Trump is Wrong – Torture does not Work and Water Boarding is Torture

by HEATHER GRAY
January 28, 2017
Justice Initiative International 

Preface

I heard on the news that Trump had talked with advisors who said that torture and water-boarding work effectively. He and they are wrong. Torture doesn’t work. It only leads to more violence and more destabilization. And by all national and international criteria water-boarding is definitely torture.  Further, torture becomes a vicious cycle. Bringing peace to the world and an end of war? Torture is definitely not the answer and it leads not only to more violence internationally but to more violence domestically as well. Torture is also against international law.  Nevertheless, here is some history of water-boarding by the US that is often referred to as the water cure.

It is rather interesting that while the US used water-boarding in the Philippines in the Philippine-American War in the early part of the 20th century, when the Japanese used water-boarding on U.S. personnel in World War II, America tried the Japanese for war crimes.

Chase J. Nielsen, one of the U.S. airmen who flew in the Doolittle raid following the attack on Pearl Harbor, was subjected to waterboarding by his Japanese captors. At their trial for war crimes following the war, he testified “Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again… I felt more or less like I was drowning, just gasping between life and death.” In 2007, Senator John McCain claimed that the United States military hanged Japanese soldiers for waterboarding American prisoners of war during World War II (Wikipedia).

Below is information about the first significant and devastating water-boarding practices by the United States in the Philippine-American War (1898-1902).

This is followed information about the United States Congress and it’s actions on and against torture that include restrictions on water-boarding and also on CIA practices. Go to the Congressional Research Service “UN Convention Against Torture (CAT): Overview and Application to Interrogation Techniques” for the full statement.


US Water-Boarding in the Philippines

The Americans began to utilize the deadly “water torture” against Filipinos – forcing huge amounts of water into their stomachs to then attempt to gather information. US General “Howling Jake” Smith insisted on its use in island of Samar in the Philippines. The US, however, was not pleased with Smith about this and court-martialed him, but the charges and punishment were flimsy at best:
In May 1902, Smith faced court-martial for his orders, being tried not for murder or other war crimes, but for “conduct to the prejudice of good order and military discipline”. The court-martial found Smith guilty and sentenced him “to be admonished by the reviewing authority.”
To ease the subsequent public outcry in America, Secretary of War Elihu Root recommended that Smith be retired. President Roosevelt accepted this recommendation, and ordered Smith’s retirement from the Army, with no additional punishmen. (Wikipedia).
U.S. soldiers torturing a Filipino in 1901. When the U.S. military waterboarded Filipinos – the practice was accepted. When the Japanese later waterboarded U.S. personnel in World War II- America tried them for war crimes. (Ohio State University)
 

Donald Trump boldly states, if in a position to do so, that he would have the military engage in water-boarding. Under the circumstances, it is worthy of a comment about the current status of water torture in the international and domestic arenas.

Unfortunately, it is not widely known that the “water cure,” that was utilized by the US in the Philippine War, has been on-going by the US intelligence and military services. It has also been used by the US domestically in the 20th century by some police forces (NPR).

It was discovered during the George W. Bush administration that the “water cure” was used by the CIA in the post 9/11 “enhanced interrogation” practices.  After the 9/11 revelations about the “water cure” tactics being used by the US, in 2008 the United Nations’ Report of the Committee Against Torture ruled that:

It’s a clear-cut case: Water-boarding can without any reservation be labeled as torture. It fulfills all of the four central criteria that according to the United Nations Convention Against Torture (UNCAT) defines an act of torture.”

(Regarding the criteria for torture, as referred to by the United Nations, waterboarding fulfills all four criteria for torture): (1) (It) “causes severe physical and/or mental suffering” and can lead to death; (2) (It is) done intentionally, (3) for a specific purpose and (4) by a representative of a state – in this case the US (Wikipedia).

While President Bush vetoed the Congressional bill in 2008 that would have banned waterboarding, on 22 January 2009 President Obama stressed that all military personnel were to use the Army Field Manual that prohibits the use of waterboarding which then moved away from the tactics of the Bush administration (Wikipedia).

