Waterboarding
[26] The CIA's Office of Medical Services noted in a 2003 memo that "for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness".
[27] In an open letter in 2007 to U.S. Attorney General Alberto Gonzales, Human Rights Watch asserted that waterboarding can cause the sort of "severe pain" prohibited by 18 U.S.C.
[6] Waterboarding is considered to be torture by a wide range of authorities, including legal experts,[6][28][29] politicians, war veterans,[30][31] intelligence officials,[32][33] military judges,[34] and human rights organizations.
These findings were dismissed in a memo from Associate Deputy Attorney General David Margolis, who found that Yoo showed "poor judgment" but did not violate ethical standards.
Andrew C. McCarthy, a former Republican prosecutor including in the George W. Bush administration, has stated that when used in "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law.
[73]On January 15, 2009, U.S. President-elect Barack Obama's nominee for Attorney General, Eric Holder, told his Senate confirmation hearing that waterboarding is torture and the President cannot authorize it.
[84] In Joos de Damhouder's Praxis rerum criminalium (1554), a manual on the practice of criminal law, the chapter on torture and interrogation is illustrated with a woodcut of waterboarding, which it describes in detail.
[88][89][90][91] In one case, the torturer applied water three or four times successively until the victim's "body was swollen twice or thrice as big as before, his cheeks like great bladders, and his eyes staring and strutting out beyond his forehead".
In Alabama, in lieu of or in addition to other physical punishment, a "prisoner was strapped down on his back; then 'water [was] poured in his face on the upper lip, and effectually stop[ped] his breathing as long as there [was] a constant stream'.
[99] President Theodore Roosevelt privately rationalized the instances of "mild torture, the water cure" but publicly called for efforts to "prevent the occurrence of all such acts in the future".
His book La Question, published in 1958 with a preface by Jean-Paul Sartre subsequently banned in France until the end of the Algerian War in 1962,[116] discusses the experience of being strapped to a plank, having his head wrapped in cloth and positioned beneath a running tap: The rag was soaked rapidly.
[121] After reports by Lieutenant Colonel Anthony Herbert, investigators confirmed that military interrogators of the 173rd Airborne Brigade "repeatedly beat prisoners, tortured them with electric shocks and forced water down their throats".
[124] The practice was perfected by Duch's lieutenants Mam Nai and Tang Sin Hean[125] and documented in a painting by former inmate Vann Nath, which is on display in the Tuol Sleng Genocide Museum.
[138] By 2002, many branches of the military had backed away from waterboarding trainees, at least in part "because it hurt morale",[139] and in November 2007 the practice was banned by the Department of Defense because it "provided no instructional or training benefit to the student".
According to a previous account by former CIA officer John Kiriakou, Abu Zubaydah broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning.
[177] Legal experts cast serious doubt as to the validity of Mohammed's "confessions" as being false claims, and human rights activists raised serious concerns over the "sham process" of justice and use of torture.
Former Attorney General Michael Mukasey criticized the Obama administration for denying future missions the intelligence capability that made the raid possible: "Acknowledging and meeting the need for an effective and lawful interrogation program, which we once had, and freeing CIA operatives and others to administer it under congressional oversight, would be a fitting way to mark the demise of Osama bin Laden.
"[190] CIA Director Leon Panetta, who supervised the operation that found and killed bin Laden, stated in an interview with NBC reporter Brian Williams: "...they used these enhanced interrogation techniques against some of these detainees.
"[191] Republican Senator John McCain, in a Washington Post opinion piece,[65] disputed Mukasey's account, saying: I asked CIA Director Leon Panetta for the facts, and he told me the following: The trail to bin Laden did not begin with a disclosure from Khalid Sheik Mohammed, who was waterboarded 183 times.
[193][194] U.S. Attorney General Eric H. Holder Jr. announced on 30 August 2012 that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the interrogations carried out by the CIA.
[196] According to the New York Times the closing of the two cases means that the Obama administration's limited effort to scrutinize the counterterrorism programs, such as waterboarding, carried out under President George W. Bush has come to an end.
"[192]: 33 Nonetheless, with the active support of former Vice President Dick Cheney, the CIA embraced the torture approach proposed by two psychologists, James Elmer Mitchell and Bruce Jessen, neither of whom had interrogation experience.
This was affirmed by Saadi v. Italy in which the European Court of Human Rights, on 28 February 2008, upheld the absolute nature of the torture ban by ruling that international law permits no exceptions to it.
[214]Lieutenant General Michael D. Maples, the director of the Defense Intelligence Agency, concurred by stating, in a hearing before the Senate Armed Services Committee, that he believes waterboarding violates Common Article 3 of the Geneva Conventions.
[216] Shortly before the end of Bush's second term, news media in other countries were opining that under the United Nations Convention Against Torture, the U.S. is obligated to hold those responsible to account under criminal law.
[229] On 6 September 2006, the U.S. Department of Defense released a revised Army Field Manual entitled Human Intelligence Collector Operations that prohibits the use of waterboarding by U.S. military personnel.
That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous "Night and Fog Decree".
[235]On 22 February 2008, Senator Sheldon Whitehouse made public that "the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies.
"[236][237] Both houses of the United States Congress approved a bill by February 2008 that would ban waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for Fiscal Year 2008.
[239] On 22 January 2009, President Barack Obama signed Executive Order 13491, which requires both U.S. military and paramilitary organizations to use the Army Field Manual as the guide on getting information from prisoners, moving away from the Bush administration tactics.
