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Charging Waterboarding As a War Crime: U.S. War Crime Trials in the Far East after World War II
By Wolfgang Form
I
NTRODUCTION
The discussion concerning water torture has gained momen-tum in recent years, particularly in the United States in connec-tion with the activities of the CIA during the recent war on ter-ror.
1
However, water torture has frequently emerged in United States history beginning with the
―
Philippine insurgency to World War II to the Vietnam War.
‖
2
In 1968, a report in the Washington Post aroused furor when it published a picture de-picting a U.S. soldier pouring water over a North Vietnamese
Dr. Wolfgang Form, Political Science and Peace and Conflict Studies, University of Marburg, Biegenstr, Germany; Member, Austrian Research Centre for Post-War Trials Advisory Board; Co-founder, Research and Documentation Centre for War Crimes Trials
–
ICWC (project co-ordinator). This publication is based on my Nov. 11, 2009 lecture held at Chapman University School of Law.
I thank ICWC‘s students Philipp
Graebke, Sascha Hoermann, Aoife Holmes, and Corinna Josefiak for excellent research assistance.
I‘m very grateful to Michael Bayzler from Chapman
University School of Law for very helpful discussions on my topic.
1
For an overview on waterboarding in the media see Neal Desai et al.,
Torture at Times: Waterboarding and the Media
, The Joan Shorenstein Center on the Press, Politics, and Public Policy, Harvard University (2010),
available at
http://www.hks.harvard.edu/ presspol/publications/papers/torture_at_times_hks_students.pdf. From its first mention of waterboarding in 1901 until 1925, the N.Y. Times rarely described waterboarding as torture, calling it torture or implying the practice was torture in only 11.9% of articles (10 of 84). Most often, water-boarding was not given any treatment (61.9% of articles had no treatment, or 52 of 84). This pattern of treatment changed with the next mention of water-boarding, in 1931, and remained generally consistent until another dramatic
shift, in 2004. […] From 1931 to 1999, NY Times journalists called waterboar
d-ing torture or implied that it was torture in 81.5% (44 of 54) of the articles. By contrast, from 2002
–
2008, waterboarding was called torture or implied to be torture in just 2 of 143 articles (1.4%). Notably, of these two articles, one was about waterboarding in Chile and made no mention of the U.S. The decrease in the use of the word torture corresponds to an increase in the use of no treat-ment and softer treatment. The use of softer treatment increased from 0% (0 of 54) between 1931 and 2002 to 45.5% (65 of 143) between 2002 and 2008. No treatment use increased from 9.3% of articles (5 of 54) from 1931 to 1999 to 28.7% (41 of 143) in 2002
–
2008.
Id.
at 7
–
8.
2
Id.
at 3.
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Chapman Journal of Criminal Justice
[Vol. 2:1
prisoner of war
‘
s (POW) cloth-covered face.
3
References to crimi-nal prosecutions of waterboarding in military courts appeared by the Spanish-American War, at the beginning of the 20th Centu-ry, when U.S. Army Major Edwin Glenn was sentenced for using
―
the water cure.
‖
4
Recently there have been an increasing num-ber of reports on the use of torture by U.S. government agencies during prisoner interrogations.
5
Former CIA agent John Kir-iakou said in an interview with ABC News that subjecting pris-oners to a procedure that simulated drowning was necessary and led to the extraction of important information.
6
Kiriakou was significantly involved in CIA missions following the 9/11 terrorist attacks and the interrogation of the first Al-Qaida suspect, Abu Zubaida.
7
This method of interrogation caused Abu Zubaida to submit in less than a minute. Thereupon he delivered infor-mation that was allegedly used to prevent an entire string of ter-rorist attacks.
8
Judge Evan Wallach clarifies the nature of what is called waterboarding as follows:
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 character-ize the practice as
―
simulated drowning.
‖
That
‘
s incorrect. To be ef-fective, water boarding is usually real drowning that simulates death.
3
Eric Weiner,
Waterboarding: A Tortured History
, NPR, Nov. 3, 2007, http://www.npr.org/templates/story/story.php?storyId=15886834.
4
Water torture was commonly inflicted on U.S. POWs during the American-Philippine War. G
ARY
D.
S
OLIS
,
T
HE
L
AW OF
A
RMED
C
ONFLICT
:
I
NTERNATIONAL
H
UMANITARIAN
L
AW IN
W
AR
462 (Cambridge University Press 2010); Weiner,
supra
note 3.
5
See e.g.,
David Johnston & James Risen,
The Reach of War: The Interrogations; Aides Say Memo Backed Coercion Already in Use
, N.
Y.
T
IMES
, June 27, 2004, at A27
available at
http://www.nytimes.com/2004/06/27/world/reach-war-interrogations-aides-say-memo-backed-coercion-already-use.html?fta=y; Alan Dershowitz, Op.-Ed.,
Covering Up the Coverup
, B
OSTON
G
LOBE
, May 15, 2004, at A15; Alan Dershowitz, Editorial,
Want to Torture? Get a Warrant
,
S
AN
F
RANCISCO
C
HRONICLE
, Jan. 22, 2002, at A19,
available at
http://www.alandershowitz.com/publications/docs/torturewarrants2.html; William Safire,
Waterboarding
, N.
