} |
In its 2005 [[Country Reports on Human Rights Practices]], the [[United States Department of State|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,<ref name=tunisia/> and critics of waterboarding{{Who|date=April 2009}} draw parallels between the two techniques, citing the similar usage of water on the subject.{{Fact|date=April 2009}} |
Revision as of 13:58, 28 April 2009
- For the aquatic sport known as "Water boarding", see Surfing.
Waterboarding is a form of torture[1][2] that consists of immobilizing the victim on his or her back with the head inclined downwards, and then pouring water over the face and into the breathing passages. By forced suffocation and inhalation of water, the subject experiences drowning and is caused to believe they are about to die.[3] It is considered a form of torture by legal experts,[4][5] politicians, war veterans,[6][7] intelligence officials,[8] military judges,[9] and human rights organizations.[10][11] As early as the Spanish Inquisition it was used for interrogation purposes, to punish and intimidate, and to force confessions.[12]
In contrast to submerging the head face-forward in water, waterboarding precipitates a gag reflex almost immediately.[13] The technique does not inevitably cause lasting physical damage. 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, ultimately, death.[4] Adverse physical consequences can start manifesting months after the event; psychological effects can last for years.[14]
In 2007 it was reported that the CIA was using waterboarding on extrajudicial prisoners and that the United States Department of Justice had authorized the procedure,[15][16] a revelation that sparked a worldwide political scandal. Al-Qaeda suspects upon whom the CIA is known to have used waterboarding include Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri.[17][18]
Incoming President Barack Obama banned the use of waterboarding. In April 2009 the Department of Defense refused to say whether it was still used for training purposes. [19]
Technique
The waterboarding technique was characterized in 2005 by former CIA director Porter J. Goss as a "professional interrogation technique".[10] 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",[20] another states that "cellophane is wrapped over the prisoner's face and water is poured over him".[13]
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." [21]
Dating back to the Spanish Inquisition, the technique has been favored because, unlike most other torture techniques, it produces no marks on the body.[22] CIA officers who have subjected themselves to the technique have lasted an average of 14 seconds before caving in.[13]
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.[13] 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.[13]
Reported demonstrations
Two televised segments, one from Fox News and one from Current TV, demonstrate a waterboarding technique.[23][24] 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.
Mental and physical effects
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".[14] 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".[25]
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.[4]
Etymology
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.[26][27][28]
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".[29] Dershowitz later stated to New York Times columnist William Safire that "when I first used the word, nobody knew what it meant".[28]
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".[27][28] 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'".[28]
Darius Rejali, a professor at Reed College and the author of the 2007 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".[28]
Classification as torture
Waterboarding is considered to be torture by a wide range of authorities, including legal experts,[4][5][30] politicians, war veterans,[6][7] intelligence officials,[8] military judges,[9] and human rights organizations.[10][11] 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."[31] Arguments have been put forward that it might not be torture in all cases, or that it is unclear.[32][33][34][35] 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.[36]
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.[37]
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".[38] William Schweiker claims that the use of water as a form of torture also had profound religious significance to the Inquisitors.[39]
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".[40][41][42][43] 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".[42][43][44][45]
19th century prisons
An editorial in The New York Times of April 6, 1852, and a subsequent April 21, 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.[46] 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."[47]
After the Spanish-American War of 1898
After the Spanish American War of 1898 in the Philippines, the US Army used waterboarding which was called the "water cure" at the time. Reports of "cruelties" from soldiers stationed in the Philippines led to Senate Hearings on US activity in the Philippines.
