A Brief on the Use of Water Torture by American Officials in the War on Terrorism

Posted 2007-11-02 21:55:39

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OpEdNews - November 2, 2007 United States Senate - Committee on the Judiciary In the Matter of the Nomination of Michael B. Mukasey to be Attorney General of the United States of America WHEREAS President George W. Bush has nominated Michael B. Mukasey to serve as the Attorney General of the United States, a cabinet position established by law, and has requested the advice and consent of the United States Senate to the appointment pursuant to Article II, Section 2, Clause 2 of the Constitution of the United States of America ; and WHEREAS the Committee on the Judiciary is preparing to vote on the nomination; and WHEREAS the nominee was asked by members of the Committee whether the use of "waterboarding," an interrogation technique that simulates drowning, by American officials on prisoners taken into custody in the war on terrorism amounts to torture; and WHEREAS the nominee has stated that his legal opinion on waterboarding would depend on the facts and circumstances of the program and that he has not been briefed on the government’s program and techniques; THEREFORE the following brief is submitted for his enlightenment and for such other use as the Committee may find appropriate. Description of Water Torture During water torture, the body and head of a victim are typically strapped to an inclined board with the head lower than the feet. The victim’s jaws are forced open and a cloth is forced deep into the mouth and over the nose. Water is continuously poured over and into the cloth forcing the victim to stop breathing until forced to either swallow water and/or aspirate it into the lungs, triggering the gag reflex. Water torture results in controlled drowning, the degree of which depends upon the ability of an individual to resist and the will of the torturer. The punishment ranges from psychological torment and physical suffocation to death. At the least, water torture represents a mock execution. The primeval fear of asphyxiation leads to overwhelming panic in even the most disciplined individuals who may be trained and psychologically conditioned to die rather than submit. Water torture can lead to serious injury to the victim. A lack of oxygen can quickly result in permanent brain damage, and the aspiration of even small amounts of water can lead to lung disease, including pneumonia. Struggles by the victim against the restraints can produce severe sprains and broken bones. Significantly, the intense fear of imminent death and the victim’s helplessness to prevent it produces devastating and long lasting psychological damage. History of Water Torture The use of water to simulate drowning has been used as a torture device since at least the Middle Ages. It was known as the tortura del agua during the Spanish Inquisition and was used by agents of the Dutch East India Company during the Amboyna massacre in 1623. Water torture has been acknowledged by the United States to be illegal since at least 1901 when an Army officer was convicted and sentenced to 10 years imprisonment for using it to torture a Philippine rebel. In 1947, a Japanese officer was prosecuted by the United States for strapping a U.S. civilian to a tilted stretcher and pouring water over his face until he agreed to talk. The officer was convicted of a Violation of the Laws and Customs of War and was sentenced to 15 years of hard labor. In 1957, French forces in Algeria tortured Henri Alleg, a journalist, by strapping him to a plank and wrapping his head in a cloth placed under a running water tap. Alleg later talked about his torture in The Question: "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." In 1968, the Washington Post published a photograph of an American soldier supervising the use of water torture on a North Vietnamese prisoner. The victim was being held down as water was poured over a cloth covering his nose and mouth to induce "a flooding sense of suffocation and drowning meant to make him talk." The soldier was charged, convicted and discharged from the Army. In 2005, the U.S. State Department’s review of Tunisia’s poor human rights record included "submersion of the head in water" as a form of "torture and other cruel, inhuman, or degrading treatment or punishment" of detainees. Recent Use of Water Torture by the United States On September 17, 2001, President Bush signed a secret Presidential finding authorizing the CIA to hunt, capture, detain, or kill designated terrorists wherever they might be located. In a secret memorandum dated February 7, 2002, President Bush stated that the Geneva Conventions did not apply to al-Qaeda or Taliban detainees, but that the United States would "continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." In doing so, the president authorized extraordinary rendition of detainees and their secret detention; however, the findings were silent regarding the use of enhanced interrogation techniques. In March 2002, the CIA created a list of six "enhanced interrogation techniques" including the attention grab, attention slap, belly slap, long time standing, the cold cell, and waterboarding. At least one detainee in Afghanistan died of hypothermia after being forced to stand naked throughout a cold night after being doused with cold water and another died after being suffocated in a sleeping bag. In August 2002, the Justice Department secretly issued a legal opinion stating that no interrogation practices were illegal unless they produced pain equivalent to organ failure or death. A second secret memorandum described approved practices and the frequency and duration of their application. The legal opinion was withdrawn in June 2004 