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WALLACH 4/3/2007 12:09:53 PM
Essays
Drop by Drop:
Forgetting the History of
Water Torture in U.S. Courts
EVAN WALLACH*
Historical analysis demonstrates that U.S. courts have
consistently held that
artificial drowning interrogation
is torture, which, by its nature, violates
U.S. statutory
prohibitions.
I. INTRODUCTION
.......................................................................469
II. JAPAN’S USE OF WATER TORTURE AGAINST ALLIED POWS
AND THE SUBSEQUENT
TRIALS OF THE JAPANESE ...................477
A. United States v. Sawada:
Water Torture of the
Doolittle Raiders
............................................................478
B. Water
Torture Prosecutions Before Other U.S.
Tribunals
........................................................................482
C. The International Tribunal .............................................490
III. THE
PHILIPPINES.....................................................................494
A. The Water Cure During the U.S. Occupation of the
Philippines
.....................................................................496
B.
The Marcos Regime’s Conduct on Trial........................501
IV. THE TEXAS
WATER TORTURE CASE .......................................502
V. CONCLUSION
..........................................................................504
* Judge, United States Court of International Trade. Adjunct Professor, Law of
War,
Brooklyn Law School, George Mason Law School, New York Law School.
Visiting
Professor, Law of War, University of Muenster. Web master and
author,
www.lawofwar.org. Any views expressed in this article are only those
of the author. The
author wishes to express gratitude for the research
assistance of Daniel Molina of Stanford
University Law School.
This
article is respectfully dedicated in general to the Judge Advocate General
Corps of the United States Army, of which the author was a proud member, and
specifically,
to M.G. Thomas J. Romig, who so clearly exemplifies the vision
which the Corps has of
itself as “committed to justice [and] grounded in
values.” Judge Advocate General Corps
Strategic Plan FY 2004–2010: Judge
Advocate General’s Corps Transformation 3 (2004),
available at
https://www.jagcnet.army.mil/JAGCNETIntranet/JAGCStra.nsf/(JAGCNetDoc
ID)/1C0BA360376A958485257050006754B8/$FILE/JAGCStratPlan04.pdf.
WALLACH
4/3/2007 12:09:53 PM
2007] HISTORY OF WATER TORTURE IN U.S. COURTS 469
Q:
Did the questioners threaten you with any other
treatment while you were
being questioned?
A: Yes, I was given several types of torture. . . . I
was given what they call the water cure. . . .
Q: What was your sensation
when they were pouring
water . . . , what did you physically feel?
A:
Well, I felt more or less like I was drowning, just
gasping between life and
death.
Excerpts from testimony of Cpt. Chase Jay Nielsen, Record of Sawada
Trial, at 55.1
Congress doesn’t have the power to tie the President’s
hands in regard to torture as an interrogation technique.
. . . It’s the core
of the Commander-in-Chief
function. They can’t prevent the President from
ordering
torture.
John Yoo, Professor of Law, University of California at
Berkeley.2
I. INTRODUCTION
Interrogation techniques using water to induce
the sensation
of drowning in the person under questioning (generally called
“water-
boarding” in recent news accounts)3 have been hotly debated in
the
past few years.4
An August 2002 memo, drafted by John Yoo of the Office of
1. United States v. Sawada, 5 L. Rep. Trials of War Criminals 1 (1948). The
corresponding record is kept at the National Archives in Suitland Maryland
[hereinafter
“National Archives”]. On April 18, 1942, then-Lieutenant Colonel
James Doolittle led a
flight of B-25 bombers in a raid on the Japanese
mainland. The Japanese captured ten of the
raiders, including Cpt. Nielsen,
and executed three of them following a trial before a
Japanese Army tribunal.
Following the conclusion of hostilities, the U.S. Army prosecuted
the
Japanese who convened and participated in the trial. See generally CRAIG NELSON,
THE
FIRST HEROES (2002).
2. Jane Mayer, Outsourcing Torture, NEW YORKER,
Feb. 14, 2005, at 106 (citing to
Prof. Yoo’s statement).
3. See, e.g.,
David Johnston & James Risen, Aides Say Memo Backed Coercion
Already in Use,
N.Y. TIMES, June 27, 2004, at A1 (“Mr. Mohammed was “waterboarded”—
strapped
to a board and immersed in water—a technique used to make the subject believe
that he might be drowned, officials said.”); Douglas Jehl & David Johnston,
C.I.A. Expands
Its Inquiry into Interrogation Tactics, N.Y. TIMES, Aug. 29,
2004, at 10 (“Former
intelligence officials say that lawyers from the C.I.A.
and the Justice Department have been
involved in extensive discussions in
recent months to review the legal basis for some
extreme tactics used at
those secret centers, including ‘waterboarding,’ in which a detainee is
strapped down, dunked under water and made to believe that he might be
drowned.”).
4. See, e.g., Mark Danner, Torture and Truth, N.Y. REV. BOOKS,
June 10, 2004, at 46.