Testimony described the waterboarding of Tobeniano Ealdama "while supervised by …Captain/Major Edwin F. Glenn (Glenn Highway)."[This quote needs a citation]
Elihu Root, United States Secretary of War, ordered a court martial for Glenn in April 1902."[48] During the trial, Glenn "maintained that the torture of Ealdama was 'a legitimate exercise of force under the laws of war.'"[49]
Though some reports seem to confuse Ealdama with Glenn,[50] 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.[49]
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.[51]
Roosevelt soon declared victory in the Philippines, and the public lost interest in "what had, only months earlier, been alarming revelations."[49]
World War II
During World War II both Japanese troops, especially the Kempeitai, and the officers of the Gestapo,[52] the German secret police, used waterboarding as a method of torture.[53] 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.[54][55][56]
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.[57] 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]
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,[58] 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,[59] 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.[58][60]
Alleg stated that he had not broken under his ordeal of being waterboarded.[61] Alleg has stated that the incidence of "accidental" death of prisoners being subjected to waterboarding in Algeria was "very frequent".[6]
Vietnam War
Waterboarding was designated as illegal by U.S. generals in the Vietnam War.[62] 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.[63] The article described the practice as "fairly common".[63] 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.[62][64] Another waterboarding photograph of the same scene is also exhibited in the War Remnants Museum in Ho Chi Minh City.[65]
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.[66]
Khmer Rouge
The Khmer Rouge at the Tuol Sleng prison in Phnom Penh, Cambodia, used waterboarding as a method of torture between 1975 and 1979.[67] 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.[68][69]
U.S. Military survival training
All special operations units in all branches of the U.S. military employ the use of waterboarding as part of survival school (Survival, Evasion, Resistance and Escape) training, to psychologically prepare soldiers for the eventuality of being captured by the enemy forces.[2]
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.[70]
and continues to report:
many of the interrogation methods used in SERE training seem to have been applied at Guantánamo.[70]
Waterboarding in the 21st Century
Legality
International law
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.[71][72] 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".[73] 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".[74] 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.[75] 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.[76]
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.[77]
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.[78]
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",[79] that the techniques applied to Abu Zubaydah were "categorically" torture,[79] 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".[79]
Shortly before the end of Bush's second term newsmedia in other countries were opining that under the United Nations Convention Against Torture the US is obligated to hold those responsible to account under criminal law.[80][81]
The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment– Professor Manfred Nowak– on January 20, 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.[82][83] 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.[82][83]
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."[84] 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.[63] 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."[85] 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.[71][72]
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.[86] The memos, known today as the "torture memos,"[87] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.[88][89] 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.[90][91]
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,[36] and critics of waterboarding[who?] draw parallels between the two techniques, citing the similar usage of water on the subject.[citation needed]
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.[92] 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.[93]
In addition, both under the War Crimes Act[94] 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.[95] 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."[96]
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![97]
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."[98][99]
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.[100] It appears unlikely that bill supporters will be able to gather enough votes to overturn the veto.[101]
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.[102]
See also
- At the Center of the Storm: My Years at the CIA, the memoir of former CIA director George Tenet
- Command responsibility, the doctrine of hierarchical accountability in cases of war crimes
- Department of Defense Directive 2310, which prohibits the use of waterboarding
- Dunking, a form of torture or punishment in which the victim is submerged in water
- Enhanced interrogation techniques, a term used by the Bush administration for aggressively extracting information from captives in the War on Terror
- Torture and the United States
- Water cure, a form of water torture in which the victim must drink large quantities of water
- Water torture, covering several varieties of torture involving water
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.
- 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.
{{cite book}}
: CS1 maint: multiple names: authors list (link) - 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.
References
- ^ Waterboarding is considered to be torture by a wide range of authorities, including legal experts, politicians, war veterans, intelligence officials, military judges, and human rights organizations (See Classification as torture for more information). In the United States in recent years, arguments have been put forward that waterboarding might not be torture in all cases after it was revealed that this technique was used to interrogate suspects in relation to the war on terror (See Controversy over classification in the United States for more information).
- ^ a b Eban, Katherine (July 17, 2007). "Rorschach and Awe". Vanity Fair. Retrieved December 17, 2007.
- ^ White, Josh (November 8, 2007). "Waterboarding Is Torture, Says Ex-Navy Instructor". The Washington Post. Retrieved December 17, 2007.
- ^ a b c d "Open Letter to Attorney General Alberto Gonzales". Human Rights Watch. April 5, 2006. Retrieved April 17, 2009.
- ^ a b Davis, Benjamin (October 8, 2007). "Endgame on Torture: Time to Call the Bluff". JURIST. Retrieved December 18, 2007.
- ^ a b c "French Journalist Henri Alleg Describes His Torture Being Waterboarded by French Forces During Algerian War". Democracy Now!. November 5, 2007. Retrieved December 18, 2007.
- ^ a b McCain, John (November 21, 2005). "Torture's Terrible Toll". Newsweek. Retrieved April 17, 2009.
- ^ a b Grey, Stephen (2006). Ghost plane: the true story of the CIA torture program. New York City: St. Martin's Press. p. 226. ISBN 0-312-36023-1. OCLC 70335397.
As one former CIA official, once a senior official for the directorate of operations, told me: 'Of course it was torture. Try it and you'll see.' Another, also a former higher-up in the directorate of operations, told me: 'Yes, it's torture…'
- ^ a b Bell, Nicole (November 2, 2007). "Retired JAGs Send Letter To Leahy: 'Waterboarding is inhumane, it is torture, and it is illegal.'". Crooks and Liars. Retrieved 17 April 2009.
- ^ a b c "CIA Whitewashing Torture". Human Rights Watch. November 21, 2005. Retrieved April 17, 2009.
