User:LexCorp/Waterboarding in the 21st century

Back up of Waterboarding in the 21st century in case AfD is successful in orther to save mergeable material. --LexCorp (talk) 22:51, 27 February 2010 (UTC)

For the aquatic sport known as "Water boarding", see Surfing.

Main article: Waterboarding

See also: Uses of torture in recent times

Waterboarding is a form of torture 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. It is considered a form of torture by legal experts, politicians, war veterans, intelligence officials, military judges, and human rights organizations. As early as the Spanish Inquisition it was used for interrogation purposes, to punish and intimidate, and to force confessions.

In contrast to submerging the head face-forward in water, waterboarding precipitates a gag reflex almost immediately. 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. Adverse physical consequences can start manifesting months after the event; psychological effects can last for years.

In 2007 it was reported that the Central Intelligence Agency (CIA) was using waterboarding on extrajudicial prisoners and that the United States Department of Justice had authorized the procedure, 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.

Incoming President Barack Obama banned the use of waterboarding. In April 2009 the United States Department of Defense refused to say whether it was still used for training purposes.

Technique

The waterboarding technique was characterized in 2005 by former CIA director Porter J. Goss as a "professional interrogation technique". 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", another states that "cellophane is wrapped over the prisoner's face and water is poured over him".

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."

Dating back to the Spanish Inquisition, the technique has been favored because, unlike most other torture techniques, it produces no marks on the body. CIA officers who have subjected themselves to the technique have lasted an average of 14 seconds before caving in.

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. 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.

Classification as torture

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. 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." Arguments have been put forward that it might not be torture in all cases, or that it is unclear. 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.

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.

Controversy over classification as torture in the United States

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.

Subsequently, the United States 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.

As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning—even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. as we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering"… The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering". Even if one were to parse the stature more "finely" to attempt to treat suffering as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering… We find the use of the waterboard constitutes a threat of imminent death… Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject's mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute. Although the waterboard constitutes the real threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering… We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years. Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard… In the absence of prolonged mental harm,no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.

For over three years during the 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. The OPR is set to conclude its investigation in June 2009 and reportedly will recommend professional sanctions, if not criminal prosecution, against the authors of the memos. 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. Then Governor Bush did not issue a pardon for the sheriff.

Andrew C. McCarthy, a licensed attorney and former Republican U.S. federal prosecutor now serving as director of the Foundation for the Republican-leaning Defense of Democracies Center for Law and Counterterrorism, states in an October 2007 op-ed in National Review that he believes that, when used "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law. McCarthy continues: "Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture, an ignominy the law, as we've seen, has been patently careful not to trivialize or conflate with lesser evils". Nevertheless, McCarthy in the same article admits that "waterboarding is close enough to torture that reasonable minds can differ on whether it is torture" and that "[t]here shouldn't be much debate that subjecting someone to [waterboarding] repeatedly would cause the type of mental anguish required for torture".

Some U.S. politicians have unequivocally stated that it is their belief that waterboarding is not torture. In response to the question "Do you believe waterboarding is torture?" on the Glenn Beck Program, Republican Representative Ted Poe stated "I don't believe it's torture at all, I certainly don't". Beck agreed with him.

"I don't believe we engaged in torture," former Vice President Dick Cheney has said, adding: "If I had it to do it all over again, I would do exactly the same thing." "I'm a strong believer in it," Cheney told a National Press Club audience regarding waterboarding, saying "I thought it was well done."

Jim Meyers, a conservative commentator for NewsMax Media, stated that he does not believe that waterboarding should be classified as a form of torture, because he does not believe it inflicts pain.

However, other officials, including several within the Bush administration, as well as U.S. politicians and commentators have questioned the legality of waterboarding as an interrogation technique. Philip Zelikow, who served as a top adviser to then-Secretary of State Condoleezza Rice as Counselor of the United States Department of State and before that as Executive Director of the 9/11 Commission, testified before Congress on May 13, 2009 that he and his colleagues had tried in 2005 to rein in the interrogation program; Zelikow said that in response the Bush administration tried to collect and destroy copies of a memo he had written disagreeing with the Justice Department’s legal opinions on interrogations.

