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March 7, 2008
IS WATERBOARDING TORTURE?
Houston Criminal Attorney Discusses Reality of Waterboarding, Torture and the Taint on Confessions Obtained from its Use
The United Nations’ High Commissioner for Human Rights certainly believes that waterboarding is torture. Louise Arbour in January joined with UN special rapporteur on torture Manfred Nowak in the wake of admissions by CIA Director Michael Hayden that the agency had used waterboarding on three terror detainees. Despite the Hayden admissions, the CIA called upon the U.S. Justice Department to investigate whether statements by former CIA agent John Kiriakou to various media organizations about waterboarding violated laws prohibiting the release of classified information.
On the heels of this simmering international controversy, U.S. Director of National Intelligence Mike McConnell conceded in an article published in the New Yorker Magazine that waterboarding is torture. The question of whether waterboarding is torture featured prominently in the confirmation hearings last year of U.S. Attorney General Michael Mukasey who never provided Congress with a definitive answer as to whether he considered waterboarding torture.
“[But] for me it would be torture,” McConnell declared.
In the wake of the Hayden admissions, Democrats in Congress urged Attorney General Mukasey to investigate the CIA’s admitted use of waterboarding. Mukasey rejected the Congressional demand for an investigation, pointing out that it would inappropriate to hold the intelligence agency responsible for employing the waterboarding technique because it had relied upon a Department of Justice opinion that the practice was legal.
Hayden tried to still the controversy by informing the U.S. House Intelligence Committee that he had in 2006 officially prohibited CIA agents from using this interrogation technique. He pointed out that the technique had not been used in five years. He said recent Supreme Court decisions and laws passed by Congress in 2002 and 2003 probably made the technique illegal, even though the Bush White House has continued to defend the technique’s legality.
While Mukasey rejected the Congressional call to investigate the CIA, he did order an “internal” probe to determine if the DOJ acted properly and within the scope of the law when it gave the CIA the nod of approval to use waterboarding as an interrogation technique. This probe is being handled by the DOJ’s Office of Professional Responsibility.
In an apparent effort to provide some constitutional cushion to the Bush administration, U.S. Supreme Court Justice Antonin Scalia on Tuesday, February 12, 2008, gave an interview to Law In Action on BBC Radio 4 during which he defended “harsh physical interrogation techniques” in order to deter an “immediate threat.” Astonishingly, Scalia said that “so-called torture” may not necessarily violate the Eighth Amendment’s “cruel and unusual punishment” provisions because the amendment was intended to apply only to criminal punishments.
“Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution?” Scalia asked.
The associate justice added that the Eighth Amendment was designed to prevent someone from “smacking someone in the face … in a prison context. You can’t go around smacking people about.”
Scalia then asked: “Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.”
Scalia then closed his interview with criticism of European opposition to the death penalty, calling it “self-righteous.” The Supreme Court justice presupposed that most Europeans “probably privately” support the death penalty.
Scalia’s comments contrast with his fellow conservative ideologue, Clarence Thomas, who has repeatedly said that he doesn’t believe the Eighth Amendment applies to prison punishments.
Scalia’s comments, and the earlier controversy swirling around the CIA’s admitted use of waterboarding, are significant because the same day the Supreme Court justice conducted his BBC interview the Bush administration announced plans to charge six Guantanamo detainees – the “worst of the worst” as they were described by administration officials – with the deaths of nearly 3000 people killed in the 9/11 attacks and to seek the death penalty against them.
Carol Eisenberg, writing for the Knight Ridder Tribune Business News, pointed out there would be serious constitutional hurdles to leap before a successful prosecution could be achieved:
“But to legal experts, the prosecution of the alleged plotters is fraught with legal peril, all the more because, as a death-penalty case, it will draw greater scrutiny. The biggest vulnerability for the government is likely to be its admission it subjected at least one of the detainees, alleged 9/11 mastermind Khalid Sheikh Mohammed, to waterboarding in the course of CIA interrogations -- raising questions about whether a judge will accept his confession, and other information gleaned from coerced interrogations, into evidence. Further complicating matters is the fact that all but one of the men were transferred to Guantanamo from secret CIA detention camps, according to Human Rights Watch.”
