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If Drowning a Man 183 Times is not Torture, What Is?

“We do not torture.” — President George W. Bush, November 7, 2005

“The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals.” — President Barack Obama, April 16 2009

“No one is above the law.” — Attorney General Eric Holder, January 15, 2009

18 USC 2340 — The Law.


The Law

Chapter 18 of United States Code, Section 2340 defines the act of “torture” to include the threat of imminent death. The same section of federal law specifies that U.S. citizens, U.S. nationals, and even foreign agents of the United States who commit torture, whether here or overseas, whether against an American or a foreigner, “shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” Finally, the same federal law stipulates that “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”


The Acts

“Three Cheers For Waterboarding… Waterboarding is something of which every American should be proud.” — Human Events, November 2, 2007

The New York Times reports today that one individual, detained indefinitely without charge by the United States, was waterboarded 183 times by agents of the U.S. government, while another detained individual was waterboarded by the U.S. at least (and possibly more than) 83 times. This is not an exhaustive list of the individuals waterboarded by the government, but rather (as originally reported by emptywheel at Firedoglake) a detail emerging in a footnote to one of the torture memos released by the Obama administration last week. This footnote was redacted in most copies of the released memos; the only reason we know one person was waterboarded 183 times and another person was waterboarded at least 83 times is that someone in the Obama administration failed to apply the black pen thoroughly. How many more detainees were waterboarded, how many times? The answer is still unknown.

“In Guantanamo, torture is being practiced, despite the many denials of leaders. I think of what Vice President Cheney said, that waterboarding is ‘a little dunking in the water.’ And many of our friends in the press talk about waterboarding, calling it ‘simulated drowning.’ My friends, there is nothing simulated about waterboarding; it is drowning! It is torture. The only difference between drowning and waterboarding is that they don’t let you die, because they want you to live and suffer the pain.”

Orlando Tizon, January 11 2008

What is waterboarding? For one introduction, consider the testimony of Eric Lomax, an American a Scottish soldier who was waterboarded by the Japanese during World War II:

A bench had been placed out in the open. I was told by the interpreter to lie down on it, and I lay on my front to protect my bandaged arms by wrapping them under the seat. But the NCO quickly hauled me upright again and made me lie on my back while he tied me to the bench with a rope…. The NCO suddenly stopped hitting me. He went off to the side and I saw him coming back holding a hosepipe dribbling with water…. He directed the full flow of the now gushing pipe onto my nostrils and mouth at a distance of only a few inches. Water poured down my windpipe and throat and filled my lungs and stomach. The torrent was unimaginably choking. This is the sensation of drowning, on dry land, on a hot dry afternoon. Your humanity bursts from within you as you gag and choke. I tried very hard to will unconsciousness, but no relief came.

Journalists Brian Ross and Richard Esposito revealed some of the details regarding U.S. waterboarding procedure in September 2006:

Fourteen high value prisoners they have kept in secret prisoners and they have used these coercive techniques, that is the most harshest of the treatments and that’s where a man is put upside down, they put a cellophane or a cloth over his mouth, they pour water, it gives the impression that the person is drowning. Now, some people liken it to a mock execution. It’s very tough to withstand. When the CIA officers who are trained in these interrogations go through it themselves, some of them couldn’t last more than 35, 40 seconds.

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda’s toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

“The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” said John Sifton of Human Rights Watch.

“it gives the impression that the person is drowning.” “mock execution.” “terrifying fear of drowning.” “When the CIA officers who are trained in these interrogations go through it themselves, some of them couldn’t last more than 35, 40 seconds… an average of 14 seconds before caving in.” “the person believes they are being killed.” These are descriptions that match the legal definition of torture as the “threat of imminent death.”

Bush-era Office of Legal Counsel lawyer and Assistant Attorney General Jay Bybee wrote an August 1, 2002 memo describing the procedure:

Finally, you would like to use a technique called the “water-board.” In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air now is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a beight of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application.

“The perception of drowning” = the threat of imminent death. It’s not just me saying it. Jay Bybee goes on to say it himself in that same memo:

We find that the use of the waterboard constitutes a threat of imminent death. As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning. Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject’s mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.

