Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Judge Even Wallach, one of the nation's most respected experts on the law of war, has an op-ed in the Washington Post pointing out what Andrew Sullivan has been pointing out for weeks as well, that the US has not only always considered waterboarding to be torture, but has aggressively prosecuted other nation's for war crimes for using that technique on American POWs.
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....
As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.
More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."
In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."
The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.
We can't have it both ways. If it's torture and war crime when others do it to us, it's torture and a war crime when we do it as well. Let's be blunt: this is grounds for an international war crimes trial against American officials, up to and including President Bush. And we have no defense against it, having called the same thing a war crime when others did it to us.
Comments
Good. Bush et all belong in jail. I hope they end up their and rot in hell for eternity. Oh. I don't believe in hell. Too bad. And the jail thing won't happen either. Sigh.
Posted by: writerdd | November 7, 2007 9:46 AM
I find the debate over whether or not water boarding constitutes torture to be a disturbing side show. The question we are being distracted from is whether we as a nation still have the moral character to reject torture.
I don't doubt that torture makes people talk. I do not believe that talking is the same as telling the truth. The Salem Witch trials are an example from our own history. Once the pain starts the subject's entire focus is on making the pain stop. It's not about telling the truth, it's about telling the torturer whatever it is they want to hear.
Posted by: Preston | November 7, 2007 10:02 AM
No, that question's already been settled. We don't have that character.
Posted by: gwangung | November 7, 2007 10:40 AM
I'm afraid the I have to side with Gwangung here, Preston. While I think individuals in America have the moral character to reject torture, I don't think that we, as a nation, have that character. Our current administration weasels torture as "enhanced interrogation techniques" (heard that one?). Our potential and previous attorney generals will not explicitly denounce torture techniques for fear of incriminating our executive branch. Plenty of talking heads (O'Reilly, Hannity, Coulter, etc.) keep shouting that "torture is good for America" (see Deroy Murdock's column in the National Review, or former Republican Congressman Joe Scarborough's morning broadcast).
And most people don't seem to pay it any attention. Most people don't even seem to be angry over it. Refer to the columns last week by the Marine General who clearly denounced water-boarding as torture (http://smallwarsjournal.com/blog/2007/10/waterboarding-is-torture-perio/).
Do we have the moral character to reject torture? Are the people who are torturing in the name of our nation facing punishment for destroying our reputation and lowering us ethically and morally?
Posted by: Tenax | November 7, 2007 11:48 AM
Words fail me:
Deroy Murdock, NRO Contributing Editor
http://article.nationalreview.com/?q=ZjNkYmU2NWVlOWE4MTU5MjhiOGNmMWUwMjdjZjU2ZjA=
Posted by: tacitus | November 7, 2007 11:56 AM
Here's a disturbing blog post I just came across about the American Psychological Association and its apparent willingness to lend credibility to the idea that torture is okay. A number of members are withholding their dues in protest, and of the administration has resigned.
Posted by: Gretchen | November 7, 2007 12:07 PM
I for one would rather see a mushroom cloud over a US city than see this nation go further down the road to fascism and legalized torture.
"The Constitution is not a suicide pact," but I'd rather live and die early a free man than have a long life in a police state.
Posted by: Robert Thille | November 7, 2007 12:43 PM
Any American who is proud of torturing prisoners, whether through waterboarding or any other means, is a sick twisted bastard and a war-criminal in spirit at least. Look at the company you find yourself in, for god's sake. Waterboarding was used by Pol Pot's goons in Cambodia, by Mao's lackeys in China, by the thugs of the Third Reich, and was part of the standard arsenal of the good old Inquisition employed by the Catholic Church to extract confessions of heresy. This is anti-American by any standard you care to examine, and nothing--nothing whatsoever--can justify it. The best that its proponents have been able to come up with so far is that torture is a hideous necessity--not something to be proud of. And they have fallen far short (I might point out) of demonstrating the need. As my nephew pointed out the other day, if there should come a situation where torture was necessary for survival--the ticking time-bomb concept--then torturers should engage in it with the full knowledge that they will be held to strict account. They should be aware as they torture that they are giving up their future freedom and quite possibly life itself in pursuit of a presumably greater good. Only that way can torture be kept in its proper place. Personally I doubt that such a scenario would ever come up in the real world--but anything less than putting life itself on the line is too low a bar.
