Waterboarding is a form of torture that consists of immobilizing a person on their back with the head inclined downward and pouring water over the face and into the breathing passages. Through forced suffocation and inhalation of water, the subject experiences the process of drowning and is made to believe that death is imminent. In contrast to merely submerging the head face-forward, waterboarding almost immediately elicits the gag reflex. Although waterboarding does not always cause lasting physical damage, it carries the risks of extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, injuries (including broken bones) due to struggling against restraints, psychological injury, and death. The psychological effects on victims of waterboarding can last for years after the procedure.
Waterboarding was used for interrogation at least as early as the Spanish Inquisition to obtain information, coerce confessions, punish, and intimidate. It 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. In 2007 waterboarding led to a political scandal in the United States when the press reported that the CIA had waterboarded extrajudicial prisoners and that the Justice Department had authorized this procedure. The CIA is known to have used waterboarding on at least three Al-Qaida suspects: Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.
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 19 July 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 they are uncertain. The U.S. State Department has recognized that other techniques that involve submersion of the head of the subject during interrogation would qualify as torture.
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.
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Legality
International
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. 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 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", 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".
United States
The United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) 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.[133] 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[135] 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. But President George W. Bush vetoed the bill on March 8, 2008. It appears unlikely that bill supporters will be able to gather enough votes to overturn the veto.
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