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.