Is Waterboarding Legal

In fact, waterboarding is widely considered to meet the definition of torture in the UN Convention Against Torture, which was ratified by the U.S. Senate in 1990. “Torture,” he says, is “any act by which a person is intentionally subjected to severe physical or mental pain or suffering in order to obtain from him information about a confession” and when done with the consent of a person acting in an official capacity. The International Committee of the Red Cross also deals with torture by waterboarding. And the U.S. executed a half-dozen Japanese generals after World War II who were convicted of torturing American POWs using techniques that included water torture. Opinions on the effectiveness of torture diverge and are the subject of intense and emotional debate. After extensive study, the Senate Intelligence Committee concluded that the CIA`s use of torture and other harsh interrogation techniques did not produce unique and critical information that had not been replicated elsewhere or otherwise obtained. In response, current and former senior CIA officials said the agency`s interrogation program, including the use of waterboarding, produced actionable information that led, among other things, to the identification of Osama bin Laden`s hideout in Abbottabad, Pakistan. On July 20, 2007, U.S. President George W. Bush signed Executive Order 13440, which prohibits torture during interrogation of terrorism suspects.

[151] Although the interrogation guidelines do not specifically prohibit waterboarding, the executive order refers to torture as defined in 18 USC 2340, which includes “imminent threat of death” as well as the United States. The prohibition of cruel and unusual punishment in the constitution. [152] The response to the order was mixed, with the CIA convinced it had “clearly defined” the agency`s agencies. Moreover, in international law, the distinction between torture and other cruel, inhuman or degrading treatment or punishment, even when relevant, does not render the latter legal. The UN Committee Against Torture had observed with respect to the United States that the Justice Department`s Office of Professional Accountability had conducted an investigation into the accuracy of the Bybee note and other Justice Department notes on waterboarding and other “enhanced” interrogation techniques for more than three years during the George W. Bush administration. [54] The OPR report concluded that former Deputy Attorney General John Yoo committed intentional malpractice and former Assistant Auditor General Jay Bybee committed professional misconduct. Those findings were rejected in a memo from Deputy Attorney General David Margolis, who noted that Yoo had exercised “poor judgment” but had not violated ethical standards. [55] [56] Commentators have pointed out that the memos omit important relevant precedents, including a precedent in Texas under then-Governor George W. Bush when the state sentenced a county sheriff to ten years in prison for waterboarding a criminal suspect.

[57] Bush did not pardon the sheriff. [57] Fratto described a number of steps that would be required before waterboarding or other coercive methods would be approved. He said the CIA director must submit a proposal to the attorney general, who must review the interrogation schedule to determine whether it is legal and effective. But if waterboarding isn`t considered torture, a president could argue that he or she has the right to order it — much like George W. Bush did during his administration. It is not certain that the waterboarding does not reach the threshold of seriousness to be qualified as torture. The threshold of gravity, which is decisive for distinguishing torture from other cruel, inhuman or degrading treatment or punishment, is a question of graduation, which is based on several elements, but cannot be limited to the presence of bodily harm. A relevant factor is the presence of lasting effects. The question then arises as to whether the experience of being subjected to a near-death experience by suffocation during detention has long-term effects. This is consistent with the notion of persistent psychological harm used in the Office of the Legal Counsel`s memorandum of 14 March 2003 [PDF], which is considered likely to cause “permanent, but not necessarily permanent, harm”. The memo even includes the development of post-traumatic stress disorder, which can persist for a longer period of time if left untreated, as a condition that could meet the requirement for prolonged harm.