Bybee goes on in the memo to develop a legal theory that because he supposes the threat of imminent death does not lead to mental anguish that lasts for months or years, it doesn’t really count as torture. I’m not kidding; that’s Bybee’s standard: if you feel better after a few weeks, it’s not torture.

Four years later, on May 10 2005, Assistant Attorney General Steven Bradbury wrote another official memo (see page 41 and following) reconsidering Bybee’s depiction and legal treatment of waterboarding:

We previously concluded that the use of the waterboard did not constitute torture under sections 2340-2340A. We must reexamine the issue, however, because the technique, as it would be used, could involve more applications in longer sessions (and possibly using different methods) than we earlier considered….

This technique could subject a detainee to a high degree of distress. A detainee to whom the technique is applied will experience the physiological sensation of drowning, which likely will lead to panic. We understand that even a detainee who knows he is not going to drown is likely to have this response. Indeed, we are informed that even individuals very familiar with the technique experience this sensation when subjected to the waterboard….

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 (“[T]he waterboard technique … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator … applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is “for real and is more poignant and convincing.”) see also id. at 14 n14. The Inspector General further reported that “OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.” Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, “use of the waterboard requires the presence of a physician.” Id. at 9n2….

Medical personnel are instructed to exercise special care in monitoring and reporting on use of the waterboard. See OMS Guidelines at 20 (“NOTE: In order to inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented: how long each application (and the entire procedure) lasted, how much water was used in the process (realizing that much splashes off), how exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment”)

If drowning a man 183 times is not torture under the definition of federal law, what is?


The Conspirators

“Why are we talking about this in the White House? History will not judge this kindly.” — Bush Attorney General John Ashcroft, undated remark in White House principals meeting

George W. Bush has admitted that the decision to waterboard detainees was made at the highest levels of the Bush administration, and that, in his words, “I approved.” Under 18 USC 2340, this makes a wide variety of principals in the Bush administration party to the federal crime of conspiracy to commit torture, an act punishable by up to 20 years in prison.


The Response

“No one is above the law.” — Attorney General Eric Holder, January 15, 2009

“The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals.” — President Barack Obama, April 16 2009

“Those who devised policy, he believes that they were — should not be prosecuted either, and that’s not the place that we go — as he said in that letter, and I would really recommend people look at the full statement — not the letter, the statement — in that second paragraph, ‘this is not a time for retribution.’ It’s time for reflection.” — White House Chief of Staff Rahm Emanuel, April 19 2009

Apparently, under the administration of President Barack Obama, some people are indeed going to be placed above the law, because after the administration of hundreds of sessions of waterboarding on two people alone (and who knows how many sessions of “the waterboard” applied to how many others), it would be mean-spirited, backward-looking retribution

to apply the law.

6 comments to If Drowning a Man 183 Times is not Torture, What Is?

  • qs

    John Stewart speculated on his show that he thought after 90 times, the person would come to expect not actually being drowned.

    Do you support prosecuting CIA officials who took part from orders coming down the line or do you think just Bush officials should be prosecuted?

  • qs

    Hmmm I’ll have to reread this thread tomorrow. Too late to read it all tonight.

  • ISAY WHAT EVER IT TAKES TO GET INFO FROM A TERRORIST TO GET INFO FROM HIM….THEY WOULDN’T THINK TWICE ABOUT KILLING ALL OF AMERICA FOR NOTHING. DO WHAT EVER IT TAKES. DO NOT PROSECUTE THE MAN THAT HAS KEPT 911 FROM HAPPENING AGAIN SINEC BEING ABLE TO WATERBOARD THE TERRORIST.

    • Jim

      You remind me of the man I met two days ago, and not only because you shout like he did. He complained of the thousands of American deaths in the September 11, 2001 attacks and in subsequent wars. Then he said we could solve the Muslim problem by dropping a nuclear bomb on either side of the Himalayas. Then he spat on the floor and declared Muslims are nothing but animals.

  • Anonymous

    Why the (American) assumption that Eric Lomax is an American?
    Mr Lomax is Scots.
    A man who wrote a book about his torture and imprisonment by the Japanese Imperial Army in Thailand and Singapore as a POW from 1941-1945.
    His book “The Railway Man” documents his experiences and his coming to terms with his nightmares and hate until he met and forgave his torturer some 40 years later. A remarkable (Scots) man

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