WALLACH 4/3/2007 12:09:53 PM
470 COLUMBIA JOURNAL OF
TRANSNATIONAL LAW [45:468
Legal Counsel of the Department of Justice,5 and
signed by then Assistant
Attorney General (now 9th Circuit Judge) Jay Bybee,
discussed
interrogation methods and whether they might violate U.S. or
international law.6 According to Newsweek:
Yoo’s . . . memo was prompted by
CIA questions
about what to do with a top Qaeda captive, Abu
Zubaydah, who
had turned uncooperative. And it was
drafted after White House meetings
convened by
George W. Bush’s chief counsel, Alberto Gonzales,
along with
Defense Department general counsel William
Haynes and David Addington,
Vice-President
Cheney’s counsel, who discussed specific interrogation
techniques, says a source familiar with the discussions.
Among the methods
they found acceptable:
“water-boarding,” or dripping water into a suspect’s
face, which can feel like drowning . . .7
The authors of the Yoo Memo
concluded that:
[T]orture as defined in and proscribed by Sections
2340-2340A covers only extreme acts. Severe pain is
generally of the kind
difficult for the victim to endure.
Where the pain is physical, it must be of
an intensity
akin to that which accompanies serious physical injury
such
as death or organ failure. Severe mental pain requires
suffering not just at
the moment of infliction
but it also requires lasting psychological harm,
such as
seen in mental disorders like posttraumatic stress disorder.
. . .
Because the acts inflicting torture are extreme,
there is a significant range
of acts that though
they might constitute cruel, inhuman, or degrading
treatment or punishment fail to rise to the level of torture.
8
None of
the Memo’s analysis explains why water-boarding does not
cause physical or
psychological pain sufficient to meet the criminalization
standards it
enunciates.
5. John Yoo, Commentary, Behind the ‘Torture Memos,’ U.C.
BERKELEY NEWS, Jan.
4, 2005,
http://www.berkeley.edu/news/media/releases/2005/01/05_johnyoo.shtml.
6.
Memorandum from Jay S. Bybee to Alberto R. Gonzales, Counsel to the President,
on Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340–40A (Aug. 1,
2002),
available at
http://www.texscience.org/reform/torture/bybee-olc-torture-1aug02.pdf.
7.
Michael Hirsh et al., A Tortured Debate, NEWSWEEK, June 21, 2004, at 52
(emphasis added).
8. See YOO, supra note 5, at 46.
WALLACH 4/3/2007
12:09:53 PM
2007] HISTORY OF WATER TORTURE IN U.S. COURTS 471
On October
16, 2006, President Bush signed into law the
Military Commissions Act of
2006.9 That Act principally defines
persons over whom military commissions
have jurisdiction, and
modifies procedures and rules before those
commissions. It also,
however, modifies10 the War Crimes Act of 1995.11
Section 3 of that
Act, which criminalizes breaches of the Geneva Conventions
of
1949, provides that a “war crime” includes conduct which constitutes
a
violation of Common Article 3 of the Geneva Conventions12 (covering
conflicts
not of an international nature in the territory of a signatory
power). The
Military Commissions Act modifies Section 3,
adding a new subsection (d) to
limit violations to include, inter alia,
torture and cruel or inhuman
treatment, only if they inflict “severe
physical or mental pain or suffering
[if not incidental to lawful sanctions].”
13
The apparent intention of the
modification of Section 3 was to
affect its application to military
commissions by the United States
Supreme Court in Hamdan v. Rumsfeld.14 In
addition to stripping defendants
before military commissions of any right to
assert the Geneva
Conventions,15 the Act specifically provided that “[n]o
foreign
or international source of law shall supply a basis for a rule of
decision
in the Courts of the United States in interpreting the prohibitions
enumerated in subsection (d) of [the War Crimes Act].”16
The drafters of the
Act, however, were apparently unaware of
or ignored past U.S. legal history.
Indeed, despite increasing discussion
of variations of the technique and
their application on a global
9. Military Commissions Act of 2006, Pub. L.
No. 109-366, 120 Stat. 2600 (2006),
available at http://thomas.loc.gov/
[hereinafter Military Commissions Act].
10. Id. § 6(b).
11. War Crimes Act
of 1996, 18 U.S.C. § 2441 (2000).
12. Military Commissions Act, supra note 9,
§ 3. See Convention for the Amelioration
of the Condition of the Wounded and
Sick in Armed Forces in the Field art. 3, Aug. 12,
1949, 6 U.S.T. 3114, 75
U.N.T.S. 31; Convention for the Amelioration of the Condition of
Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6
U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners
of War art.
3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention
Relative to the Protection of
Civilian Persons in Time of War art. 3, Aug.
12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
13. The Military Commissions Act
incorporates by reference the definitions of 18
U.S.C. § 2340(2) which
provides, inter alia:
severe mental pain or suffering” means the prolonged
mental harm caused by
or resulting from—
(A) the intentional infliction or
threatened infliction of severe physical pain or
suffering; . . .
(C) the
threat of imminent death; . . .
Military Commissions Act, supra note 9, §
6(d)(2)(D)(A).
14. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795–96 (2006).
15. See, e.g., Military Commissions Act, supra note 9, § 3(a)(1); 10 U.S.C.§
948b(g).
16. Military Commissions Act, supra note 9, § 6(a)(2).
WALLACH
4/3/2007 12:09:53 PM
472 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
scale,17 nobody seems to remember that, not so very long ago, the
United
States, acting alone before domestic courts, commissions, and
courts-martial,
and as a participant in the world community, not only
condemned the use of
water torture, but severely punished as criminals
those who applied it.18
American judges or commissioners heard American prosecutors
roundly condemn
the practice as applied to American servicemen,
in trials both before U.S.
military commissions and as participants
in the International Military
Tribunal for the Far East
(IMTFE),19 and voted to convict the perpetrators.