after it became public knowledge. The Justice Department subsequently published a new opinion that stated, "Torture is abhorrent both to American law and values and to international norms." However, a footnote stated that previous actions by the CIA were not being declared illegal. The public legal opinion was quickly followed in early 2005 by yet another secret opinion that, according to a recent article in the New York Times, "provided explicit authorization to barrage suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." In March 2005, Porter J. Goss, the then director of the Central Intelligence Agency, was unable to assure Congress that the CIA had been using lawful interrogation methods in the past few years. He did say that waterboarding fell into "an area of what I will call professional interrogation techniques" and he defended such techniques as an important tool in efforts against terrorism. On April 5, 2005, one hundred U.S. professors of law signed and sent an open letter to then Attorney General Alberto Gonzales, which stated in pertinent part: "We are particularly concerned about your continuing failure to issue clear statements about illegal interrogation techniques, and especially your failure to state that "waterboarding"—a technique that induces the effects of being killed by drowning—constitutes torture, and thus is illegal. We urge you to make such a statement now. "The Convention Against Torture prohibits practices that constitute the intentional infliction of "severe pain or suffering, whether physical or mental." The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause "severe physical or mental pain or suffering." "Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward." The Detainee Treatment Act of 2005 prohibited the "cruel, inhuman, or degrading treatment or punishment" of detainees and provides for "uniform standards" for interrogation by the military; however, it does not apply to interrogations by the CIA. In signing the Act in January 2006, President Bush declared his authority to set aside the restrictions if they interfered with his constitutional powers. His ability to get away with it is enhanced by the secret Justice Department opinion allowing even the use of water torture in certain circumstances. President Bush issued yet another secret executive order in summer 2006 regarding enhanced interrogation techniques; however, he has refused to disclose whether water torture is included among the approved techniques. During a speech on September 6, 2006, President Bush discussed the benefits of these interrogation techniques in breaking a person under questioning. "We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used – I think you understand why – if I did, it would help the terrorists learn how to resist questioning, and to keep information from us we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary." Other Forms of Enhanced Interrogation Techniques Zubaydah has told the Red Cross that he was not only waterboarded, but he was kept for long periods in a "dog cage" so small that he could not stand. Current CIA director Michael Haden has admitted that aggressive interrogation methods conveying imminent death have been used by the CIA in "small, carefully run operations" against fewer than 35 prisoners since 2002. In September 2007, Hayden removed water torture from the list of approved "enhanced interrogation techniques" authorized by President Bush in 2002. However, CIA officials are still authorized to force prisoners to stand for long periods of time, handcuffed with their feet shacked to the floor, exhausted and sleep deprived, for up to 40 hours. This method of torture was described in A Question of Torture as a favorite of the KGB. in that it "produces excruciating pain, as ankles double in size, skin becomes tense and intensely painful, blisters erupt oozing watery serum, heart rates soar, kidneys shut down , and delusions deepen." Conclusion Director Hayden was recently asked: "Is waterboarding torture and will you continue to waterboard? Yes or no." Haden replied "Judge Mukasey cannot nor can I answer your question in the abstract. I need to understand the totality of the circumstances in which this question is being posed before I can give you an answer." Whether or not the nominee actually believes that "waterboarding" is or is not torture really begs the question. The real question is whether the president is above the law and whether or not, as the Attorney General, the nominee will enforce the law on behalf of the people of the United States, even as against the wishes of the president who appoints him. When asked during Committee hearings if the president was required to obey federal statutes, the nominee replied, "That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country." The Constitution empowers Congress to make laws and to "provide for the common defense." It’s the job of the president, including the Attorney General, to enforce the laws made by Congress. Our president has taken an oath to preserve, protect and defend the Constitution of the United States, not to subvert the valid laws enacted by our Congress. The nominee should be required, not only to state whether "waterboarding," as commonly understood, is torture within the meaning of the law, including statutes, treaties, and the Constitution, but to also state whether other forms of approved torture are also unlawful. Finally, the nominee must reassure all of us that the president, even acting as Commander in Chief, has no choice but to obey a valid federal statute. Unless and until he makes such a clear and unequivocal statement, the Senate should withhold its consent to his nomination and should so advise the president.

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