Richard Armitage, former Deputy Secretary of Defense under Colin Powell, told a news agency that in hindsight maybe he should have resigned over his suspicions regarding the Administration's use of torture techniques like waterboarding.

Bruce Fein, an associate deputy attorney general under Ronald Reagan and expert in constitutional and international law, wrote in an editorial in the Washington Times in February 2009, "[w]aterboarding has been prosecuted as torture since the Spanish-American War of 1898. Former Republican Secretary of Homeland Security Tom Ridge concurs that waterboarding is torture."

Jack Goldsmith, former head of the Bush administration's Office of Legal Counsel starting in 2003, quit after only nine months because he reportedly disagreed with and fought against what have become known as the "torture memos" written by his colleague John Yoo. During his tenure as head of the OLC, Goldsmith temporarily stopped the use of waterboarding as an interrogation technique. Goldsmith wrote a book about his experiences and his belief that the torture memos defined torture too narrowly.

Other prominent Republican politicians assert that waterboarding is torture. In an interview on Fox News, John McCain said in response to the question whether waterboarding is torture, "It's torture. It's in violation of the Geneva Conventions, of the international agreement on torture, treaty of torture signed during the Reagan administration. It goes all the way back to the Spanish Inquisition. It's not a new technique, and it is certainly torture."

Senator McCain co-sponsored a bipartisan report in 2009 with Senator Carl Levin which found that Defense Secretary Donald Rumsfeld and other top White House officials were responsible for detainee abuse at U.S. military prisons and stated "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality and authorized their use against detainees."

In another example, Professor Wilson R. Huhn's 2008 scholarly editorial "Waterboarding is Illegal", published by Washington University Law Review, directly questions the legality of the technique from a legal perspective.

In May 2008 the journalist Christopher Hitchens voluntarily experienced waterboarding. He managed to resist for twelve seconds the first time, and, embarrassed at his poor performance, he asked to try again. He then managed to resist for 19 seconds. He later told the BBC: "There is a common misconception that waterboarding simulates the sensation of drowning, but you are to all intents and purposes actually drowning". He said that although he was somewhat prepared for his ordeal, he had not been prepared for what came later: "I have been waking up with sensations of being smothered". Hitchens concluded, "if waterboarding does not constitute torture, then there is no such thing as torture. Believe me. It's torture".

On May 22, 2009, conservative radio talk show host Erich "Mancow" Muller subjected himself to waterboarding to prove that it is not torture. Muller was able to endure the technique for six seconds, a few moments after which he declared, "It is way worse than I thought it would be, and that's no joke." Muller likened it to a time when he nearly drowned as a child and had to be revived. Muller said, "It is such an odd feeling to have water poured down your nose with your head back...It was instantaneous...and I don't want to say this: absolutely torture."

Sean Hannity, another right-wing 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. Sean Hannity has not yet subjected himself to the technique and did not respond when a left-wing commentator, Keith Olbermann, offered to donate $1,000 to charity for each second of waterboarding endured. Although Keith Olbermann has since withdrawn his offer calling it unnecessary after Mancow's admission (above) that waterboarding is torture, former Minnesota Governor and Navy Seal Jesse Ventura told the Huffington Post, "I'll bet [Hannity] a thousand bucks that I can get him to say 'Barack Obama is the greatest president' -- if I get him to say it, he'll give the thousand to charity and if I can't, I'll give the money to charity."

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.

Contemporary use and the United States

Use by law enforcement

The use of "third degree interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread in early American policing. Lassiter classified the water cure as "orchestrated physical abuse", and described the police technique as a "modern day variation of the method of water torture that was popular during the Middle Ages". The technique employed by the police involved either holding the head in water until almost drowning, or laying on the back and forcing water into the mouth or nostrils. Such techniques were classified as "'covert' third degree torture" since they left no signs of physical abuse, and became popular after 1910 when the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions. 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.