The United States
was not alone in prosecuting water torture before national
tribunals,
nor were the Japanese its sole practitioner. It is worth comparing
those trials with Norway’s prosecution of German defendants for the
same form
of misconduct,20 and the United Kingdom’s trial and execution
of Japanese
interrogators who used the method.21 There were
17. In a 2006 written
parliamentary exchange, the U.K. Foreign Office was asked
whether “the
infliction of simulated drowning falls within the definition of torture or cruel
and inhumane treatment used by the government for the purposes of international
law.” The
government’s reply from Ian Pearson, a junior Foreign Office
minister was that “[w]hether
the conduct constitutes torture or cruel,
inhumane or degrading treatment or punishment for
the purposes of the UN
Convention Against Torture would depend on all the circumstances
of the
case.” James Kirkup, Taking Prisoners to the Edge of Drowning ‘Not Torture’ Says
FO, SCOTSMAN, Mar. 11, 2006, available at http://news.scotsman.com/politics.cfm?
id=367282006.
18. Within the legal and academic community there has been a
good deal of discussion
of water torture in various forms under the general
rubric of “water boarding.” See generally
THE TORTURE DEBATE IN AMERICA
(Karen Greenberg ed., 2005). There has been no
mention, however, of past
American government pursuit and prosecution of individuals who
inflicted such
treatment on U.S. military personnel (the trials of Japanese war criminals after
World War II) or of American service members who indulged in the technique (the
Philippine insurgency hearings). See, e.g., Charles Brower, The Lives of
Animals, the Lives
of Prisoners, and the Revelations of Abu Ghraib, 37 VAND.
J. TRANSNAT’L L. 1353 (2005);
Joshua A. Decker, Is the United States Bound by
the Customary International Law of
Torture? A Proposal for ATS Litigation in
the War on Terror, 6 CHI. J. INT’L L. 803 (2006);
Harold H. Koh, A World
Without Torture, 43 COLUM. J. TRANSNAT’L L. 641 (2005); Seth F.
Kreimer,
“Torture Lite,” “Full Bodied” Torture, and the Insulation of Legal Conscience, 1
J. NAT’L SEC. L. & POL’Y 187 (2005); Jordan J. Paust, Executive Plans and
Authorizations to
Violate International Law Concerning Treatment and
Interrogation of Detainees, 43
COLUM. J. TRANSNAT’L L. 811 (2005); Kim L.
Scheppele, Hypothetical Torture in the “War
on Terrorism,” 1 J. NAT’L SEC. L.
& POL’Y 285 (2005).
19. Commonly known as the Tokyo War Crimes Tribunal, it
applied the same general
rules and procedures as the better-known Nuremburg
Tribunal. See generally Evan J.
Wallach, The Procedural and Evidentiary Rules
of the Post-World War II War Crimes
Trials: Did They Provide an Outline for
International Legal Procedure?, 37 COLUM. J.
TRANSNAT’L L. 851 (1999).
20.
See, e.g., Trial of Karl-Hans Klinge, Eidsivating Lagmansrett and Supreme Court
of Norway (Dec. 8, 1945 and Feb. 27, 1946), reported in 3 L. REP. TRIALS OF WAR
CRIMINALS 1 (1947) (holding that throwing a victim, naked and with bound hands
and feet,
into a bath tub filled with ice-cold water, where he was repeatedly
ducked under, constituted
torture).
21. TRIAL OF SUMIDA HARUZO AND TWENTY
OTHERS, THE DOUBLE TENTH TRIAL (Colin
WALLACH 4/3/2007 12:09:53 PM
2007]
HISTORY OF WATER TORTURE IN U.S. COURTS 473
also reports of use of the
technique against American service personnel
in other conflicts,22 and by
American personnel against Vietnam-
Sleeman & S.C. Silkin ed., 1950). In the
trial, conducted in Singapore in 1946, the
prosecution alleged numerous
misdeeds and certainly included water torture. As described
by a trial
witness:
Witness: [One interrogator] ordered a ladder to be brought, and they
tied my
chest and legs to it, my hands already having been tied before. I
was then pressed under three running taps in a bathroom. [Another
interrogator] pressed a gunny bag on my face and they tried to force
water
into me. They did not succeed because I struggled and they
left me under one
tap which was running directly on my nose and
face, a second flowing towards
my body, and the third towards my
legs.
Prosecutor: How long were you left
lying there?
Witness: Approximately two hours.
Prosecutor: Did you drink
any water?
Witness: Some, but not very much.
Prosecutor: What happened
after the two hours?
Witness: The same people came back, including another
[military
policeman], who ordered two [assistants] to lay me aside. After
half
an hour [the second interrogator] came back and spoke to me in
Chinese. He said I was still healthy, and that I was a young British
agent
and would be treated the way all British agents deserved.
Prosecutor: What
happened after he made that remark?
Witness: He lifted one side of the ladder
and another [assistant] lifted the
other and I was dipped into a pool of
water.