Y.
T
IMES
M
AGAZINE
, Mar. 9, 2008, at 16.
6
See
M
ICHAEL
H
AAS
,
G
EORGE
W.
B
USH
,
W
AR
C
RIMINAL
?
T
HE
B
USH
A
DMINISTRATION
‘
S
L
IABILITY FOR
269
W
AR
C
RIMES
83 (Greenwood Pub. Group 2009);
See also
S
OLIS
,
supra
note 4, at 462.
7
Peter Finn & Joby Warrick,
Detainee‟s Harsh Treatment Foi
led No Plots,
W
ASH
.
P
OST
, Mar. 29 2009,
available at
http://www.washingtonpost.com/wp-dyn/content/article/ 2009/03/28/AR2009032802066.html;
Ex-CIA Officer Speaks Out Against Waterboarding
, NPR, Dec. 12, 2007, http://www.npr.org/templates/story/story.php?StoryId=17181403.
8
Joby Warrick & Dan Eggen,
Waterboarding Recounted: Ex-CIA Officer Says It
„Probably
Saved Lives‟ but is Torture
,
W
ASH
.
P
OST
, Dec. 11, 2007,
available at
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/10/AR2007121002091. html.
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Charging Waterboarding As a War Crime
249
That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, [and] taking water into the lungs[.] . . . The main difference is that the drowning process is halted. According to those who have studied water boarding
‘
s effects, it can cause severe psychological trauma, such as panic attacks, for years.
9
Waterboarding is a method of torture that does not leave any bodily traces and is therefore subsequently difficult to prove.
10
Louise Arbour, United Nations High Commissioner for Human Rights, stated,
―
I would have no problems with describing this practice as falling under the prohibition of torture.
‖
11
But there are still those who criticize this viewpoint.
12
The topic is particu-larly explosive when consulted against the historical background
9
Evan Wallach is a Judge on the U.S. Court of International Trade and a former JAG officer. Evan Wallach, Op-Ed.,
Waterboarding Used to be a Crime
, W
ASH
.
P
OST
, Nov. 4, 2007,
available at
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/ AR2007110201170.html [hereinafter Wallach, Op-Ed.].
10
Weiner,
supra
note 3.
11
A summary of the debate surrounding practices utilizing waterboarding as a method for interrogation has been outlined in various formats. E
DWARD
L.
A
YERS ET AL
., A
MERICAN
P
ASSAGES
:
A
H
ISTORY OF THE
U
NITED
S
TATES
964-65 (Wadsworth Publishing, 2nd
ed. 2009) (2003); P
HYSICIANS FOR
H
UMAN
R
IGHTS
&
H
UMAN
R
IGHTS
F
IRST
, L
EAVE
N
O
M
ARKS
:
E
NHANCED
I
NTERROGATION
T
ECHNIQUES AND THE
R
ISK OF
C
RIMINALITY
1-4
(2007)
available at
http://physiciansforhumanrights.org/library/documents/reports/leave-no-marks.pdf; Mica Rosenberg,
U.N. Says Waterboarding Should be Prosecuted as Torture
, R
EUTERS
UK, Feb. 8, 2008,
http://uk.reuters.com/article/idUKN0852061620080208.
12
See
Demetri Sevastopulo,
Cheny Endorses Simulated Drowning
, MSNBC, Oct. 26, 2006, http://www.msnbc.msn.com/id/15433467/ns/business-financial_times/#; Scott Shane,
Soviet-
Style „Torture‟ Becomes „I
n
terrogation,‟
N.
Y.
T
IMES
, June 3, 2007, at 43,
available at http://www.nytimes.com/2007/06/03/weekinreview/03shane.html
; Scott Shane, Da-vid Johnston & James Risen,
Secret U.S. Endorsement of Severe Interrogations
, N.Y.
T
IMES
, Oct. 4, 2007, at A1,
available at
http://www.nytimes.com/2007/10/04/ washington/04interrogate.html. Waterboarding is a very nasty technique for sure
–
but it is considerably differ-ent (particularly in the manner administered by the CIA) than, say, mutilation with electric drills, rape, splitting knees, or forcing a terrorist to watch his children suffer and die in order to try to elicit information from him. Water-boarding is a technique that has been routinely used in the training of some U.S. military personnel
–
and which the journalist Christopher Hitchens en-dured.
I certainly wouldn‘t
want to undergo waterboarding
–
but while a very harsh technique, it is one that was applied in part because it would do far less damage to a person than other techniques. It is also surely relevant that wa-terboarding was not used randomly and promiscuously, but rather on three known terrorists. And of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program, ac-
cording to Michael Hayden, President Bush‘s last CIA director, and former A
t-torney General Michael Mukasey
–
and of those, fewer than one-third were sub- jected to any of the techniques discussed in the memos on enhanced interrogation. Peter Wehner,
Morality and Enhanced Interrogation Techniques
, C
OMMENTARY
, Apr. 27, 2010,
available at
http://www.commentarymagazine.com/viewarticle.cfm/morality-and-enhanced-interrogation-techniques-15125.