Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

Waterboarding as Torture in U.S. Law

The former Bush/Cheney administration and its apologists in the media continue to claim that it is an open question as to whether “waterboarding” (immobilizing a person, pouring water over his/her face and breathing passages, suffocating him/her and leading him/her to believe he/she will die) is torture and forbidden in U.S. law.  The question is ridiculous.

  • Waterboarding (as it is now called) is one of the oldest known forms of torture. In the 1500s it was used in the Spanish Inquisition.
  • In 1898, an American soldier (Captain Edwin F. Glenn)  used the technique (then called the “water cure”) on a prisoner captured in the Philippines during the Spanish-American War.  When reported, Americans were shocked and protests led to Elihu Root, U.S. Secretary of War (now called Secretary of Defense) ordered Glenn court-martialed in 1902 and imprisoned.  A general under whose command this and other tortures occurred was court-martialed and removed from the army.
  • During WWII, both the Gestapo and some Japanese soldiers used waterboarding as a form of torture.  The Japanese were tried after the war and at least one hung by U.S. forces for waterboarding U.S. Airman Chase J. Nielsen.
  • Waterboarding was declared illegal by U.S. generals during the Vietnam War.  When a journalist photgraphed an American soldier helping two South Vietnamese soldiers waterboard a captured North Vietnames soldier, and published in the Washington Post in 1968, it caused outrage across the United States.  The soldier was court-martialed and dishonorably discharged from the U.S. army.
  • In 1983, Texas sheriff James Parker was sentenced to ten years in prison and his deputies to four years apiece for waterboarding prisoners.  When his case came up for clemency years later, then Gov. George W. Bush refused to pardon Sheriff Parker, specifically stating that no one is above the law.

In 1988, U.S. President Ronald Reagan signed the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, or Punishment of 1984.  It was ratified by the U.S. Senate in 1994.  Since the U.S. Constitution classifies all treaties that the U.S. signs and ratifies as sharing the Constitution’s status as “highest law of the land,” then the U.S. must follow the Convention Against Torture’s provisions, including those which demand prosecution of those who authorize and those who implement torture.  It also forbids the U.S. to ship people to other countries that practice torture (“rendition”) and the Bush administration was guilty of that, also.

The reluctance of the Obama administration to try those responsible is rooted in several factors:

  • Such trials would be highly controversial.  The Washington Post published a poll today showing that Americans are about evenly divided over whether or not to have such trials.  Although law enforcement is not decided by popularity, the Obama administration has to  pass many pieces of legislation that will take all the public support he can muster.
  • The Republicans have already hinted that if the Obama administration tries anyone in the Bush administration, they will consider it “engaging in criminalizing policy differences” and they will investigate Democratic administrations when they get back in power.

But the consequences of refusing to try these cases could be even worse:

  • Members of the Bush administration could be indicted by the International Criminal Court or by the courts of other nations under the “global jurisdiction” where human rights violations are concerned.  This would put the Obama administration in the awkward position of either arresting and extraditing former Bush officials, including, maybe the former president himself or of defying international law.  If nothing else came of that, it would, at the very least, impede Obama’s attempts to rebuild America’s alliances abroad.  It also undermines his attempts to re-set our relations with the Muslim world.
  • Failing to prosecute violaters of human rights, no matter how highly placed, invites human rights abuses on Americans traveling abroad, whether civilian or military.
  • If members of the Bush administration travel abroad, they could be arrested and prosecuted by others with potential for a huge international incident.
  • Failure to prosecute violaters of human rights in the Bush administration makes it likely that a future administration will repeat these practices.  In fact, by calling them “policy differences” GOP torture apologists are already hinting that they will restart torture when their party wins the White House, again.  And their horror at the release of the torture memos as “exposing to our enemies the limits of American practices” seem to indicate they will try other practices in their place (electric shock to  the genitals?  bamboo shoots under fingernails? ).

Not too long ago (before 11 Sept. 2001), this was not controversial.  No one argued for the U.S. using torturing. Nor did anyone argue that “enhanced interrogation techniques” were not really torture.  This was not a liberal vs. conservative, left vs. right, or Democratic vs. Republican issue.  So, the current debate means that America has lost its way morally.  To that extent, the use of these torture techniques by the Bush administration and the fact that Americans find the use of torture or prosecution of torturers controversial, means that the terrorists have won–at least in part. Trying torturers, no matter who they are, is necessary for us to regain some degree of moral clarity.


