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Water Boarding as a Form of Criminal Interrogation in the US Analytical Essay


Introduction

This essay focuses on advanced interrogation with specific reference to water boarding as a form of criminal interrogation in the US. It shows that usages of torture and other advance techniques in order to obtain information from suspects are matters of debate even among people who oppose them. They claim that such approaches may be useful for obtaining information from suspects who have knowledge of impending and devastating crimes.

Advanced interrogation

According to Homeland Security, advanced interrogation “helps in enhancing the skills of law enforcement criminal investigators as they conduct interviews of victims, witnesses and suspects” (Homeland Security, 2012). Advance interrogation techniques are some of the techniques law enforcement officers apply during their interview sessions with suspects. Water boarding is among advanced interrogation techniques the CIA and the US military officers apply during interrogation of suspects.

For instance, the Bush administration allowed the use of water boarding in order to obtain information from terror suspects who were uncooperative. However, such methods can only appeal to both psychology and physical aspects of the suspects through severe pains and psychosomatic damages.

The US media introduced confusion whether to use to the term torture or advanced interrogation techniques to describe water boarding. However, they did not use the term torture while describing the use of water boarding. This implies that water boarding had new definitions from water people had known previously.

Water boarding

Water boarding is a method of torture where the interrogator pours water over the face of the suspect in order to divulge useful information. According to Rejali, water boarding actually refers to “two different interrogation techniques” (Rejali, 2009). The first method involves pumping of water directly into the stomach of the prisoner. It creates severe pain. The other method involves blockages of the nose and mouth, which restrict breathing (Rejali, 2009). This method is ‘slow-motion drowning’. It is the most common method since 17th century during the period of Dutch traders and British rivals.

This method causes the victim to suffer sensation that is similar to drowning. The method has the following effects on the victim:

  • Severe pain
  • Lung damages
  • Brain injuries
  • Dry drowning
  • Physical injuries due to struggling against restraints
  • Death
  • Mental damages

Some forms of physical effects may appear several months later after the ordeal and can last for many years.

According to Safire, the water board torture featured in 1970s reports (Safire, 2008a). Though interrogators use a range of specific methods in water boarding, they normally cover the victim’s face with nylons, cloth, or some other thin material (Safire, 2008b). The interrogator then pours water to the captive’s air passage. This creates an immediate gag reflex and results into a condition of drowning.

Water boarding has a long history in major conflicts. However, in 1800s, a number of countries in Europe abolished the use of water boarding as a form of interrogation because it was morally repugnant. However, this did not mark the end of water boarding. Countries continued to apply it in secrecy, and it became widespread in 20th century.

During the World War II, the Japanese and the US soldiers applied this method in Philippines. The Khmer Rogue of Cambodia also used water boarding to punish its own fellow citizens. The British applied water boarding in 1930s against Arabs and Jews in Palestine. In the 1970s, the dictators of Latin America found out that water boarding was the best method to punish political rebels.

It is also necessary to note that the UN banned water boarding and other extreme forms of torture. As a result, governments do not admit the use of water boarding during interrogation. However, some countries have changed their water boarding techniques and claimed that such new methods do not amount to torture.

The US Law and Water boarding

According to the Universal Declaration of Human Rights, any form of torture is illegal. Thus, in the past, the US has regarded water boarding as appropriate for water crimes as was the case of Yukio Asano. Water torture was among other forms of punishment Asano received.

After the 9/11 twin attacks, the US reviewed its usages of various methods of advanced interrogation techniques. This resulted into the modern ‘torture memos’. They include and support the use of enhanced interrogation techniques. The US argued that such techniques were necessary in prosecuting serious criminals. In this sense, the US reviewed its definition of torture, which deviated from the normal international definition.

In 2005, the US acknowledged the use of water for torture and submersion of heads into water as forms of examination during interrogation among terror suspects. Both methods applied the use of water on the victim. However, in 2006, the US released an intelligence manual following a series of criticism of its torture method. The new Human Intelligence Collector Operations abolished the use of water boarding by military officers during torture.