______

Below is information about the U.S.  Army Field Manual Restrictions as well as information about Restrictions on Interrogation of Detainees by the CIA from the Congressional Research Service’s “UN Convention Against Torture (CAT): Overview and Application to Interrogation Techniques“:


Army Field Manual  Restrictions on Cruel,  Inhuman, and Degrading Treatment 

On September 6, 2006, the Department of Defense implemented the requirements of the McCain Amendment by amending the Army Field Manual to prohibit the “cruel, inhuman, or degrading treatment” of any person in the custody or control of the U.S. military. Eight techniques are expressly prohibited from being used in conjunction with intelligence interrogations:

  • forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner;
  • placing hoods or sacks over the head of a detainee; using duct tape over the eyes;
  • applying beatings, electric shock, burns, or other forms of physical pain;
  • waterboarding;
  • using military working dogs;
  • inducing hypothermia or heat injury; conducting mock executions; and
  • depriving the detainee of necessary food, water, or medical care.
  • In addition, the Manual restricts the use of certain other interrogation techniques, but these restrictions may be due to other legal obligations besides those imposed by the McCain Amendment.

Restrictions on Interrogation of Detainees by the CIA

In October 2007, the New York Times reported that in early 2005, the DOJ issued a legal opinion, which remains classified, authorizing the use of certain harsh interrogation techniques by the CIA against terrorist suspects, including head-slapping, simulated drowning (waterboarding), and exposure to frigid temperatures. Later that year, as Congress considered enactment of the DTA, the DOJ reportedly issued another classified opinion declaring that these techniques would not be barred under the DTA, at least when employed against terrorist suspects with crucial information regarding a future terrorist attack. According to the New York Times, the memorandums “remain[ed] in effect, and their legal conclusions have been confirmed by several more recent memorandums” that are not publicly available. These opinions were the subject of controversy, with some Members of Congress disputing their legal conclusions and claiming that they had been unaware of the opinions’ existence at the time the DTA was considered, for it’s part, the Bush Administration claimed that appropriate congressional committees or Members were informed about interrogation techniques that had been approved by the Administration. According to CIA director Michael Hayden, the CIA waterboarded three high- level Al Qaeda suspects but had not used the technique since 2003.Gen. Hayden further stated in congressional testimony in 2008 that waterboarding was not a part of the current CIA interrogation program, and that “it is not certain that the technique would be considered to be lawful under current statute.”

On July 20, 2007, President Bush signed an Executive Order concerning the detention and interrogation of certain alien detainees by the CIA, when those aliens (1) are determined to be members or supporters of Al Qaeda, the Taliban, or associated organizations; and (2) likely possess information that could assist in detecting or deterring a terrorist attack against the United States and its allies, or could provide help in locating senior leadership within Al Qaeda or the Taliban.The Executive Order did not specifically authorize the use of any particular interrogation techniques with respect to detainees, but instead barred any CIA detention and interrogation program from employing certain practices. Specifically, the Order prohibited the use of:

  • torture, as defined under the Federal Torture Statute (18 U.S.C. § 2340);
  • cruel, inhuman, and degrading treatment, as defined under the DTA and the MCA;
  • any activities subject to criminal penalties under the War Crimes Act (e.g., murder, rape, mutilation);
  • other acts of violence serious enough to be considered comparable to the kind expressly prohibited under the War Crimes Act;
  • willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
  • acts intended to denigrate the religion, religious practices, or religious objects of the individual.

Although some types of conduct barred by the Order are easily recognizable (e.g., murder, rape, the performance of sexual acts), it is not readily apparent as to what interrogation techniques fell under the Order’s prohibition against acts deemed to be “cruel, inhuman, and degrading” or “beyond the bounds of human decency.” Certain interrogation techniques that have been the subject of controversy and are expressly prohibited from being used by the military under the most recent version of the Army Field Manual-waterboarding, hooding, sleep deprivation, or forced standing for prolonged periods, for example-were not specifically addressed by the Order. Whether or not such conduct was deemed by Bush Administration officials to be barred under the more general restrictive language of the Order is unclear.

On January 22, 2009, President Barack Obama issued an Executive Order rescinding President Bush’s order of July 20, 2007, and instituting new requirements for interrogation by the CIA and other agencies. The new Order generally bars anyone in U.S. custody or control while in an armed conflict from being subjected to any interrogation technique or treatment other than that authorized under the Army Field Manual. The Order does not preclude federal law enforcement agencies from continuing to “use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.”

The Executive Order also provides that when conducting interrogations, U.S. government officials, employees, and agents may not rely on any interpretation of the law governing interrogations issued by the Department of Justice between September 11, 2001 and January 20, 2009 (i.e., the final day of the Bush Administration), absent further guidance from the Attorney General. It further establishes a Special Interagency Task Force on Interrogation and Transfer Policies, chaired by the Attorney General, which is required to study and evaluate whether the interrogation practices and techniques in [the]Army Field Manual … when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies.

HEATHER GRAY produces “Just Peace” on WRFG-Atlanta 89.3 FM covering local, regional, national and international news. She can be reached at: hmcgray@earthlink.net.  

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