Prosecutor: Was this pool in the garage?
Witness: It was a big
bathroom inside. The pool is very large and
approximately three feet deep.
Prosecutor: What happened after they carried you to this pool?
Witness: I saw
[the first interrogator] adjusting his watch, and then they
placed me into
the pool with my head downwards.
Prosecutor: Did your face go under water?
Witness: Yes.
Prosecutor: How long did you stay there?
Witness: I cannot
tell you.
Prosecutor: Could you hold your breath for the length of time?
Witness: I just managed.
Prosecutor: Did they then bring your head out of the
water?
Witness: Yes, but it was too late to take any breath because they
dipped me
again.
Prosecutor: Did this continue?
Witness: Yes.
Prosecutor: For how long?
Witness: I cannot say because I felt like a
drowning man. I drank a lot of
water.
Testimony of Khoo Hock Choo, id. at
86–87.
22. For example, USAF Lt. Col. William Harrison described being
“tortured with the
‘water treatment’ by Communist North Koreans”:
They
used the water treatment. They would bend my head back, put a towel
over my
face and pour water over the towel.
I could not breathe. This went on hour
after hour, day after day. It was
freezing cold. When I would pass out, they
would shake me and begin again.
They would leave me tied to the chair with
the water freezing on and around
me.
Air Officer Tells of Torture by Foe,
N.Y. TIMES, Aug. 6, 1953, at 3.
WALLACH 4/3/2007 12:09:53 PM
474 COLUMBIA
JOURNAL OF TRANSNATIONAL LAW [45:468
ese prisoners during the Vietnam
conflict.23
“Water cure,”24 “water torture,”25 “water boarding.”26 Under
whatever name, extreme interrogators have long prized the technique,
which,
unlike other interrogation methods, imposes severe mental
trauma and physical
pain but no traces of physical trauma that would
be discoverable without an
autopsy.27
Concerning the mental trauma, Dr. Allen Keller, the director
of
the Bellevue/N.Y.U. Program for Survivors of Torture, says he has
treated
individuals who have been subjected to forms of nearasphyxiation
similar to
water-boarding. He affirms that it is torture,
giving rise to traumatic
symptoms years later.28
At least one in-depth study indicates that
suffocation by immersion
may cause severe psychological effects.29 Among the
cases
studies presented was that of:
[a] 31-year-old man . . . with panic
disorder. Typically,
his panic attacks were characterized by predominantly
respiratory symptoms, and there were also
23. Army investigations showed
water torture techniques were used by American
troops:
[A witness]
identified former Staff Sgt. David Carmon as one of the
interrogators who had
tortured detainees.
[Lieutenant Colonel Anthony] Herbert also accused Carmon
of subjecting a
detainee to water torture. Herbert said he found Carmon
involved in the torture
of a Vietnamese man, pouring water onto a rag placed
over the captive’s nose
and mouth.
This technique, called the “water rag,”
causes a drowning sensation . . . .
When investigators questioned Carmon in
December, 1970, he admitted using
the water rag on a detainee, records show.
“I held the suspect down, placed a cloth over his face and then poured water
over the cloth, thus forcing water into his mouth. The suspect after becoming
choked on the water, confessed that he was a VC and stated that he was a
propaganda man,” Carmon said, according to his sworn statement.
Deborah
Nelson & Nick Turse, A Tortured Past, L.A. TIMES, Aug. 20, 2006, at A1.
24.
See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F.
Supp. 1460, 1463 (D. Haw. 1995). See also infra note 117.
25. International
Military Tribunal for the Far East (IMTFE) Record, at 14,168,
available at
National Archives and Diamond Library, Columbia Law School, Treasure,
reproduced in facsimile in THE TOKYO WAR CRIMES TRIAL (R. John Pritchard & Sonia
Magbanna Zaide eds., Garland Publishing Inc., 1981).
26. Mark Danner, Op-Ed.,
We Are All Torturers Now, N.Y. TIMES, Jan. 6, 2005, at
A27 (using term “water
boarding” to describe American treatment of al Qaeda prisoners).
27. James
Risen et al., Harsh C.I.A. Methods Cited in Top Qaeda Interrogations, N.Y.
TIMES, May 13, 2004, at A1; Johnston & Risen, supra note 3; Jehl & Johnston,
supra note 3;
Josh White, Documents Tell of Brutal Improvisation by GIs;
Interrogated General’s
Sleeping-Bag Death, CIA’s Use of a Secret Iraqi Squad
Are Among Details, WASH. POST,
Aug. 3, 2005, at A1.
28. Mayer, supra note
2, at 106.
29. Colin Bouwer & Dan Stein, Association of Panic Disorder with a
History of
Traumatic Suffocation, 154 AMER. J. PSYCHIATRY 1566 (1997).
