November 4, 2007

Waterboarding Used to Be a Crime

Yeah, I can't let this go. When your own country has become evil, it is hard to just look the other way. Former JAG Evan Wallach writes about teaching soldiers about waterboarding and other torture. There was no mystery about torture--it was illegal. Illegal, that is, until George W. Bush, Richard Cheney, and Alberto Gonzales got their hands on our government:
"The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.

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.""
So we fought the big war to defeat Fascism only to get a morally challenged President who drank his way through college?


BTW, some have suggested that Bushco can't call torture illegal because it would result in prosecutions throughout the CIA and even the military. But Jack Balkin says that is wrong, and Scott Horton agrees:
"The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable wording of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise. "

Balkin nails it:
"The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just 'a dunk in the water' in Vice President Cheney's terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers."
George W. Bush's Administration of Liars and Torturers (brought to you by James Dobson and Focus on the Family). Now, there is a t-shirt! It would be comical if it weren't so damn serious. The next time you hear a conservative rant about opposing evil or fascism or islamofascism--just remember that they have aided and abetted the transformation of our judicial system into one that endorses the torture of others.


steve s said...

I have been engaged in an ongoing discussion on another board about waterboarding and torture. The lack of any widespread participation in an area of that board, which is usually very active, tells me that the topic is one that doesn't seem to generate that much interest.

For some topics, my debate skills are not all that bad. I feel that I can make a logical point most of the time. For some reason I don't understand, this topic has failed to bring out anyone that can logically argue for the use of waterboarding. The 'pro' arguments have fallen into two categories:

1) Waterboarding is justified because the enemy is very very very bad.

2) Waterboarding is ok because it is not really torture. It is like fraternity hazing or listening to Eminem.

The first argument seems ridiculous. I can't think of an enemy in the entire history of our country that was completely honorable. There were atrocities committed in the Civil War, WWI, WWII, Korea, Vietnam, and the various Indian Wars. The conduct of the enemy never justifies bad conduct on our part.

The second argument at least has some point. If someone can convince me that waterboarding is not torture, then I can understand it's use, but so far I am convinced that it is torture. I mentioned the US code that deals with torture. If you haven't looked it up, here it is:

18 U.S.C. 2340a

(a) Offense. - Whoever outside the United States commits or
attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to
any person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. - There is jurisdiction over the activity
prohibited in subsection (a) if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged

(c) Conspiracy. - A person who conspires to commit an offense
under this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for the
offense, the commission of which was the object of the conspiracy.

The definition of torture:

As used in this chapter -
(1) "torture" means an act committed by a person acting under
the color of law specifically intended to inflict severe physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his
custody or physical control;
(2) "severe mental pain or suffering" means the prolonged
mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or

There is also the Geneva Conventions, UN Convention Against Torture, and several other treaties that I can't remember. The US Army specifically mentions waterboarding in it's latest field manual as a a procedure that is forbidden. The US State Department, in 2005, condemned Tunisia's use of simulated drowning (submersion of the head in water) as torture.

I suppose that some people are comfortable with any action or deprivation of liberty if it is the name of fighting terror.

Streak said...

Steve, good for you trying to engage with people about this topic. As you obviously can tell from my blog, I can't stop. It amazes me that otherwise moral people either ignore or simply endorse a technique that we have treated as war crimes in other situations.

Their first point (as you put it) is simply unconscionable and patently immoral. As Ubub and I have said over and over, if our morality is defined by who they are, then they won. As you note, warfare has always included atrocities on the other side (as well as ours) and that has never justified our use of war crimes.

I think we can thank Bush and Cheney for this little moral decline--and what a nice one it is, right? We now have Americans arguing for torture and war crimes because of the immorality of those we fight. Amazing. And lets not forget, that we have certainly aided or abetted the torture of innocent people along the way. That is always a nice hallmark for a democracy, no?

The second one is simply ignorant, and I can tell you that anyone who is actually informed and certainly anyone who has experience with interrogation would disagree. Of course, water torture has always been the tool of choice for the sadist who wants to be able to deny his evil. Unlike vivisection or the rack, or other mutilation tortures, this one leaves no visible marks.

But when you read those who undergo it, even those who do so willingly as did the former assistant AG, and you find that it is a horrifying experience. As the former JAG officer described it:

The media usually characterize the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted.

You should remind your other boardmates that their defense of waterboarding puts them in really nice company--the Nazi regime, the KGB, the Egyptians, etc.

steve s said...

"You should remind your other boardmates that their defense of waterboarding puts them in really nice company--the Nazi regime, the KGB, the Egyptians, etc."

I may have to, but I will admit that it is difficult to keep my cool. I have gotten into some nasty exchanges in the past and have regretted it. I now try to ask myself if I have contributed something to the discussion, or have I just ranted, before I post.

Streak said...

I now try to ask myself if I have contributed something to the discussion, or have I just ranted, before I post.

Heh. Obviously, I am the wrong person to comment on that! :)