Jesse Singal

November 13, 2007

Last week, Michael Mukasey became the new Attorney General of the United States after a brief but contentious confirmation battle in the Senate Judiciary Committee. The former federal judge’s confirmation hit a road bump when senators questioned him about U.S. torture policy. At issue was a practice known as “waterboarding” that the United States has used on some terrorism detainees, including alleged Al Qaeda plotter Khalid Sheikh Mohammad. While Mukasey described the technique as “repugnant,” he refused to describe it as torture or call it illegal, arguing that since he has not been briefed on how the United States uses the technique, he wasn’t in a position to make that judgment.

Given the substantial evidence suggesting that the United States has tortured a number of its terrorism detainees–sometimes in secret prisons, or “black sites,” located in foreign countries–Mukasey’s refusal to denounce waterboarding as torture raised serious concerns for many onlookers.

Opponents of waterboarding say that the technique is torture and is therefore off limits to anyone affiliated with the United States or its military. The Bush administration, for its part, has asserted that the president, as the executive-in-chief, has the power to ignore any law that infringes on his interpretation of broad executive power. And Bush’s top legal advisors redefined torture in ways that allowed the administration to ignore prohibitions against it.

As Mukasey begins his tenure at the Justice Department, it’s important to bring some clarity to this issue. The debate over waterboarding has centered on whether or not it’s torture. But, in fact, this is a settled question for those outside the Bush administration. As the United States continues to apprehend suspected terrorists, it is vital that Americans understand what is being done to detainees in their name, and any such understanding requires that they know the facts about waterboarding.

What Is Waterboarding?

There’s some debate over the precise definition of the term. New Yorker reporter Jane Mayer described it as a practice in which the victim “is bound and immersed in water until he nearly drowns.” Generally, though, it designates a more complicated procedure.

As the technique is usually practiced, the victim is strapped to an inclined board which is lowered so that his head is below his chest. A rag or towel is stuffed into the victim’s mouth (plastic wrap can also be used), and water is poured onto the victim’s face. The victim quickly begins inhaling the water, triggering a drowning sensation and full-blown panic responses. Few people can withstand waterboarding for more than a few seconds. Waterboarding is not “simulated drowning,” as some have called it. During the technique, water enters the victim’s lungs–so actual drowning is, in fact, slowly taking place.

Is It Torture?

Since U.S. and international laws tend not to outlaw specific practices like waterboarding, but rather torture itself, the question of whether this technique is torture serves as the linchpin for any argument about the practice.

When it signed the U.N. Convention Against Torture in 1988, the United States noted that “an act must be specifically intended to inflict severe physical or mental pain or suffering.” A recent Washington Post article stated that “according to those who have studied waterboarding’s effects, it can cause severe psychological trauma, such as panic attacks, for years.” As the Mukasey confirmation battle heated up, the president and chief executive officer of the American Psychological Association sent President Bush a letter calling on him to ban a number of “‘enhanced’ interrogation techniques,” including waterboarding, noting that all were considered torture under international law.

In addition, Allen S. Keller, the director of the Bellevue/NYU Program for the Survivors of Torture, explained to a Senate committee that waterboarding and similar techniques “are intended to break the prisoners down, to terrify them and cause harm to their psyche, and in so doing result in lasting harmful health consequences.” He also said that “[t]here is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs.”

Given that the experience of drowning is traumatic; that waterboarding brings with it potential for lasting physical and mental harm; that it appears to meet the definition of torture as understood by the U.S. with respect to the U.N. Convention Against Torture; and that the country’s most prominent association of psychologists has denounced the process as cruel, there’s little legitimate argument over whether the technique is torture. It absolutely is.

What Does Waterboarding Feel Like?

It feels like drowning, because that’s what it is. There are numerous accounts online from people who have been subjected to the technique, as well as video footage (this one’s difficult to watch, so don’t click if you’re squeamish). One disturbing description emerged from a 1947 trial of a Japanese war criminal. The witness, Filipino lawyer Ramon Navarro, had been waterboarded, and described his experience to an American prosecutor, referred to here as Col. Keeley:

Col. Keeley: And then did he take you back to your room?

Navarro: When Yuki [the defendant] could not get anything out of me, he wanted the interpreter to place me down below. And I was told by Yuki to take off all my clothes, so what I did was to take off my clothes as ordered. I was ordered to lay on a bench and Yuki tied my feet, hands and neck to that bench, lying with my face upward. After I was tied to the bench, Yuki placed some cloth on my face. And then with water from the faucet, they poured on me until I became unconscious. He repeated that four or five times.

You mean he brought water and poured water down your throat?

No sir, on my face, until I became unconscious. We were lying that way, with some cloth on my face, and then Yuki poured water on my face continuously.

And you couldn’t breathe?

No, I could not, and so I, for a time, lost consciousness. I found my consciousness came back again and found Yuki was sitting on my stomach. And then I vomited the water from my stomach, and the consciousness came back again for me.

Where did the water come out when he sat on your stomach?

From my mouth and all openings of my face … and then Yuki would repeat the same treatment and the same procedure to me until I became unconscious again.

How many times did that happen?

Around four or five times, from two o’clock up to four o’clock in the afternoon. When I was not able to endure his punishment which I received, I told a lie to Yuki … . I could not really show anything to Yuki, because I was really lying just to stop the torture.

What Do U.S., International, and Military Law Have To Say About Waterboarding?

The Geneva Conventions, the U.S.-signed international treaty concerning wartime treatment of civilians and prisoners, outlaws “cruel treatment and torture” of prisoners of war. In regards to interrogation, it states: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.”

Four retired judge advocates general (military lawyers) recently sent a letter to Sen. Patrick Leahy (D-VT) stating that waterboarding “is inhumane, it is torture, and it is illegal,” and that as recently as 2006 the military’s sitting JAGs unanimously agreed that waterboarding is off limits for U.S. personnel, due to the fact that the technique clearly violates the Geneva Conventions. They also stated:

This is a critically important issue–but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture–no less than wanton killing–is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact–as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well-established legal principles applicable to this issue. This must end.

There’s also no question that waterboarding is illegal in the United States. In April 2006, over a hundred law professors sent a letter to then-Attorney General Alberto Gonzales urging him to clarify the government’s stance on waterboarding. It read, in part:

The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”

Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. S 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. S 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

In other words, waterboarding is illegal according to not one but multiple laws, some of them overlapping, and in every possible jurisdiction.

President Bush has already shown that he sees himself as above the law when it comes to torture. The president’s view was enabled in part by the pliant, permissive Gonzales. If anything, Gonzales’s tenure has proven that it is vital that this president be surrounded by legal minds who understand that torture is not a matter of semantics or negotiation.

On the issue of waterboarding, a clear consensus has emerged among mental health professionals, military personnel, and lawyers around the world. Despite the bipartisan praise for Mukasey, his testimony on waterboarding was troublesome in its ambiguity, and serves as a worrisome preface to his tenure as attorney general.

Jesse Singal is an Associate Editor of Campus Progress.