Waterboarding was called illegal by U.S. generals during the Vietnam War. [124] On January 21, 1968, the Washington Post published a controversial cover photo of two American soldiers and a South Vietnamese soldier simulating a North Vietnamese prisoner of war near Da Nang. [9] The article described this practice as “fairly common.” [9] The photo resulted in the soldier being court-martialed. Military court within a month of its publication, and he was released from the army. [124] [125] Another waterboarding photo from the same scene, called in the caption “water torture,” is also on display at the War Remnants Museum in Ho Chi Minh City. [126] According to Lt. Col. Anthony Herbert`s reports, investigators confirmed that military interrogators from the 173rd Airborne Brigade “repeatedly beat prisoners, tortured them with electric shocks, and forced them to swallow water.” [127] The interrogators used a technique called “water cloth,” in which water was poured over a cloth covering the prisoner`s nose and mouth. [127] When reporting on the debate over the U.S. government`s use of waterboarding as an interrogation technique, U.S. journalists had to decide whether to use the term “torture” or “advanced interrogation techniques” to describe waterboarding.

The National Ombudsman for Public Radio explained this debate and why NPR decided not to use the word torture to describe waterboarding. [85] Due to criticism of the policy by the media[86] and directly by NPR, a second article was written to further explain their position and desire to describe the technique rather than simply as torture. [87] Subjecting a detainee to a near-death experience of drowning and suffocation during interrogation is clearly stricter treatment than the five techniques considered in Ireland v. European Court of Human Rights. Even if waterboarding cannot be considered torture, it is clear that it violates the 1984 UN Convention against Torture because the convention also prohibits other cruel, inhuman or degrading treatment or punishment. Other Republican officials have expressed less definitive views on whether waterboarding is torture. Andrew C. McCarthy, a former Republican lawyer, among others in the George W. The Bush administration has said that if waterboarding is used in “a number of cases that have not been expanded or extended,” it should not be considered torture under the law.

[61] McCarthy also stated that “waterboarding is close enough to torture that reasonable minds may disagree on whether it is torture” and that “there should not be much debate about how a person who is repeatedly subjected [to waterboarding] would cause the kind of psychological anguish required for torture.” [61] In 2007,[141] all special forces in all branches of the United States. The Army and the CIA`s Special Activities Division[142] used simulated drowning as part of survival, escape, resistance, and escape training to psychologically prepare soldiers for the possibility of being captured by enemy forces. [143] By 2002, many branches of the military had withdrawn from waterboarding trainees, at least in part, “because it was damaging morale,”[144] and in November 2007, the practice was banned by the Ministry of Defense because it “offered no educational or training benefit to the student.” [141] John Yoo, former deputy attorney general under President Bush, said the U.S. subjected 20,000 troops to waterboarding as part of SERE training before they deployed to Iraq and Afghanistan. [145] Dr. Jerald Ogrisseg, former chief of the psychological service at the Air Force SERE School, said in a statement to the U.S. Senate Armed Services Committee that there are fundamental differences between SERE training and what happens in real-world environments. [146] Dr. Ogrisseg goes on to explain that his experience is limited to SERE training, but that he did not believe that waterboarding was productive in either field. [147] But Fratto appeared to disagree, saying the Justice Department had reviewed waterboarding and “decided that its use was legal under certain circumstances and with safeguards.” The CIA is currently not allowed to use waterboarding, he said, adding that “we will not be able to speculate on what might happen in the future.” Did simulating the drowning of terrorism suspects yield actionable insights? During his tenure as head of the Department of Justice`s Office of Legal Counsel in 2003-2004, Jack Goldsmith stopped using waterboarding as an interrogation technique because he had serious concerns about its legality, but Goldsmith`s order was quickly rescinded by others within the George W. Bush administration.

[66] [70] Both houses of the U.S. Congress passed a bill in February 2008 that would prohibit waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for fiscal year 2008. As promised, President Bush vetoed the bill on March 8. His veto was on approving the entire intelligence budget for fiscal year 2008, but he cited the ban on waterboarding as the reason for the veto. [20] Supporters of the law did not have enough votes to overturn the veto. [241] With national security dominating the 2016 presidential race, GOP candidates, in particular, are being pushed to define their position on a contentious issue: how suspected terrorists should be questioned.