April 26, 2009 - Posted by | human rights., torture


  1. Michael,

    Thanks for another good article! It’s guys like you that allow me to feel better about the rest of us! What troubles me as much, or more, than the fact that “enhanced interogation techniques” have been employed with the approval of highly placed officials within our government by agents of our government is the widespread public approval, or tolerance, of torture. Born in 1956 and growing up throughout the Cold War (quite heated in Viet Nam), one of the ideas that was instilled in me as a youngster was the notion that one of the things that differentiated “us” from “them” was the willingness to use “extraordinary rendition” and torture as a means to an end. While “maverick” operators may have employed these brutal techniques, as you point out in your article, they have sometimes been brought to justice. Hopefully justice will be pursued in the current situation. Voices like your’s contribute to that process. Thanks.

    Comment by Steve Schuler | April 26, 2009

  2. Steve, that’s why I became a blogger in 2005. I was told that most of the Baptist voices in the blogosphere were fundamentalist in theology and rightwing in politics. So, I decided to do what I could to provide an alternative voice and I named the blog after the first progressive, democratic, pro-human rights and economic justice movements in the English-speaking world, the 17th C. Levellers. The greatest of the Leveller leaders, Richard Overton, was a pacifist General Baptist with Dutch Mennonite influences–and a personal hero.

    I’m a few years younger than you (b. 1962), but I, like you, grew up believing that we had settled these issues at the Nuremberg Trials.

    Comment by Michael Westmoreland-White | April 26, 2009

  3. How can they possibly call it an open question. The answer is in the dictionary. Torture is something that causes pain or anguish. The whole purpose of waterboarding is to cause pain and anguish otherwise they wouldn’t bother doing it. Therefore, waterboarding is torture. Simple.

    Comment by steph | April 26, 2009

  4. Steph, people can convince themselves of many things, especially if scared. In this country, we have been subject to 24/7 propaganda of fear for 7 years, now. Now, the people chose against fear to elect Obama and he won decisively. But he didn’t win like Zuma in South Africa (69.5 % for the ANC) with 65% voter turnout. He won by 9.2 million votes or about 3%. That’s large compared to recent presidential elections, but still means that nearly half the nation voted for the other guy or didn’t vote.

    And, via Fox News and other places, the propaganda of fear continues. Frightened people will convince themselves of much.

    Comment by Michael Westmoreland-White | April 27, 2009

  5. I’m very sorry – that is very very sad. It seems to me that the former Bush/Cheney administration and its apologists in the media created, nutured and play on that fear.

    Comment by steph | April 27, 2009

  6. “It seems to me that the former Bush/Cheney administratin and its apologists in the media created, nurtured, and play on that fear.” Yes. To be fair, many other voices in the media have pointed this out over those same 7 years–including raising color coded “terror alerts” near an election. But that’s what happened.

    I am ashamed at how cowardly the U.S. has acted in the wake of the 9/11 attacks. Many nations have suffered far worse terror attacks and far more of them without thereby shredding their laws. The U.K. modified some of its laws after terrorist attacks, including being able to hold people longer (but not indefinitely!) without charge. But they didn’t throwout centuries of British legal traditions. Spain didn’t decide to start rounding up “enemy combatants” for “black sites” after the train bombings in Madrid. Italy was subjected to repeated terrorist attacks during the ’70s without our overreaction.

    And we didn’t always do this, either. After the first World Trade Center attacks, we used normal interrogation methods, not torture, and got convictions for all involved. We didn’t shred the Constitution after Timothy McVeigh and Co. blew up the federal building in Oklahoma City, OK, either.

    But our “leaders” after 9/11 terrorized the populace through propaganda and we have reacted like cowards–heavily armed, very dangerous, cowards.

    Our recovery will not happen instantly–and is not helped by the continual Bushco. propaganda, now.

    But the drumbeat for trials is getting louder. I am moderately confident that we will do the right thing–and exorcise these demons of fear that now enshackle us.

    Comment by Michael Westmoreland-White | April 27, 2009

  7. Simple toture cause’s pain . Maybe spanking nope , hard slap on the wrist ,no… maybe then calling them ugly or stupid or bad men , may hurt their feelings and cause them pain.
    What would you suggest , giving them no milk for their coffee.
    There maybe a better way but noone has come up with it.
    The need for the saftey of many may have to include the discomfort of one. As an ex Navy Seal I have been thru these procedures , scary yes, disconcerting yes. Deadly not if done right and safely.
    Come on we need to protect ourselves and our families.
    Lets here some go forward ideas instead of the same old Bush bashing baloney.

    Comment by Simon | April 29, 2009

Sorry, the comment form is closed at this time.

%d bloggers like this: