WATERBOARDING, TORTURE, WAR CRIME, PRESIDENT, A-G
There, we have it.
The United States prosecutes people for torturing our service people who fall into enemy hands.
This includes the water-torture, also called water-boarding.
If U.S. people commit this crime, we prosecute them criminally.
What about committing and prosecuting crime does Michael Mukasey, former federal prosecutor and federal judge, now GWB's candidate for U.S. Attorney-General, the chief law enforcement officer and setter of the moral tone for U.S. justice here and abroad, civilian and military, fail to understand.
He is unwilling to say that waterboarding is a crime.
Wny?
Perhaps because he'd have to investigate the president who appointed him and he fears what he might find as he went from CIA operative to Defense Secretary (Rumsfeld) to Cheney to Bush.
Bush is appointing this man because he knows he'll be protected.
Mukasey is unwilling to remove the protection. He seems more willing to protect a potential law-breaker than to vindicate the rule of law.
This is why his confirmation by the Senate should be rejected.
See the article by Evan Wallach, a former JAG officer and current judge and professor of law, below, in the Washington Post, 11/04/07, entitled "Waterboarding Used to be a Crime." I guess he thinks that Judge Mukasey has cast doubt on that given his view that the president can write his own laws, even those that supersede those written by Congress prohibiting degrading treatment of prisoners.
Senators Chuck Schumer of New York, who proposed Mukasey, a fellow New Yorker, and Diane Feinstein of California, both democrats, have announced that they will support the nomination. Diane's excuse is that Mukasey is not Gonzales. No, he's worse, because until now he enjoyed some credibility. What are these senators thinking, voting to confirm Mukasey? That there's one law for us and another for President Bush? Remember, it's not just President Bush as an individual that we're talking about, but his entire chain of command down to the soldier in the field who captures an enemy soldier, combatant, or supporter in or near the field of conflict, which may be a battlefield or, in the new war on terror, in a city, i.e. anywhere.
So, to say that the president has immunity because of his alleged constitutional power to override anti-crime laws passed by Congress (something we haven't heard of before) gives not only him a license to commit crimes because he thinks it find and dandy, but all who take under him. That's a lot of lawbreakers to wrap in the Constitution and permit to break the law. Congress represents the people, mind you, us, in order to make our laws. The president gets to carry them out, faithfully, not break them or invent his own, or make exceptions for his convenience.
The leading case on presidential duty to conform to the law as set forth by the people he serves, meaning as established by statute enacted by Congress, remains the Youngstown Steel (1952) case where Pres. Harry S Truman found to his chagrin that he could not take-over a steel company that locked out its workers to prevent a strike, as a war measure to keep the tanks and guns flowing during the Korean conflict when we had men dying in the field.
Those who weren't around then may recall this war from the TV program MASH, located there.
Congress had already denied the president take-over power to deal with labor disputes when it passed the Taft-Hartley Act in 1947. The president was held not to have the power independently to act in derogation of Congressional act.
Justice Jackson, in Youngstown, explained that the president's power was at its maximum when acting in accord with Congressional statute, and at its least when in opposition, and at its mid-level where Congress has not spoken to the point, statutorily.
Pres. Bush, in his treatment of captives policy, assuming that the reports of extraordinary rendition, failure to bring captives to court, and mistreatment of prisoners is true, as in Abu Ghraib and Guantanamo, is acting against statute and treaties of the United States.
It's a terrible thing to have a rogue president.
Given the make-up of the Court, now, with two arch-conservatives (Roberts and Alito) added by Bush to the other two, Scalia and Thomas) it is likely that if the question came up as to whether the president had the power under the Constitution to override acts of Congress making certain conduct a crime, that there might be another 4:4 split, with Stevens, Souter, Ginsberg, and Breyer in opposition.
Anthony M. Kennedy, is likely to be the tip-weight, the decider as to the Decider GWB, as usual. He's an avowed conservative that will pull him one way, but he has a humane streak that may tend to favor the rule of law in a case like this.
By Evan Wallach
Sunday, November 4, 2007; B01
As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners. I'd always conclude by saying, "I know you won't remember everything I told you today, but just remember what your mom told you: Do unto others as you would have others do unto you." That's a pretty good standard for life and for the law, and even though I left the unit in 1995, I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq's Abu Ghraib prison.
Sometimes, though, the questions we face about detainees and interrogation get more specific. One such set of questions relates to "waterboarding."
That term is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is,
the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.
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.
In this case from the tribunal's records, the victim was a prisoner in the Japanese-occupied Dutch East Indies:
A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.
The United States (like Britain, Australia and other Allies) pursued lower-ranking Japanese war criminals in trials before their own tribunals. As a general rule, the testimony was similar to Nielsen's. Consider this account from a Filipino waterboarding victim:
Q: Was it painful?
A: Not so painful, but one becomes unconscious. Like drowning in the water.
Q: Like you were drowning?
A: Drowning -- you could hardly breathe.
Here's the testimony of two Americans imprisoned by the Japanese:
They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness.
And from the second prisoner: They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.
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 know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be.
Evan Wallach, a judge at the U.S. Court of International Trade in New York, teaches the law
of war as an adjunct professor at Brooklyn Law School and New York Law School.
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