"I think this is going to end up being a PR disaster for the United States, quite frankly," David Glazier, a former Navy officer and a professor at Loyola Law School in Los Angeles, was quoted by Eisenberg. "The process has fared badly each time it's been exposed to public scrutiny," [speaking about the military commission hearings devised by Congress]. "By bringing these high-level defendants forward, you're going to invite a whole new level of criticism. Then, with the additional complication of treating these as capital cases, you double the attention."
Air Force Brig. Gen. Thomas Hartmann said the Pentagon would charge the six detainees with 169 separate acts in connection with “a long-term, highly sophisticated, organized plan by al-Qaida to attack the United States of America.”
“ … The charges must be approved by Judge Susan Crawford, a former military appeals court official, who as the commissions' convening authority, has authority to accept, reject or revise them,” Eisenberg wrote. “Regardless of government assertions, Glazier argued a conviction would be credible in the court of world opinion only if the judge excludes information obtained from interrogations as a result of alarm over coercive techniques. U.S. federal courts prohibit the use of coerced confessions, but military commissions allow such testimony if the interrogation took place before 2006, and if the military judge finds the evidence ‘reliable’ and ‘in the interests of justice.’ Defense Department officials would not say yesterday whether prosecutors intended to use information produced by coercive interrogations -- or what else their case against the six men might include.’
Gen. Hartmann stressed that each defendant would receive "a fair trial consistent with American standards of justice … including the right to call witnesses and to cross-examine prosecution witness." The general refused to speculate about whether prosecutors would attempt to use information obtained through harsh interrogation techniques, like waterboarding.
"The question of what evidence will be admitted, whether waterboarding or otherwise, will be decided in the courts in front of a judge, after it's fought out between the defense and the prosecution," he said.
Legal experts have suggested that such a high-profile case would take years to prosecute, with the possibility that it could be shut down before its completion by either a new administration or by intervention of the U.S. Supreme Court.
Still others question the timing of the Pentagon announcement to seek the death penalty against the high-profile detainees. In the fall of 2007 Air Force Col. Morris Davis, the former lead prosecutor at Guantanamo, resigned after he accused the Bush administration of pushing for the conviction of these detainees to influence the 2008 elections. The Defense Department immediately rejected Morris’ accusations, saying there was no political motive involved in who would or would not be prosecuted. But others are not so sure.
"Why is it now, in the midst of a presidential election season, that the charges are being pressed?" asked Scott Horton, a professor at Columbia University Law School. "These guys have been held for many, many years."
Whatever the motive, torture accusations will play a prominent role in the trial, especially waterboarding. While Attorney General Mukasey may not be able to determine if waterboarding is torture, the simulated-drowning technique has been utilized as a method of torture for centuries. University of Pennsylvania historian Ed Peters in February told National Public Radio the technique has been known as the “water cure” or tormenta de toca. Peters said it waterboarding was a “normal incident of law [enforcement]” in the effort to extract confessions from suspects before the period of Enlightment.
NPR reported that Americans first used the waterboarding torture technique during the Spanish-American War. At least one American soldier was tried and convicted of using this interrogation technique. An Army judge advocate called it “torture,” although President Theodore Roosevelt would later defend its use in a letter: “The enlisted men began to use the old Filipino method: the water cure. Nobody was seriously damaged.”
However, the United States in 1947, following Japan’s defeat in World War II, convicted a Japanese officer named Yukio Asano of using waterboarding on American civilians and sentenced him to 15 years at hard labor. And in 1968 the Washington POST published a photograph of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption under that photo said the technique produced “a flooding sense of suffocation, drowning, meant to make him talk.” The Army launched an investigation and two months later court-martialed the American soldier shown in the photo.
NPR reported that waterboarding has been used on U.S. soil. It pointed to the case of Texas Sheriff James Parker who, along with three deputies, was charged in 1983 with “handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions.” They were all convicted and sentenced to four years in prison.
There is little doubt that waterboarding is both torture and a crime. But the military tribunals that will try to cases of the six 9/11 detainees will have far less restrictive, protective rules of evidence than those employed in a civilian court. Evidence of waterboarding, and other forms of torture, may be conceded by military prosecutors but who will argue that any evidence obtained by torture was subsequently corroborated by independent investigative methods.
It can reasonably be assumed that torture, although illegal, will not stop these military prosecutions. It will not be until a new President, with an administration dedicated to the fundamental democratic ideals of liberty and justice, takes office that we can hope to inject some sanity into this process and help The United States begin the process of rehabilitating its tattered image around the world. America is the land of the free and should treat all those under her control as she would treat her own.
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