We know that waterboarding and other forms of torture are wrong. Anybody who--like Mukasey--can't say that in so many words when asked is colluding with torturers. He is a traitor, not just to America, but to humanity.
Posted by: sbh | November 7, 2007 12:47 PM
I should point out that the administration and the right-wing demagogues are not America. The majority of Americans, according to a recent poll, recognize that waterboarding is torture and that we shouldn't do it.
The scary part is that those numbers aren't the same. There appears to be about 11% of Americans who recognize that waterboarding is torture, but think we ought to use it all the same.
Posted by: Skemono | November 7, 2007 2:19 PM
I for one would rather see a mushroom cloud over a US city than see this nation go further down the road to fascism and legalized torture.
The ultimate irony of the whole debate is, of course, that none of this torture is decreasing the likelihood of that mushroom cloud appearing. In fact it is making it more likely by the day.
Posted by: NoAstronomer | November 7, 2007 3:10 PM
Waterboarding, Abu Graihb (sp?), and Guantanamo have done more to recruit members for
Al Queda, morph our efforts to stamp out Al Queda into a real war, and extend the life of that war than all the countermeasures the Administration and its allies have undertaken.
People forget that Great Britain lost more people over about 30 years to the IRA and its allies than we lost on 9/11 and they've managed to not lose their cool. Why can't the US be as resolute instead of going off the deepend into childhood fantasies of beating up the kid next door whom you hated for being different.
Posted by: Keanus | November 7, 2007 9:58 PM
Keanus, this is more cynical than I usually am but the reason why the US isn't resolute let calm is that fear has brought in the vote. It appears that the tide is turning but the blemish on our country will take a long to to fade.
Posted by: rmp | November 7, 2007 10:05 PM
I hate it when I don't see the typo until after I submit. Obviously I meant why 'the US isn't resolute YET calm'.
Posted by: rmp | November 7, 2007 10:07 PM
I believe the thinking among many of those who support waterboarding is a. if we (meaning the U.S. government) have a person in custody, that automatically is an indication that this person has knowledge of a future terrorist plot and b. waterboarding will automatically lead to that person truthfully divulging the details of said plot. They don't seem to realize that a. or/b. may not always be the case with all suspects in U.S. government custody.
Posted by: daniel rotter | November 7, 2007 10:11 PM
Girly-men libruls just don't get it, do they?
RIGHTS are for the RIGHTEOUS!
Just lookit it this way. Say the America-hatin' do-gooders got their wish and the Terrorists in Gitmo got a trial just like if they was caught running a Stop sign instead of blowing up GIs in Iraq. And say you and 11 other honest American guys were put on the jury. You can bet that Abdul would get himself some fancy-pants ACLU lawyer who'd produce a line of witnesses, from Hillary Clinton to Noam Chomsky by way of the Mormon Tabernacle Choir, and they'd all swear on a stack of Communist Manifestos that poor ol' Abdul was playing pinochle in a palm tree and not firing rockets out of Osama's backside.
And would you and the other guys pay any attention to that "EVIDENCE"? Like Hell ya would! If he wasn't a camel-jockey terrorist, what was he in an orange jumpsuit for in the first place?
It's the same thing with EVILUTION too. You can get a chorus line of "scientists" to do a can-can while singing about about Darwin and fossils and DNA and anything else they can shake in a test-tube. THAT DON'T MAKE IT RIGHT! If you want EVIDENSE, you got it right between the covers of the King James Bible!
So who cares if our guys help Abdul wash the camel crap off his lips with a couple of buckets of water. If he didn't need it, why was he askin' for it?
(c) WorldNutDaily
(This piece is submitted in the interest of balanced reporting)
Posted by: Amadan | November 8, 2007 7:45 AM
Right -- an unbalanced screed submitted in the name of blanced reporting. 'Cause balance has to be balanced with imblance, and coherence is more coherent when it's balanced with incoherence. Or something...
Posted by: Raging Bee | November 8, 2007 8:40 AM
I think that was sarcasm.
(hope?)
Posted by: Vic | November 8, 2007 12:39 PM
I would like to direct your readers to this essay from the Small Wars Journal, written by Malcolm Nance, who has served our country for over 20 years in the military. The title is "Waterboarding Is Torture. Period."
http://smallwarsjournal.com/blog/2007/10/waterboarding-is-torture-perio/
Posted by: Liz D. | November 8, 2007 8:55 PM