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.
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