In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning". The sheriff was sentenced to ten years in prison, and the deputies to four years.

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.

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. 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. 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".

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. The sources of this information were current and former CIA officials. ABC reported that waterboarding had been authorized by a 2002 Presidential finding. 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." 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.

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.

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.

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. 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. 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."

Khalid Sheikh Mohammed

Khalid Sheikh Mohammed was waterboarded 183 times while being interrogated by the CIA, and is the person who has survived the most waterboarding sessions. 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.

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. The following are the questions and answers at issue, excerpted from the transcript of the interview:

Hennen: "…And I've had people call and say, please, let the Vice President know that if it takes dunking a terrorist in water, we're all for it, if it saves American lives. Again, this debate seems a little silly given the threat we face, would you agree?"

Cheney: "I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation. Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that."
…
Hennen: "Would you agree a dunk in water is a no-brainer if it can save lives?"

Cheney: "Well, it's a no-brainer for me, but for a while there I was criticized as being the vice president for torture. We don't torture. That's not what we're involved in."

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?"

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.

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.

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

Abu Zubaida

Abu Zubaida was also waterboarded by the CIA.

In 2002, U.S. intelligence located Abu Zubayda by tracing his phone calls. He was captured March 28, 2002, in a safehouse located in a two story apartment in Faisalabad, Pakistan. While in U.S. custody, he was waterboarded, and subsequently gave a great deal of information about the 9/11 attack plot. Such information was used by the Canadian government in seeking to uphold the "security certificate" of Mohamed Harkat. Participating in his interrogation were two American psychologists, James Elmer Mitchell and R. Scott Shumate.

In December 2007, The Washington Post reported that there were some discrepancies regarding reports about the amount of times Zubaida was waterboarded. According to a previous account by former CIA officer John Kiriakou, Abu Zubaida broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning:

But other former and current officials disagreed that Abu Zubaida's cooperation came quickly under harsh interrogation or that it was the result of a single waterboarding session. Instead, these officials said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months. The videotaping of Abu Zubaida in 2002 went on day and night throughout his interrogation, including waterboarding, and while he was sleeping in his cell, intelligence officials said… The CIA has said it ceased waterboarding in 2003.

Kiriakou's statements were repeated by many news outlets, even though he had no firsthand knowledge and his claims were never corroborated by others. On 16 April 2009, the Justice Department released a 2005 memo stating that Zubaida was waterboarded 83 times in August 2002, discrediting Kiriakou's claims. The counting method used in the memo has been disputed by some as counting "pours" that only amounted to 8 or 10 waterboarding sessions, but all methods of counting contradict Kiriakou's claim of 35 seconds.

As a political issue in confirmation hearings

The issue of whether waterboarding is torture became an issue in confirming certain appointments to the Department of Justice. Judge Michael Mukasey was intended to be a consensus candidate to replace Alberto Gonzalez as Attorney General, but his confirmation briefly looked in doubt when he would not state whether waterboarding is torture. Mukasey stated that waterboarding seemed "over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans" but added that "hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical". As reported by the Washington Post, Mukasey also stated that he was "reluctant to offer opinions on interrogation techniques because he does not want to place U.S. officials 'in personal legal jeopardy' and is concerned that such remarks might 'provide our enemies with a window into the limits or contours of any interrogation program'".

The issue came up again in the confirmation hearings of Federal District Judge Mark Filip for the position of deputy attorney general. Filip stated that he considered waterboarding to be "repugnant", and stated that, having had a grandfather in a POW camp in Germany, he considered the issue to be somewhat personal. However, he refused to state whether waterboarding was torture and stated instead that "the attorney general of the United States is presently reviewing that legal question," and that "I don't think I can or anyone who could be potentially considered to be his deputy could get out in front of him on that question while it's under review."

As a political issue in 2008 presidential election

The issue of whether waterboarding should be classified as torture also became a political issue for candidates running for president in the 2008 election, with candidates being asked whether they would consider waterboarding to be a form of torture. Several candidates (e.g. John McCain, Mike Huckabee, Joseph Biden, Chris Dodd, Barack Obama, Hillary Clinton) stated that waterboarding is torture, while others stated that it depends on how it is done or have stated unequivocally that they do not believe waterboarding is torture.

For example, in response to a direct question of whether he considered waterboarding to be torture, Rudolph Giuliani stated "I'm not sure [waterboarding] is [torture]. It depends on how it's done. It depends on the circumstances. It depends on who does it. I think the way it's been defined in the media, it shouldn't be done. The way in which they have described it, particularly in the liberal media. So I would say, if that's the description of it, then I can agree, that it shouldn't be done. But I have to see what the real description of it is. Because I've learned something being in public life as long as I have. And I hate to shock anybody with this, but the newspapers don't always describe it accurately".

Additionally, Tom Tancredo stated in a Republican debate the following: "[T]he question that I was originally asked that elicited the response that you've mentioned was, what do we do in the – in the response to a nuclear – or the fact that a nuclear device or some bombs have gone off in the United States; we know that there are – we have captured people who have information that could lead us to the next one that's going to go off; and it's the big one? That was the question that I responded to. And I told you yes, I would do – certainly waterboard – I don't believe that that is, quote, "torture." I would do what is necessary to protect this country. That is the ultimate responsibility of the president of the United States".

In the Republican YouTube debates, Andrew Jones, a college student from Seattle submitted the question: "Recently, Senator McCain has come out strongly against using waterboarding as an instrument of interrogation. My question for the rest of you is, considering that Mr. McCain is the only one with any firsthand knowledge on the subject, how can those of you sharing the stage with him disagree with his position?" In response to this question Mitt Romney stated "I oppose torture. I would not be in favor of torture in any way, shape or form". Prompted by the moderator as to whether waterboarding was torture, Romney said "as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use" which prompted the following exchange between McCain and Romney: McCain: "Well, governor, I'm astonished that you haven't found out what waterboarding is". Romney: "I know what waterboarding is, Senator". McCain: "Then I am astonished that you would think such a – such a torture would be inflicted on anyone in our – who we are held captive and anyone could believe that that's not torture. It's in violation of the Geneva Convention".

McCain later reiterated his opinion in an interview with 60 minutes on March 9, 2008, shortly after becoming the presumptive 2008 Republican presidential nominee, that waterboarding was torture and that the U.S. Government had tortured detained prisoners by using this technique. Scott Pelley asked if water boarding is torture, McCain said, "Sure. Yes. Without a doubt". Pelley then asked "So the United States has been torturing POWs?" Pelley asked. "Yes. Scott, we prosecuted Japanese war criminals after World War II. And one of the charges brought against them, for which they were convicted, was that they water-boarded Americans", McCain said.

A graphic image with text encouraging people to "Waterboard Barack Obama" was posted on the official Sacramento County Republican Party website, but removed soon afterward.

Obama Administration

See also: Department of Defense Directive 2310

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. In early April 2009, the Obama administration released several classified Justice Department memos from the George W. Bush administration that discussed waterboarding.

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. In early April 2009, news reports stated that Obama would support an independent investigation over the issue as long as it would be bipartisan. 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.

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. 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."

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.

Obama detailed his view on waterboarding and torture in a press conference on 29 April 2009:

Q Thank you, Mr. President. You've said in the past that waterboarding, in your opinion, is torture. Torture is a violation of international law and the Geneva conventions. Do you believe that the previous administration sanctioned torture?

THE PRESIDENT: What I've said -- and I will repeat -- is that waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic. And that's why I put an end to these practices. I am absolutely convinced it was the right thing to do -- not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.

I was struck by an article that I was reading the other day, talking about the fact that the British during World War II, when London was being bombed to smithereens, had 200 or so detainees. And Churchill said, we don't torture -- when the entire British -- all of the British people were being subjected to unimaginable risk and threat. And the reason was that Churchill understood you start taking shortcuts, and over time that corrodes what's best in a people. It corrodes the character of a country.