WALLACH 4/3/2007 12:09:53 PM
2007] HISTORY OF WATER TORTURE IN U.S. COURTS
475
frequent nocturnal panic attacks. On questioning
about traumatic
suffocation experiences, the patient
recalled having been tortured as a
political prisoner at
age 18. A wet bag had been placed over his head
repeatedly,
leading to choking feelings, hyperventilation,
and panic. At
about age 20 the patient began to
experience spontaneous panic attacks. The
characteristic
reexperiencing, avoidant, and numbing symptoms
of PTSD were
less prominent. [The authors’] . . . main
findings were that 1) there was a
significantly higher
incidence of traumatic suffocation experiences, both
accidental (near-drowning) and deliberate (torture by
suffocation), in the
patients with panic disorder than in
the psychiatric comparison subjects, and
2) within the
group of panic disorder patients, those with a history
of
traumatic suffocation were significantly more likely
to exhibit predominantly
respiratory symptoms and
nocturnal panic attacks.30
Even among experienced
scuba divers, more than half report having
panic attacks while scuba
diving.31 It is also clear that respiratory
challenges of all sorts
exacerbate symptoms in individuals already
prone to panic attacks.32
The
physical effects of immersion are generally described in
studies of drowning
victims:
The natural progression of events is fairly typical.
The victim,
if conscious, may begin struggling on the
surface. Owing to exhaustion, panic
or inability to . . .
swim, this is followed by intermittent submersion,
usually associated with initial breath holding. Large
amounts of fluid are
swallowed, usually associated
with vomiting.
The victim then aspirates
small amounts of fluid,
which causes laryngospasm, and this in turn may
result
in complete airway obstruction lasting up to 2
min. During this
period of increasing hypoxia [oxygen
deprivation] and panic, the victim may
continue to
swallow fluid into the stomach. Approximately 10–
30. Id. at
1568 (emphasis added).
31. Divers Beware: Training Dives Present Serious
Hazards to Fire Fighters, Nat’l
Inst. for Occupational Safety and Health,
NIOSH Publication No. 2004-152 (2004).
32. Laszlo A. Papp et al., Respiratory
Psychophysiology of Panic Disorder: Three
Respiratory Challenges in 98
Subjects, 154 AMER. J. PSYCHIATRY 1557 (1997).
WALLACH 4/3/2007 12:09:53 PM
476 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
15% of victims proceed to
aspirating another aliquot
of fluid, which then causes severe laryngospasm,
followed
by increasing hypoxia, possible convulsions,
bradycardia, and
cessation of cardiac activity. In the
remainder . . . laryngospasm relaxes
secondary to hypoxia
and unconsciousness, when large amounts of
fluid are
aspirated.33
Despite the mental and physical trauma, water torture has
been variously described as “torture lite”34 or a “very mild form of
torture.”35 John Yoo, now a U.C. Berkeley law professor,36 testified
in 2005
before the United States Senate that he did not know whether
water-boarding
constituted torture.37 It is difficult to believe that
those who describe it
that way have ever experienced it.
Captain Nielsen, the U.S. aviator captured
by the Japanese in
China following the Doolittle Raid on Tokyo,38 detailed
the essence
of the technique:
Well, I was put on my back on the floor with
my arms
and legs stretched out, one guard holding each limb.
The towel was
wrapped around my face and put
across my face and water poured on. They
poured
water on this towel until I was almost unconscious
from
strangulation, then they would let up until I’d get
my breath, then they’d
start over again.39
Descriptions of water boarding as it is apparently
currently applied40
differ very little from the techniques applied by the
Japanese. One
investigator describes water-boarding as a technique “in which
a
33. Kenneth D. Boffard et al., The Management of Near Drowning, 2 TAUMA
269, 269
(2000).
34. Evan Thomas & Michael Hirsh, The Debate over Torture,
NEWSWEEK, Nov. 21,
2005, at 26.
35. STUART MILLER, BENEVOLENT
ASSIMILATION: THE AMERICAN CONQUEST OF THE
PHILIPPINES, 1899–1903, at 213
(1982).
36. See http://www.law.berkeley.edu/faculty/yooj/.
37. Sonni
Efron, Torture Becomes a Matter of Definition, L.A. TIMES, Jan. 23, 2005, at
A1. “‘It depends on the circumstances,’ he said, including the details of what
was done, the
condition of the detainee and what other interrogation methods
had been used, Yoo said.”
Id. See also supra note 5.
38. On April 18,
1942, then Lt. Col. James Doolittle led a flight of B-25 bombers in a
raid on
the Japanese mainland. See generally CRAIG NELSON, THE FIRST HEROES (2002).
The Japanese captured ten of the raiders and executed three of them following a
trial before
a Japanese Army tribunal. Following the conclusion of
hostilities, the U.S. Army prosecuted
the Japanese who convened and
participated in the trial. See United States v. Sawada, 5 L.
REP. TRIALS OF
WAR CRIMINALS 1 (1948).
39. Testimony of CPT Chase Jay Nielsen, supra note 1,
at 55.
40. See Danner, supra note 4.
WALLACH 4/3/2007 12:09:53 PM
2007]
HISTORY OF WATER TORTURE IN U.S. COURTS 477
prisoner is stripped, shackled
and submerged in water until he begins
to lose consciousness.”41 Another
current source says that in waterboarding
“a prisoner is strapped down,
forcibly pushed under water
and made to believe he might drown.”42 The
similarity is startling,
given the opprobrium occasioned by its application
to American military
personnel. Furthermore, it is striking because, as
discussed at
length below, it bears a stark resemblance to conduct by
American
troops in the Philippine insurgency following the Spanish-American
War, just over a hundred years ago.