- ^ a b "Amnesty International Response to Cheney's 'No-Brainer' Comment" (Press release). Amnesty International. October 26, 2006. Retrieved April 17, 2009.
- ^ Shane, Scott (November 7, 2007). "A Firsthand Experience Before Decision on Torture". The New York Times. Retrieved April 17, 2009.
- ^ a b c d e Ross, Brian (November 18, 2007). "CIA's Harsh Interrogation Techniques Described". ABC News. Retrieved April 17, 2009.
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- ^ "Secret U.S. Endorsement of Severe Interrogations". The New York Times. October 4, 2007. Retrieved April 17, 2009.
- ^ Price, Caitlin (February 5, 2008). "CIA chief confirms use of waterboarding on 3 terror detainees". JURIST. Retrieved April 17, 2009.
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- ^ Keller, Allen S. (September 25, 2007). "Water-boarding" (PDF). Statement by Allen S. Keller at the Hearing on U.S. Interrogation Policy and Executive Order 13440. United States Senate Select Committee on Intelligence. Retrieved April 17, 2009.
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- ^ a b c d e Safire, William (March 9, 2008). "On Language: Waterboarding". The New York Times. Retrieved April 17, 2009.
- ^ Dershowitz, Alan (May 15, 2004). "Covering up the coverup". Boston Globe. Retrieved April 17, 2009.
- ^ a b Wallach, Evan (2007). "Drop by Drop: Forgetting the History of Water Torture in U.S. Courts". The Columbia Journal of Transnational Law. 45 (2): 468–506. ISSN 0010-1931. A rough draft is also available.
- ^ "UK 'must check' US torture denial". BBC News. July 19, 2008. Retrieved April 17, 2009.
- ^ McCarthy, Andrew C. (December 10, 2007). "Waterboarding and Torture". National Review. Retrieved April 17, 2009.
- ^ Eggen, Dan (October 31, 2007). "Mukasey Losing Democrats' Backing". Washington Post. p. A01. Retrieved April 17, 2009.
- ^ Cooper, Michael (October 25, 2007). "In His Words: Giuliani on Torture". Retrieved April 17, 2009.
- ^ "Congressman Poe". Glenn Beck Program. December 12, 2007. Retrieved April 17, 2009.
- ^ a b Bureau of Democracy, Human Rights, and Labor (March 8, 2006). "Tunisia". 2005 County Reports on Human Rights Practices. Retrieved April 17, 2009.
{{cite web}}
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- ^ Scott, George Ryley (2004). The History of Torture Throughout the Ages. London: Kegan Paul. p. 172. ISBN 0-7103-0837-X. OCLC 51963457.
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- ^ Milton, Giles (1999). Nathaniel's nutmeg: how one man's courage changed the course of history. London: Hodder & Stoughton. p. 238. ISBN 0-340-69675-3. OCLC 41580815.
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- ^ East India Company (1624). A true relation of the vniust, cruell, and barbarous proceedings against the English at Amboyna in the East-Indies. London: H. Lownes. p. 11. OCLC 282074622.
- ^ Milton, Giles (1999). Nathaniel's nutmeg: how one man's courage changed the course of history. London: Hodder & Stoughton. pp. 328–329. ISBN 0-340-69675-3. OCLC 41580815.
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- ^ a b c Kramer, Paul (February 25, 2008). "The Water Cure". The New Yorker. Retrieved April 18, 2009.
- ^ Tran, Mark (October 27, 2006). "Cheney endorses simulated drowning". The Guardian. Retrieved April 18, 2009.
- ^ Rezneck, Daniel A. (October 31, 2007). "Roosevelt was right: Waterboarding wrong". The Politico. Retrieved April 18, 2009.
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- ^ Delarue, Jacques (1964). The Gestapo: A History of Horror. New York City: William Morrow and Company. p. 234. OCLC 301833480.
- ^ Sidhu, H. (1991). The bamboo fortress: true Singapore war stories. Singapore: Native Publications. p. 113. ISBN 981-00-3101-7. OCLC 25961588.
- ^ Au, Waipang (1997). "Sime Road Camp". Yawning Bread. Retrieved April 18, 2009.
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- ^ Wallach, Evan (November 4, 2007). "Waterboarding Used to Be a Crime". The Washington Post. p. B01. Retrieved April 18, 2009.
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- ^ Alleg, Henri (2006) [1958]. The question. Lincoln, Nebraska: University of Nebraska Press. p. 49. ISBN 0-8032-5960-3. OCLC 62109991.
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- ^ Weiner, Eric (November 3, 2007). "Waterboarding: A Tortured History". National Public Radio. Retrieved December 19, 2007.
