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Is Waterboarding Torture?

March 8, 2010

Despite the controversy now surrounding that question, legal precedent, dating back to at least 1898, has consistently decided in the affirmative. So yes, waterboarding is torture — or, at the very least, the United States government has consistently condemned waterboarding, up until very recently.

Jay Bybee, that fountain of prudence and rectitude, nevertheless did not include a discussion of the legal history of waterboarding in the Classified Bybee Memo. (He told the OPR that “it was reasonable” to rely on the work of his ‘extremely experienced staff'” — who evidently knew nothing of the matter [p. 237].)

Here is the OPR Report’s summary of the legal precedent:

The government has historically condemned the use of various forms of water torture and has punished those who applied it. After World War II, the United States convicted several Japanese soldiers for the use of “water torture” on American and Allied prisoners of war. American soldiers also have been court-martialed for administering the “water cure.” One such court-martial occurred for actions taken by United States soldiers during the American occupation of the Philippines after the 1898 Spanish-American War.

The general view that waterboarding is torture has also been adopted in the United States judicial system. In civil litigation against the estate of the former Philippine President Ferdinand Marcos, the district court found the “water cure,” in which a cloth was placed over a detainee’s mouth and nose and water poured over it to produce a drowning sensation, was both “a human rights violation” and a “form[] of torture.” In Re Estate of Marcos, Human Rights Litigation, 910 F. Supp. 1460, 1463 (D. Haw. 1995). The court’s description of the “water cure” closely resembles that of the CIA in its request to use enhanced interrogation techniques.

In addition the use of “water torture” was punished when it was used by law enforcement officers as a means of questioning prisoners. In 1983, Texas Sheriff James Parker and three of his deputies were charged by the Department of Justice with civil rights violations stemming from their abuse, including the use of “water torture,” of prisoners to coerce confessions. United States v. Carl Lee, 744 F.2d 1124 (5th Cir. 1984). All four men were convicted (p. 234-235).

The OPR Report concludes:

None of these cases involved the interpretation of specific elements of the torture statute. Nor are there sufficient descriptions in the opinions to determine how similar the techniques were to those proposed by the CIA. However, a thorough and balanced examination of the technique of waterboarding would have included a review of the legal history of water torture in the United States (p. 235).

Most certainly. Don’t be fooled be the phraseology: there is a world of difference between “thorough and balanced” and “fair and balanced.” The spirit of Bybee may live on in the latter phrase, but what the country needs right now is a lot more of the former.

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