Water torture has also been described in
the U.S. judicial
system in another context. Its use has been punished where
it was
applied by government authorities as a means of domestic
questioning. In United States v. Parker,43 a jury convicted a county
sheriff
and several of his deputies for interrogating prisoners using
one of the
methods described above.
In all cases, whether the water treatment was
applied by
Americans or to Americans, or simply reviewed by American courts,
it has uniformly been rejected as illegal, often with severely punitive
results for the perpetrators.
II. JAPAN’S USE OF WATER TORTURE AGAINST ALLIED
POWS
AND THE SUBSEQUENT TRIALS OF THE JAPANESE
The clearest exposition of
the U.S. position on the use of water
treatment as torture is found in cases
in which the Japanese armed
forces applied it to Allied prisoners of war
during World War Two.44
Japan’s use of the technique was extremely common,45
and was part
of the widespread use of torture as a tool of interrogation.46
An ex-
41. Danner, supra note 26.
42. Risen et al., supra note 27.
43.
CR-H-83-66 (S.D. Tex. 1983), aff’d sub nom. United States v. Lee, 744 F.2d 1124
(5th Cir. 1984).
44. There are numerous instances, both anecdotal and in
trial records, of use by the
Japanese of water-based interrogation techniques
on civilians. For example, an American
missionary held by the Japanese in
Korea reported that he “had received the water cure when
other less elaborate
methods of punishment failed to make him agree he had been engaged in
espionage.” According to the reporter, the water cure was “a method of forcing
quantities of
water down the throat of the victim until he is unconscious and
in a semi-drowning
condition.” Relman Morin, American Defied Torture in
Korea, N.Y. TIMES, July 26, 1942,
at 10.
45. See discussion of IMTFE Final
Judgment infra at Part II(C).
46. A 1943 Japanese manual entitled “Notes for
the Interrogation of Prisoners of War”
included the following:
Care must
be taken when making use of rebukes, invective or torture as it will
result
in his telling falsehoods and make a fool of you. The following are the
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tensive discussion of the effectiveness of water questioning, and one
with which some Americans might be expected to be familiar because
of the
fame of the victims, was found in the trial of Japanese
officers responsible
for the torture, trial, and in some cases execution,
of crew members of the
April, 1942 Doolittle raid on Tokyo.
A. United States v. Sawada: Water
Torture of the Doolittle
Raiders
Following the end of World War Two the
United States participated
in two forms of military tribunals. Most widely
known is
the International Military Tribunal for the Far East, which was
convened
by General MacArthur as Supreme Commander of the Allied
Powers47
with representative judges from each of the nations engaged
in the war
against Japan.48 The IMTFE followed many rules
and procedures similar to
those used at the Nuremburg tribunal.49
The United States,50 however, as did
other Allied powers,
methods normally to be adopted: (1) Torture which
includes kicking, beating
and anything connected with physical suffering.
This method is to be used
only when everything else fails as it is the most
clumsy one. Change the
interrogating officer when using violent torture, and
good results can be had if
the new officer questions in a sympathetic manner.
IMTFE Judgment, Torture Section, Record, supra note 25, at 49,664.
The
Japanese Notes make an interesting comparison with the “KUBARK Manual,”
a
1963 CIA interrogation manual obtained by the Baltimore Sun under a FOIA request
in
1997. See CIA, KUBARK Counterintelligence Interrogation, July 1963,
available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/#kubark (“[T]he
threat to inflict
pain . . . can trigger fears more damaging than the
immediate sensation of pain . . . . In
general, direct physical brutality
creates only resentment, hostility and further defiance.”).
47. The IMTFE
Charter provides “[b]y command of General MacArthur” that, inter
alia, “[t]he
International Military Tribunal for the Far East is hereby established for the
just
and prompt trial and punishment of the major war criminals in the Far
East. The permanent
seat of the Tribunal is in Tokyo.” Charter of the
International Military Tribunal for the Far
East art. 1, in SENATE COMMITTEE
ON FOREIGN RELATIONS, A DECADE OF AMERICAN
FOREIGN POLICY: BASIC DOCUMENTS,
1941–1949 (1950), also available at
http://www.yale.edu/lawweb/avalon/imtfech.htm. The Charter further provides that
“[t]he
Tribunal shall consist of not less than six members nor more than
eleven members,
appointed by the Supreme Commander for the Allied Powers from
the names submitted by
the Signatories to the Instrument of Surrender, India,
and the Commonwealth of the
Philippines.” Id. art. 2.
48. For a
description of the working of the IMTFE, see B.V.A. Röling, Introduction to
THE TOKYO JUDGMENT: THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST
(I.M.F.T.E.) 29 APRIL 1946–12 NOVEMBER 1948, at XI (B.V.A. Röling & C.F. Rüter
eds.,
1977).
49. See id. at xii; Wallach, supra note 19, at 863–68.
50.
The best-known example is United States v. Yamashita, United States Military
Commission, Manila, Oct. 8–Dec. 7, 1945, 4 L. REP. TRIALS OF WAR CRIMINALS 1
(1948),
appeal denied sub nom. Yamashita v. Styer, 327 U.S. 1 (1946).
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479
principally including the United Kingdom,51 Australia,52 China,53 the
Soviet Union,54 the Philippines,55 and the Netherlands,56 also tried
lesser
war criminals57 before sole state military commissions or tribunals.