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- ^ a b Sceats, Sonya (February 28, 2008). "Saadi — The Ban on Torture Is Absolute". Opinio Juris. Retrieved April 21, 2009.
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- ^ "Status". Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Retrieved April 27, 2009.
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- ^ "Hearing of the Senate Armed Services Commmittee: Annual Threat Assessment" (PDF). Director of National Intelligence. February 27, 2008. p. 31. Retrieved April 21, 2009.
- ^ a b c Shane, Scott (July 11, 2008). "Book Cites Secret Red Cross Report of C.I.A. Torture of Qaeda Captives". The New York Times. Retrieved April 21, 2009.
- ^ Horton, Scott (January 19, 2009). "Overseas, Expectations Build for Torture Prosecutions". Harper's Magazine. Retrieved April 21, 2009.
- ^ Kaleck, Wolfgang (January 19, 2009). "Die leere Anklagebank". Süddeutsche Zeitung (in German). Retrieved April 21, 2009.
{{cite news}}
: CS1 maint: unrecognized language (link) - ^ a b Marinero, Ximena (January 21, 2009). "UN torture investigator calls on Obama to charge Bush for Guantanamo abuses". JURIST. Retrieved April 21, 2009.
- ^ a b Horton, Scott (January 21, 2009). "UN Rapporteur: Initiate criminal proceedings against Bush and Rumsfeld now". Harper's Magazine. Retrieved April 21, 2009.
- ^ Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
- ^ "Yukio Asano". Case Synopses from Judge Advocate's Reviews: Yokohama Class B and C War Crimes Trials. UC Berkeley War Crimes Studies Center. 2007. Retrieved April 21, 2009.
- ^ "The Interrogation Documents: Debating U.S. Policy and Methods". National Security Archive. July 13, 2004. Retrieved April 21, 2009.
- ^ Gillers, Stephen (April 9, 2009). "The Torture Memo". The Nation. Retrieved April 28, 2009.
- ^ Isikoff, Michael (May 17, 2004). "Memos Reveal War Crimes Warnings". Newsweek. Retrieved April 21, 2009.
- ^ Holtzman, Elizabeth (June 28, 2005). "Torture and Accountability". The Nation. Retrieved April 21, 2009.
- ^ Norton-Taylor, Richard (February 17, 2006). "Judge's anger at US torture". The Guardian. Retrieved April 21, 2009.
{{cite news}}
: Unknown parameter|coauthors=
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- ^ Alfano, Sean (September 6, 2007). "U.S. Army Bans Torture Of Prisoners". CBS News. Retrieved April 21, 2009.
{{cite news}}
: Unknown parameter|coauthors=
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suggested) (help) - ^ Murphy, Brett (February 14, 2008). "Waterboarding not authorized under current law: DOJ to House panel". JURIST. Retrieved April 20, 2009.
- ^ Cohn, Marjorie (February 15, 2008). "Injustice at Guantanamo: Torture Evidence and the Military Commissions Act". JURIST. Retrieved April 20, 2009.
- ^ Samuel, Alexandria (April 23, 2005). "Rights group calls for special prosecutor to investigate abuse roles of Rumsfeld, Tenet". JURIST. Retrieved April 20, 2009.
- ^ Horton, Scott (November 7, 2005). "The Return of Carl Schmitt". Balkinization. Retrieved April 21, 2009.
- ^ Paust, Jordan (February 18, 2008). "Just Following Orders? DOJ Opinions and War Crimes Liability". JURIST. Retrieved April 20, 2009.
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- ^ "Durbin and Whitehouse: Justice Department is Investigating Torture Authorization" (Press release). Dick Durbin. February 22, 2008. Retrieved April 20, 2009.
- ^ Eggen, Dan (March 8, 2008). "Bush Announces Veto of Waterboarding Ban". The Washington Post. Retrieved April 21, 2009.
- ^ Cowan, Richard (March 8, 2008). "Bush vetoes bill outlawing CIA waterboarding". Reuters. Retrieved April 21, 2009.
{{cite news}}
: Unknown parameter|coauthors=
ignored (|author=
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External links
- Hitchens, Christopher (2008). "Believe Me, It's Torture". Vanity Fair. Retrieved April 24, 2009.
{{cite news}}
: Unknown parameter|month=
ignored (help) - Lomax, Eric (March 4, 2008). "Waterboarding: the most horrific experience of my life". The Times. Retrieved April 24, 2009.
- Warrick, Joby (December 9, 2007). "Hill Briefed on Waterboarding in 2002". The Washington Post. p. A01. Retrieved April 24, 2009.
{{cite news}}
: Unknown parameter|coauthors=
ignored (|author=
suggested) (help)
- Video