TORTURE

Waterboarding and Other Tactics

In 1988, the United States, along with several other nations, signed the declaration of the United Nations Convention Against Torture (reaffirmed in 1994), which defined torture as, “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed … or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person.”

Twenty years later, in 2008, President George Bush vetoed a Congressional bill that banned “water boarding” and other allegedly cruel tactics contemplated for possible use on foreign detainees held outside the United States. President Bush explained his veto, stating that the ban “would take away one of the most valuable tools in the war on terror.” The Bush Administration had consistently held that such tactics were neither torture nor illegal. As support, the Administration had consistently pointed to guidance received from the U.S. Department of Justice (DOJ) over the years.

Those “valuable tools” allegedly included, in addition to water boarding, extreme temperatures, head-slapping, and a number of combinations of the above. Water boarding is a technique involving the simulation of drowning. It involves binding a person to an inclined board, covering his or her head with cloth or cellophane, and pouring water repeatedly over the face and head. In some cases water actually enters the nose and mouth, but mostly, the sensation of water hitting the face (cloth or cellophane) causes a psychological reaction during which the brain processes information of drowning. This causes a gag reflex similar to choking.

The technique was brought to public attention in 2007, when certain internal memoranda of DOJ's Office of Legal Counsel (OLC) implied that military officials interrogating foreign detainees outside the United States answered to a different set of standards and definitions, especially those that explained what constituted prohibited “torture.” The memoranda were prepared in response to a request for legal advice and guidance from the Department of Defense (DOD). Specifically, they werer intended to give legal guidance to DOD lawyers wrestling with a list of interrogation methods for prisoners at the military prison at Guantanamo Bay in Cuba.

In simpler terms, the memoranda gave the military broad latitude and discretion to use relatively harsh interrogation methods without fear of prosecution or violation of constitutional restraints. The legal logic contained within the memoranda conveyed that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of Presidential powers during wartime. The memos also opined that many American and international laws would not apply to the treatment of detainees overseas.

According to the 2003 internal DOJ memoranda (not de-classified and released until 2008), a more narrow definition of torture applied to military interrogators. Similar to the memorandum written for the Central Intelligence Agency (CIA) in 2002, the 2003 memo offered the following definition of what constituted torture:

“The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result….”

The 2003 memorandum, authored by then-deputy counsel in the OLC, John Yoo, and finally released in April 2008, further advised, “If a government defendant were to harm an enemy combatant during an interrogation … he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network….”

Despite the wide latitude provided to interrogators under the memo's guidance, the OLC officially rejected the memos as containing “flawed reasoning,” and DOJ and Pentagon officials never authorized some of the more harsh interrogation methods used by the CIA. Moreover, no Pentagon officials had since found any senior Bush Administration officials as having been complicit in any of the abuse at Abu Ghraib prison in Iraq. (Inhumane treatment by U.S. military personnel of prisoners at Abu Ghraib in 2004 was first revealed to the world through Internet photographs showing prisoners made to strip, wear leashes and hoods, chains, and be threatened by menacing attack dogs.) However, their investigations did find that for several years following the September 11, 2001 attacks, the Pentagon admittedly failed to set uniform standards for military interrogations worldwide. The Bush administration maintained that the CIA's water boarding against three top al Qaida detainees, Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri was legal. The practice was halted in 2006.

Following this and other internal guidance and the debate it caused at the time, Congress passed the Detainee Treatment Act in 2005, requiring the DOD to restrict interrogation methods to those set out in the Army Field Manual, which banned coercive interrogations. In 2007, President Bush issued an executive order narrowing the list of approved techniques for the CIA. Although that list of authorized techniques remained classified, intelligence officials did state that water boarding was not on the list of approved techniques, but that President Bush could authorize it during an emergency.

Amid a new flurry of concern, White House Press Secretary Dana Perino responded to The Times report on October 4, 2007. Perino advised, “I am not going to comment on any specific alleged techniques. It is not appropriate for me to do so. And to do so would provide the enemy with more information on how to train against these techniques … but I will reiterate to you once again that we do not torture….”

In December 2007, amid congressional inquiry, the CIA declared that it had destroyed video tapes of the interrogations of some key Iraqi detainees. This was met with much skepticism and criticism by Congress. In early 2008, the House Judiciary Committee conducted its fifth hearing into the meaning and parameters of “torture,” particularly as applied to detainees held outside the United States. Called to testify, John Yoo declared executive privilege. David Addington, prior chief of staff to Dick Cheney, could not “recollect” matters of substance or interest. Former CIA Director George Tenet testified that the value of water boarding and other “enhanced” methods of interrogation “far exceeded” any other method(s). Former Attorney General John Ashcroft also testified in 2008 that water boarding was not torture, and had been approved by DOJ officials before being employed. All administration officials denied that any illegal “torture” was involved in military interrogations.