Among
those tribunals was the Sawada case, of interest here
because some of the
Doolittle raiders were questioned using water
torture, and the result of that
torture (although not its actual application)
was included in the charges and
specifications against the defendants.
58
Sawada and his co-defendants
were not specifically charged
with torture in the trial charges and
specifications. Rather, Sawada
was charged with causing “Prisoners of War to
be denied the status
of Prisoners of War and to be tried and sentenced by a
Japanese Mili-
51. See, e.g., Trial of Yamamoto Chusaburo, British Military
Court, Kuala Lumpur,
Jan. 30–Feb. 1, 1946, 3 L. REP. TRIALS OF WAR CRIMINALS
76 (1947).
52. See, e.g., Trial of Sergeant-Major Shiger Ohashi and Six
Others, Australian
Military Court, Rabaul, Mar. 20–23, 1946, 5 L. REP. TRIALS
OF WAR CRIMINALS 25 (1948).
53. The Nationalist Chinese prosecuted Japanese
Class B and C war criminals in
Nanking between 1946 and 1947. Xiaoyu Pu, The
Nanking Massacre, Justice and
Reconcilliation: A Chinese Perspective, 6
PERSPECTIVES 26 (2005), available at
http://www.oycf.org/Perspectives/30_09302005/2c_Pu_NankingMassacre.pdf.
54.
The U.S.S.R. conducted a series of trials at Khabarovsk from December 25, 1949,
through the 30th, the subject of which was principally allegations of biological
and chemical
warfare. Jing-Bao Nie, The United States Cover-Up of Japanese
Wartime Medical
Atrocities: Complicity Committed in the National Interest and
Two Proposals for
Contemporary Action, 6 AM. J. BIOETHICS 3, 3 (2006).
55.
Two hundred and fifteen Japanese defendants faced military commissions in the
Philippines. See Robert Barr Smith, Japanese War Crimes Trials, available at
http://www.historynet.com/wars_conflicts/world_war_2/3035796.html (last visited
Jan. 18,
2007).
56. See, e.g., Trial of Washio Awochi, Netherlands
Temporary Court Martial at
Batavia, Oct. 25 1946, 13 L. REP. TRIALS OF WAR
CRIMINALS 122 (1949).
57. The term refers not to the gravity of crimes
committed but to their type, and the
decision not to include that individual
as a representative “Class A” defendant before the
IMTFE. In August 1945, the
Coordinating Committee of the U.S. Departments of State,
War, and Navy
[hereinafter SWNCC] published its classification of war criminals: A, B,
and
C. In brief, Class A consisted of those accused of “crimes against peace”—first
of all,
planning, preparing, initiating, or waging a declared or undeclared
war of aggression, or a
war in violation of international law and treaties;
or, participating in a conspiracy for the
accomplishment for any of the
foregoing. Class B consisted of those people charged with
conventional war
crimes—namely violations of the laws and customs of war, including the
maltreatment of civilians and prisoners of war. Finally, Class C comprised all
those accused
of crimes against humanity—those who had carried out torture,
murder, extermination,
enslavement, deportation, and other inhumane acts
before or during the war, or persecution
on political, religious, or racial
grounds ordered by superiors. As Takemae Eiji notes, “In
Germany, four Allied
powers had tried Nazi leaders for the Holocaust and related horrors
under
Class-C crimes against humanity, but in Japan this category became blurred with
Class B offenses, and most of the so-called B/C war crimes covering conventional
brutalities
and murder were tried in local military tribunals throughout
Asia.” Bill Barette, Art and
Exchange at Sugumo Prison, 1945–52: Visual
Communication in American-Occupied
Japan (Japan Policy Research Institute,
JPRI Occasional Paper No. 33, 2004).
58. See infra notes 59 and 60.
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480 COLUMBIA JOURNAL OF TRANSNATIONAL LAW
[45:468
tary Tribunal in violation of the Laws and Customs of War.”59 The
specifications alleged that he had directed the prisoners’ trial “on
false
and fraudulent charges,” that he failed to commute or remit the
sentences
causing unlawful deaths and other criminal sentences, and
that he unlawfully
caused the prisoners to be treated as war criminals.
60
Captain Nielsen’s
testimony was part of the prosecution’s
proof that the Doolittle raiders were
not guilty of war crimes, and
that, in fact, their confessions were obtained
by torture.61 Sawada
was present during that testimony and was asked about it
on crossexamination:
Q: Did you listen to Captain Nielsen testify on the
witness stand in this case?
A: I heard it.
Q: Did you hear him tell how he
was treated . . . ?
A: I heard.
Q: Well who was responsible for his
treatment at the
Airfield that night?
A: The Gendarmerie took them over
already . . . .
Q: The fact of the matter is, General, you didn’t care
how
they were treated did you?
A: I thought they were treated fairly.
Q: You
heard Captain Nielsen testify about being
given the water treatment out
there, didn’t you?
59. Charge, Record of Trial, United States v. Sawada, 5 L.
REP. TRIALS OF WAR
CRIMINALS 1 (1948), Judge Advocate General’s Office File
No. 119-19-5 (1946), at 1,
available at National Archives.
60.
Specifications, Record of Trial, supra note 59, at 2–3.
