Torture - It's Illegal

Commentary By Ron Beasley

There are those who believe waterboarding was effective, there are those who don't.  At this point neither side will change their minds.  Today former CIA director Porter Goss claims that the release of the torture memos will hurt cooperation in the WOT.

We must not forget: Our intelligence allies overseas view our inability to maintain secrecy as a reason to question our worthiness as a partner. These allies have been vital in almost every capture of a terrorist.

Yesterday counselor of the State Department from 2005 to 2006 and the executive director of the 9/11 commission, Philip Zelikow, said that the use of torture itself damaged that cooperation.

There is another variable in the intelligence equation: the help you lose because your friends start keeping their distance. When I worked at the State Department, some of America’s best European allies found it increasingly difficult to assist us in counterterrorism because they feared becoming complicit in a program their governments abhorred. This was not a hypothetical concern.

None of this is really relevant.  We are a nation of laws and if we become something else the terrorists have all ready won.  Until the Bush/Cheney cabal occupied the White House there was no doubt in any ones mind that waterboarding was illegal.

In a November, 2007 article in the Washington Post Evan Wallach explains that Waterboarding Used To Be A Crime.

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners. I'd always conclude by saying, "I know you won't remember everything I told you today, but just remember what your mom told you: Do unto others as you would have others do unto you." That's a pretty good standard for life and for the law, and even though I left the unit in 1995, I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq's Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and interrogation get more specific. One such set of questions relates to "waterboarding."

But there is little doubt we used to consider it a crime.

The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.

In an October, 2006 column Robyn Blumner quotes Wallach on the specifics of the Japanese convictions.

In "Drop by Drop: Forgetting the History of Water Torture in U.S. Courts," Judge Evan Wallach of the U.S. Court of International Trade has documented the trials in which the United States used evidence of water-boarding as a basis for prosecutions. The article, still in draft form, will be published soon by the Columbia Journal of Transnational Law.

Among the numerous examples, Wallach cites one involving four Japanese defendants who were tried before a U.S. military commission at Yokohama, Japan, in 1947 for their treatment of American and Allied prisoners. Wallach writes, in the case of United States of America vs. Hideji Nakamura, Yukio Asano, Seitara Hata and Takeo Kita, "water torture was among the acts alleged in the specifications ... and it loomed large in the evidence presented against them."

Hata, the camp doctor, was charged with war crimes stemming from the brutal mistreatment and torture of Morris Killough "by beating and kicking him (and) by fastening him on a stretcher and pouring water up his nostrils." Other American prisoners, including Thomas Armitage, received similar treatment, according to the allegations.

Armitage described his ordeal: "They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about 2 gallons of water from a pitcher into my nose and mouth until I lost consciousness."

Hata was sentenced to 25 years at hard labor, and the other defendants were convicted and given long stints at hard labor as well.

And there is a domestic example as well:

Wallach also found a 1983 case out of San Jacinto County, Texas, in which James Parker, the county sheriff, and three deputies were criminally charged for handcuffing suspects to chairs, draping towels over their faces and pouring water over the towel until a confession was elicited. One victim described the experience this way: "I thought I was going to be strangled to death. ... I couldn't breath."

The sheriff pleaded guilty and his deputies went to trial where they were convicted of civil rights violations. All received long prison sentences. U.S. District Judge James DeAnda told the former sheriff at sentencing, "The operation down there would embarrass the dictator of a country."

Yes it is illegal but torture is just one of the example of the lawlessness of the Bush administration.

Note:

See Steve's related post above.

Comments

[yogi-one]

It is good to see the blogosphere on fire about this issue. Everyone should go to Congress.org, enter their zip code to get a contact list of all the elected officials for their zip code (district up to White House level) and send your elected officials your opinion. Unless there is massive public outrage the politicians will follow their instincts to protect their own from prosecution and kowtow down to lobbying and military interests that would rather sweep the whole ugly mess under the rug.

The law, both US and international, and the Constitution, are not ambiguous on this issue. Torture is a crime, it has to be subject to investigation, due process in our public courts, and the applicable penalties and punishments are prescribed for those found guilty. Helping to cover up a crime is itself a crime. Knowing the details about a serious crime and refusing to report it are complicity in the crime.

Think about it: if you or I was caught running a torture operation in our basement, we would be subject to the laws, our crime would be investigated and prosecuted, and we would suffer the prescribed sentencing.

This applies to us because we are US citizens. The law applies equally to all US citizens. It is not optional to follow the law; it is breaking the law if you don't. The law applies to the President and the Vice President, the Secretary of Defense, the President's and Vice President's legal counsel, the Attorney General, because they are all US citizens, same as you or I. There is nothing in our Constitution that exempts public officials from the law. There is nothing in the Constitution that exempts very wealthy people from the law. No, it applies equally to all US citizens.

There is no ambiguity or gray area, and no complexity in that at all. The law is set, the terms are clear, and obstructing the application the law is itself a crime.

So all the arguments you hear justifying waterboarding are irrevelant. It doesn't matter if it worked. If you commit a crime, (such as robbing a bank), it doesn't become a legal act because it worked.

Since torture itself is defined as cruel, inhumane, and therefore immoral, there is no moral argument to justify it.

And since elected officials and wealthy people are not exempt from the law, they cannot pardon themselves for having committed the crime of torture.

So what's left is a litmus test for the citizens of the USA: are we nation of laws, or nation of outlaws simply acquiescing to whoever has the most money and political standing?

As it stands now, we have chosen the latter.

And you will see a much weaker and demoralized America as a result of that.