However, this new manual only applies the US military officers, but does not account for actions of CIA in use of water boarding techniques. However, some of the US officers argued that the Justice Department did not clarify whether the use of water boarding was illegal under the current laws.

According to War Crimes Act and international law, the usages of lethal methods during interrogation sessions are illegal. This suggests that officers who apply such techniques are liable for prosecutions under the war crimes. Such officers bear the responsibility for their actions of using lethal and illegal methods of interrogation.

In 2008, the Justice Department of the US started to investigate officers who permitted the use of advanced methods of interrogation under their watch. In the same year, the US Congress approved a bill that eliminated the application of water boarding and other adverse forms of interrogation techniques. As a result, President Bush supported the new law.

During 2009 when Obama administration took over, the President allowed the US officers to use the Army Field Manual as the only source of reference when dealing with criminals during interrogation. This deviated from the approach Bush had used.

International law and advanced forms of interrogation

States, which are signatory to the United Nations Convention Against Torture, have agreed to prohibit torture under any circumstance (Human Rights Watch, 2006). According to internal law, there is no exception to torture. The treaty declares, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (United Nations, 1948). In addition, the treaty highlights, “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment” (United Nations, 1948).

It is imperative to note that a number of signatories like the US have made special reservations and interpretation of what constitutes torture. This implies that the enforcement of such advanced interrogation techniques are difficult based on the State laws. On the contrary, the UN Human Rights Watch believes that water boarding falls under torture, and any State that violates provisions of human rights should face international laws. The UN believes that water boarding meets all the four methods of classifying torture under the United Nations Convention Against Torture (UNCAT).

The UN definition of torture recognises that the CIA forces water into the lungs of prisoners, which cause severe pain. Such effects can cause immediate deaths and severe horror. In addition, the consequences may even cause a heart attack due to injuries and stress to the lungs and shortage of oxygen to due inhalation of water. The point is that water boarding has significant physical pain and mental damages to the victims. Therefore, according to the UN, CIA’s water boarding techniques meet three conditions under the provisions of the treaty that classifies torture.

  • It is an intended act
  • It has a specific purpose
  • Performed by a State officials, in this case the CIA or other military officers

Therefore, we can concur that water boarding and other advanced interrogation techniques violate the human rights provision under international law.

In this sense, the use of water boarding technique as a form of interrogation makes officials involve liable for prosecution under war crime. On this note, we can argue that the US subjected Abu Zubaydah and other terror suspects under torture.

The Bush administration did not consider water boarding as a crime against human. The administrative lawyers have argued that water boarding did not constitute violate international law on human rights provisions because it did not constitute cruel human treatment.

After the term of President Bush in the office, others started to argue that President Bush had lost immunity and was liable for investigation and subsequent trial for the adoption and use of torture against terror suspects (Tushnet et al., 2006).

Classification of water boarding as torture

The use of water boarding as an advanced interrogation technique became a matter of public debate in the US after two serious claims to the DAIG team about practising such techniques and procedures (Greenberg and Dratel 2005, p. 725). It is important to note that politicians, war veterans, legal experts, human rights activists, intelligence officers, and judges believe that water boarding is a form of torture. Consequently, some States like the UK condemned the use of torture in 2008 through David Miliband (a former Foreign Secretary) (Rejali, 2009).

However, based on emerging arguments, some claim that it is not torture in some cases. The US also acknowledged that the “submersion of the head in water was a torture in other circumstances” (McCoy, 2006). In this regard, the UN responded that the USA should abolish the use of “any interrogation techniques, such as water boarding, which constitutes torture or cruel, inhuman, or degrading treatment or punishment” (McCoy, 2006).

