[DEBATE] : (WP 2007) Waterboarding prosecutions - only good enough for Japanese

[Miles Teg]

Waterboarding Used to Be a Crime

By Evan Wallach
Sunday, November 4, 2007; B01

As a JAG in the Nevada National Guard, I used to lecture the soldiers of 
the 72nd Military Police Company every year about their legal 
obligations when they guarded prisoners. I'd always conclude by saying, 
"I know you won't remember everything I told you today, but just 
remember what your mom told you: Do unto others as you would have others 
do unto you." That's a pretty good standard for life and for the law, 
and even though I left the unit in 1995, I like to think that some of my 
teaching had carried over when the 72nd refused to participate in 
misconduct at Iraq's Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and 
interrogation get more specific. One such set of questions relates to 
"waterboarding."

That term is used to describe several interrogation techniques. The 
victim may be immersed in water, have water forced into the nose and 
mouth, or have water poured onto material placed over the face so that 
the liquid is inhaled or swallowed. The media usually characterize the 
practice as "simulated drowning." That's incorrect. To be effective, 
waterboarding is usually real drowning that simulates death. That is,

the victim experiences the sensations of drowning: struggle, panic, 
breath-holding, swallowing, vomiting, taking water into the lungs and, 
eventually, the same feeling of not being able to breathe that one 
experiences after being punched in the gut. The main difference is that 
the drowning process is halted. According to those who have studied 
waterboarding's effects, it can cause severe psychological trauma, such 
as panic attacks, for years.

The United States knows quite a bit about waterboarding. The U.S. 
government -- whether acting alone before domestic courts, commissions 
and courts-martial or as part of the world community -- has not only 
condemned the use of water torture but has severely punished those who 
applied it.

After World War II, we convicted several Japanese soldiers for 
waterboarding American and Allied prisoners of war. At the trial of his 
captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces 
officers who flew in the Doolittle Raid and was captured by the 
Japanese, testified: "I was given several types of torture. . . . I was 
given what they call the water cure." He was asked what he felt when the 
Japanese soldiers poured the water. "Well, I felt more or less like I 
was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his 
captors. After Japan surrendered, the United States organized and 
participated in the International Military Tribunal for the Far East, 
generally called the Tokyo War Crimes Trials. Leading members of Japan's 
military and government elite were charged, among their many other 
crimes, with torturing Allied military personnel and civilians. The 
principal proof upon which their torture convictions were based was 
conduct that we would now call waterboarding.

In this case from the tribunal's records, the victim was a prisoner in 
the Japanese-occupied Dutch East Indies:

A towel was fixed under the chin and down over the face. Then many 
buckets of water were poured into the towel so that the water gradually 
reached the mouth and rising further eventually also the nostrils, which 
resulted in his becoming unconscious and collapsing like a person 
drowned. This procedure was sometimes repeated 5-6 times in succession.

The United States (like Britain, Australia and other Allies) pursued 
lower-ranking Japanese war criminals in trials before their own 
tribunals. As a general rule, the testimony was similar to Nielsen's. 
Consider this account from a Filipino waterboarding victim:

Q: Was it painful?

A: Not so painful, but one becomes unconscious. Like drowning in the water.

Q: Like you were drowning?

A: Drowning -- you could hardly breathe.

Here's the testimony of two Americans imprisoned by the Japanese:

They would lash me to a stretcher then prop me up against a table with 
my head down. They would then pour about two gallons of water from a 
pitcher into my nose and mouth until I lost consciousness.

And from the second prisoner: They laid me out on a stretcher and 
strapped me on. The stretcher was then stood on end with my head almost 
touching the floor and my feet in the air. . . . They then began pouring 
water over my face and at times it was almost impossible for me to 
breathe without sucking in water.

As a result of such accounts, a number of Japanese prison-camp officers 
and guards were convicted of torture that clearly violated the laws of 
war. They were not the only defendants convicted in such cases. As far 
back as the U.S. occupation of the Philippines after the 1898 
Spanish-American War, U.S. soldiers were court-martialed for using the 
"water cure" to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district 
courts. One was a civil action brought by several Filipinos seeking 
damages against the estate of former Philippine president Ferdinand 
Marcos. The plaintiffs claimed they had been subjected to torture, 
including water torture. The court awarded $766 million in damages, 
noting in its findings that "the plaintiffs experienced human rights 
violations including, but not limited to . . . the water cure, where a 
cloth was placed over the detainee's mouth and nose, and water producing 
a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his 
deputies with violating prisoners' civil rights by forcing confessions. 
The complaint alleged that the officers conspired to "subject prisoners 
to a suffocating water torture ordeal in order to coerce confessions. 
This generally included the placement of a towel over the nose and mouth 
of the prisoner and the pouring of water in the towel until the prisoner 
began to move, jerk, or otherwise indicate that he was suffocating 
and/or drowning."

The four defendants were convicted, and the sheriff was sentenced to 10 
years in prison.

We know that U.S. military tribunals and U.S. judges have examined 
certain types of water-based interrogation and found that they 
constituted torture. That's a lesson worth learning. The study of law 
is, after all, largely the study of history. The law of war is no 
different. This history should be of value to those who seek to 
understand what the law is -- as well as what it ought to be.

Evan Wallach, a judge at the U.S. Court of International Trade in New 
York, teaches the law

of war as an adjunct professor at Brooklyn Law School and New York Law 
School.

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201170_pf.html