And so I strongly believe that the steps that we've taken to prevent these kinds of enhanced interrogation techniques will make us stronger over the long term, and make us safer over the long term, because it will put us in a position where we can still get information -- in some cases, it may be harder, but part of what makes us, I think, still a beacon to the world, is that we are willing to hold true to our ideals even when it's hard, not just when it's easy.

At the same time, it takes away a critical recruitment tool that al Qaeda and other terrorist organizations have used to try to demonize the United States and justify the killing of civilians. And it makes us -- it puts us in a much stronger position to work with our allies in the kind of international coordinated intelligence activity that can shut down these networks.

So this is a decision that I am very comfortable with. And I think the American people over time will recognize that it is better for us to stick to who we are, even when we're taking on a unscrupulous enemy.

Use of waterboarding to discipline children

In February 2010 active duty US soldier and of the Iraq war veteran Joshua Tabor admitted to the Police that he had been disciplining his four year old daughter by immersing her head in water. This water immersion was widely described as "waterboarding". Tabor disciplined his daughter because she could not recite the alphabet. He is reported to have been inspired by the CIA's waterboarding of Guantanamo captives, and her fear of water. According to Todd Stancil police chief of Yelm, near Seattle, although Tabor called his acts waterboarding "he is not sure whether Tabor actually ran the water over the girl's face, a move that would force a gag reflex." The News Tribune reported that Tabor and his girl-friend had held the girl's head underwater with her face up. The girl's back was covered with extensive bruises from this disciplining technique.

Animatronic depiction of waterboarding at Coney Island

Main article: Coney Island waterboarding thrill ride

In the summer of 2008, New York City artist Steve Powers installed an animatronic depiction of an interrogator and an interrogation subject at the Coney Island amusement park.

The interrogation subject wears the orange jumpsuit "noncompliant" Guantanamo captives wear. Patrons view the tableaux through iron bars. When patrons deposit a dollar they see the figure of the interrogation subject struggle and convulse when the interrogator pours water over the subject's face.

Powers told The New York Times his purpose in preparing the display was educational:

"What's more obscene, the official position that waterboarding is not torture, or our official position that it's a thrill ride?" "Robot waterboarding became a way of exploring the issue without doing any harm. It's putting a unique experience on the table. And it doesn't take a great leap of the imagination to look in there and say: 'That's really what's going on? That's crazy.'"

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. 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". 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". 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. 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.

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.

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.

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", that the techniques applied to Abu Zubaydah were "categorically" torture, 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".

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.

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. 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.

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." 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. 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." 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.

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. The memos, known today as the "torture memos," advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes. 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.

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, 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. 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.

In addition, both under the War Crimes Act 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. 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."

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!

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."

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. It appears unlikely that bill supporters will be able to gather enough votes to overturn the veto.

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.

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

External links

• Simons, Marlise (28 March 2009). "Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials". The New York Times. Retrieved 29 April 2009.
• Daskal, Jennifer (2 September 2007). "A Fate Worse Than Guantanamo". Human Rights Watch. Retrieved 29 April 2009.
• "India: Army Killings Fuel Insurgency in Manipur". Human Rights Watch. 14 September 2008. Retrieved 29 April 2009.
• "Further Information on UA 325/08 (AFR 54/044/2008, 26 November 2008) – Incommunicado detention/ risk of torture" (PDF). Amnesty International. 28 November 2008. Retrieved 29 April 2009.
• Wheeler, Marcy (18 May 2009). "The 13 people who made torture possible". Salon.com. Retrieved 21 May 2009.
• Pollyea, Ryan (22 May 2009). "Mancow Waterboarded, Admits It's Torture". NBC News. Retrieved 23 May 2009.
• Physicians for Human Rights: Doctors’ Role in CIA Waterboarding "May Amount to Human Experimentation" - by Democracy Now!