However, in 2002, the US (the Office of Legal Counsel) released a report that claimed that water boarding was not torture and was appropriate during interrogation. The US maintained that water boarding did not cause any severe physical or mental pain. Thus, it did not meet methods of classifying torture, which required that any torture must be severe. Following such debates about torture, water boarding, and other advanced interrogation techniques, the Bush administration started to review some memos involving torture and water boarding.

Some scholars such as Professor Wilson Huhn claimed that water boarding amounted to torture. Such people have claimed that they underwent voluntarily water boarding and suffered pain and psychological injuries due to the experience. On the contrary, some commentators have claimed that water boarding was not torture while those who experienced the ordeal concluded that it was torture.

Water boarding training

The US uses water boarding training among its military officers and CIA divisions a form of advanced psychological preparation in cases of capture by opposing forces. However, some authors believe that the use of water boarding is dysfunctional culture among the US officers and CIAs (Jones, 2010). Before deployment to Iraq in 2008, many soldiers underwent water boarding as a part of Survival, Evasion, Resistance, and Escape (SERE) training.

The training became intense after the 9/11 attacks. The US soldiers used the methods applied in SERE training in Guantanamo Bay and other places in order to interrogation terror captives. According to experts, these soldiers “took good knowledge and used it in a bad way” (Williams, 2006). The soldiers applied same methods used in SERE training during interrogation of terror suspects. However, the US justified its stand on water boarding and stated that it used water boarding and other advanced techniques by the use of different techniques from those used in SERE training. These methods of water boarding concentrated in obstructing of breathing in different ways from those applied in SERE programmes.

The CIA and the use of water boarding

In the past (1981), the US punished a Texas Sheriff and his deputies under conspiracy to force admission from suspects. These people applied water boarding as a form of torture in order to obtain confessions for suspects. The method involved the use of towel in which these officers poured water over the towel placed on the nose and mouth of the victim. They watched for signs of movements, jerking, or signs of suffocation or drowning. The Court ruled that the sheriff and his deputies were guilty of using water boarding. Thus, water boarding was a form of cruelty (Rejali, 2009).

However, the CIA applies in water boarding among uncooperative terrorist prisoners like Abu Zubaydah (McCoy, 2006). They found out that suitable forms of interrogation tactics for such prisoners were advanced interrogation techniques, including the use of water boarding. As a result, in 2004, the Bush administration supported these methods. In 2005, the use of water boarding techniques made the CIA to claim that it used “a modern form of water boarding, along with five other enhanced interrogation techniques against suspected members of al Qaeda” (Paust, 2007).

However, in 2007, President Bush banned the use of torture when interrogating terror suspects. However, this executive order drew mixed reactions because it did not state water boarding specifically. The executive order referred to “torture as defined by 18 USC 2340, which includes the threat of imminent death as well as the US Constitution’s ban on cruel and unusual punishment” (Paust, 2007). As a result, the Human Rights Watch argued that “specific techniques banned were in the classified companion document and that the people in charge of interpreting that document did not have a good track record of reasonable legal analysis” (Human Rights Watch, 2006).

According to some CIA officials, the use of water boarding in the US during interrogation of terror suspects was legal. They maintained that the technique was relevant and lawful under the presidential findings of 2002 (Welch, 2006). During 2007, some former members of the CIA openly admitted that they used water boarding as advanced interrogation method against some terror suspects who were uncooperative. After these revelations, in 2008, on the use of water boarding on terror suspects, the Justice Department begun to probe the use of water boarding and its legality when dealing with al Qaeda terror suspects.

However, some sources claimed that in 2008, the Bush administration endorsed the use of water boarding and other advanced interrogation techniques against terror suspects by the CIA. These authorisation followed many requests from the CIA to adopt these methods. The CIA wanted a written permission from the White House in order to use such advanced techniques on terror suspects. It was only after such revelations that people believed that the CIA used water boarding as form of torture against al Qaeda terror suspects.

