Is waterboarding torture? Judge Mukasey says he doesn't know

Gary Solis [Adjunct professor, Georgetown University Law Center and former Marine Corps judge advocate and military judge]: "[During his Senate Judiciary Committee confirmation hearing last Thursday,] Attorney General-nominee Michael Mukasey could not or would not say if he considers waterboarding torture. "If it is torture, it is unconstitutional," he responded when asked. By now, most of us know what the interrogation technique of waterboarding is. It is widely reported and generally understood that the U.S. employs it. Waterboarding is often described as inducing the sensation of drowning. That bland description hardly does justice to the agony, distress, and terror that the enhanced interrogation technique induces in victims. But Judge Mukasey doesn't know if waterboarding is torture.

The U.S. Army has long known. During the U.S.- Philippine War (1899-1902), five Army officers, Major Edwin Glenn, Captain Cornelius Brownell, 1st Lieutenants Julien Gaujot, Edwin Hickman, and Preston Brown, were convicted by courts-martial for employing the "water cure" in interrogating Philippine prisoners. Although Brownell's victim, a local priest, died while being subjected to the water cure, Brownell's conviction was set aside on jurisdictional grounds. Army juries rejected the defense of "military necessity," recognizing the water cure for what it is. The Army's Judge Advocate General, the reviewing officer of Glenn's case, derisively noted, "the resort to torture is attempted to be justified…as the habitual method of obtaining information from individual insurgents." In the Vietnam War, Army Staff Sergeant David Carmon was disciplined after he was pictured torturing a prisoner with the water cure. But Judge Mukasey doesn't know if waterboarding is torture.

After World War II, several nations prosecuted former enemies for variations of waterboarding. The U.N. War Crimes Commission, in its Law Reports of Trials of War Criminals, details convictions for the near-drowning of prisoners during interrogations. The Sawada case was a U.S. military commission in which "the water treatment" of captured Doolittle raiders was a basis for convicting Sawada and others. A Norwegian military court convicted Karl-Hans Klinge of the same torture. American military commission convictions reported elsewhere include, U.S. v. Chinsaku Yuki, U.S. v. Yagoheiji Iwata, and U.S. v. Hideji Nakamura and Others, all resulting from the water treatment of American or Philippine prisoners. The Judgment of the International Military Tribunal for the Far East says, "The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops…. Among these tortures were the water treatment…." But Judge Mukasey doesn't know if waterboarding is torture.

U.S. domestic courts describe "the water cure" and "water torture" as human rights violations, and a means to coerce confessions, in In Re Estate of Ferdinand E. Marcos (D. Hawaii, 1995) and U.S. v. Lee (5th Cir., 1984). In Chile, the 2005 National Commission of Political Imprisonment and Torture, investigating abuses of the Pinochet era, documents the common use of water torture during interrogations. Argentine and Chilean criminal prosecutions continue today. But Judge Mukasey doesn't know if waterboarding is torture.

Some suggest that waterboarding cannot be torture because it is part of U.S. military Survival, Escape, Resistance, and Evasion (SERE) training. But the difference between medically-monitored training and real-world abuse is like being inoculated against a disease and being injected with the disease. They are hardly the same. It remains amazing that, in 2007, any intelligent person can have any question that waterboarding constitutes torture, morally and ethically wrong, and contrary to U.S. law, U.S.-ratified multi-national treaties, and international criminal law. But Judge Michael Mukasey doesn't know if waterboarding is torture."

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