In 2009, Cheney acknowledged “the use of water boarding to interrogate suspects and stated that water boarding had been used with great discrimination by people who knew what they were doing, and it produced a lot of valuable information and intelligence” (Bentham, 2009). Some CIA officials did not believe that water boarding and other advanced interrogation techniques discouraged or disrupted several attacks as the Bush administration claimed (Welch, 2006).

In 2009, the US announced that it would delay the release of non-classified report on the CIA’s application of water boarding on terror suspects due to an ongoing civil lawsuit. However, there was doubt on the effectiveness of such a report based on advanced techniques the CIA used on terror suspects.

Conclusion

Advanced interrogation techniques are severe forms of interrogation used on prisoners in order to obtain useful information. Such forms of interrogation techniques have severe physical and psychological pain. In addition, they can result into immediate deaths of the victims.

The use of water boarding as a form of advanced interrogation method continued to be controversial in the US. However, the UN regards such techniques of interrogation as torture. Therefore, they are war crimes punishable by international law. From the UN perspective, we can argue that water boarding and other advanced interrogation techniques, which cause severe physical suffering and mental anguish, are forms of torture.

However, various states like the US have their diverse views on what constitutes torture, and the US claimed that water boarding was a legal means of interrogation. However, in 2008, the US approved laws than banned the use of water boarding as a form of interrogating terror suspects.

Given such varied perspectives on the use of water boarding, it is equally important to view from the perspective of the US Constitution. The US inherited the practice of water boarding from the history of Spanish Inquisition. However, this approach may not yield any favourable result because various administrations have various interpretations of water boarding and other advanced interrogation techniques. For instance, Bush favoured water boarding on terror suspects while Obama administration banned it.

Reference List

Bentham, J 2009, The Rationale of Punishment, Prometheus Books, New York.

Greenberg, K and Dratel, J 2005, The Torture Papers: The Road to Abu Ghraib, Columbia University Press, Columbia.

Homeland Security, 2012, Advanced Interviewing for Law Enforcement Investigators Training Program (AILEITP), https://www.fletc.gov/training-program/advanced-interviewing-law-enforcement-investigators

Human Rights Watch 2006, Human Rights Watch World Report 2006 (Human Rights Watch World Report), Seven Stories Press, New York.

Jones, I 2010, The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture, Encounter Books, New York.

McCoy, A 2006, A question of torture: CIA interrogation, from the Cold War to the War on Terror, Metropolitan Books, New York.

Paust, J 2007, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, Cambridge University Press, Cambridge, UK.

Rejali, D 2009, Torture and Democracy, Princeton University Press, New Jersey.

Safire, W 2008a, ‘On Language: Waterboarding’, The New York Times, no. 3, pp. 3-4.

Safire, W 2008b, Safire’s Political Dictionary, Oxford University Press, Cambridge.

Tushnet, M, Martin, F, Stephen, S, Wilson, R and Simon, J 2006, International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis, Cambridge University Press, Cambridge, UK.

United Nations 1948, United Nations Convention Against Torture Articles 2 & 5: Universal Declaration of Human Rights, UN, Geneva.

Welch, M 2006, Scapegoats of September 11th: Hate Crimes & State Crimes in the War on Terror (Critical Issues in Crime and Society), Rutgers, New Brunswick, NJ.

Williams, K 2006, American methods: torture and the logic of domination, South End Press, Boston.

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Tenebrous. "Water Boarding as a Form of Criminal Interrogation in the US." IvyPanda (blog), June 7, 2019. https://ivypanda.com/essays/water-boarding-as-a-form-of-criminal-interrogation-in-the-us/.

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Tenebrous. 2019. "Water Boarding as a Form of Criminal Interrogation in the US." IvyPanda (blog), June 7, 2019. https://ivypanda.com/essays/water-boarding-as-a-form-of-criminal-interrogation-in-the-us/.

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Tenebrous. (2019) 'Water Boarding as a Form of Criminal Interrogation in the US'. IvyPanda, 7 June.

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