61. The U.S.
Government’s official position about Japanese interrogation techniques
applied to the Doolittle raiders was clearly stated in a diplomatic note
delivered to the
Japanese government through Switzerland in 1943:
With
regard to the allegation of the Japanese Government that the American
aviators admitted [intentionally bombing and strafing non-military targets]
there are numerous known instances in which Japanese agencies have
employed
brutal and bestial methods in extorting alleged confessions from
persons in
their power. It is customary for those agencies to use statements
obtained
under torture, or alleged statements, in proceedings against the
victims.
Telegram from Sec. of State Cordell Hull to Japanese Government via Bern
Legation, Apr.
5, 1943, Investigative File, United States v. Sawada, 5 L.
REP. TRIALS OF WAR CRIMINALS 1
(1948), Judge Advocate General’s Office File
No. 35-6, at 53 (1945), available at National
Archives.
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12:09:53 PM
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A: I heard
him say he received it from the Gendarmes.
62
In his closing argument the
Prosecutor explained the government’s
position on the application of the
facts about prisoner mistreatment to
General Sawada:
[O]ur contention is
that we cannot see how Sawada
can escape responsibility when these men were
his
prisoners and he turned them over and allowed these
Gendarmerie
members to treat them as they did, when
he should have seen to it that they
had proper treatment.
63
He continued his argument against Sawada
discussing the General’s
claim that he was not familiarized by the Japanese
government with
the specifics of the 1929 Geneva Convention:
They cannot
say that something their government
failed to do authorized them to fail to
treat these men
as human beings. When their government agreed to
[abide by
the 1929 Convention] they should have
taken these men and treated them as
prisoners of war
and not as war criminals.64
The Commission rejected the
Prosecutor’s argument about
the General’s criminal liability for the water
torture (and other mistreatment)
inflicted by the Japanese military police.
Although it
found that Sawada “was negligent in not personally investigating
the
treatment being given the American prisoners, he was informed by
his
responsible staff that they were being given the treatment accorded
Japanese
officer prisoners.”65
What the Commission did not question, however, was the
Prosecution’s contention that Captain Nielsen was tortured with the
water
cure, and that the torture resulted in a wrongful conviction. It
rejected the
portion of the First Specification alleging Sawada
“knowingly and willfully”
constituted a military tribunal to try
Americans who were entitled to POW
status, although it found the
62. Record of Trial, United States v. Sawada, 5
L. REP. TRIALS OF WAR CRIMINALS 1
(1948), Judge Advocate General’s Office
File No. 119-19-5 (1946), at 439–40, available at
National Archives.
63.
Id. at 490.
64. Id. at 491.
65. Commission’s Conclusions, Record of Trial,
United States v. Sawada, 5 L. REP.
TRIALS OF WAR CRIMINALS 1 (1948), Judge
Advocate General’s Office File No. 119-19-5
(1946), at 549, available at
National Archives.
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482 COLUMBIA JOURNAL OF
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General guilty on the remainder of that
Specification. On the Second
Specification, however, that Sawada had the
American prisoners tried
“on false and fraudulent charges,” the Commission
found him guilty
with no exception. It accepted that they were false and
fraudulent,
based on evidence which in very large part showed the prisoners’
confession had been obtained through torture. A key aspect was the
water
torture applied to Captain Nielsen.
That the water cure was torture was also
a legal conclusion
accepted in other U.S. military commissions in the Pacific
Theater.
B. Water Torture Prosecutions Before Other U.S. Tribunals
The
United States tried a significant number of Class B and C
war criminals
before national tribunals. Among them were several
conducted at Yokohama,
Japan and one in the Philippines. All of
these trials elicited compelling
descriptions of water torture from its
victims, and resulted in severe
punishment for its perpetrators.
One compelling example is found in the
Manila trial of Sergeant-
Major Chinsaku Yuki of the Kempentai66 for torture
and murder67
of Philippine civilians. There, the Commission heard testimony
from Ramon Navarro, a Filipino lawyer who had been arrested by the
Kempentai
and questioned by the Defendant on suspicion that he
knew of and supported
guerilla activities. His testimony was the only
direct evidence received by
the tribunal about Sgt. Maj. Yuki’s interrogation
techniques:
Q: And then
did he take you back to your room?
A: When Yuki could not get anything out of
me he
wanted the interpreter to place me down below
66. Yuki was tried
before a military commission convened by the Commanding
General
Philippines-Ryukyus Command. Record of Trial, United States v. Yuki, Philippines
Trials, March 21, 1947, SCAP Prosecution Section File 142, available at National
Archives,
NND 775011, Record Group 331: Allied Operational and Occupation
Headquarters, World
War II, Entry 1321: SCAP; Legal Section; Prosecution
Division, United States v. Japanese
War Criminals Case File, 1945-49, Box
1586, File Chinsaku Yuki-Vol. I.
67. The Charge was a standard one:
That
Chinsaku YUKI, ISN 51J-119862, a Sergeant-Major in the Imperial
Japanese
Army, on the dates and at the places hereinafter specified, and while a
state
of war existed between the United States of America, its allies and
dependencies, and Japan, did violate the laws and customs of war.
Record of
Trial, United States v. Yuki, supra note 66, Vol. I (Charge and Specifications
Against Chinsaku Yuki), at 7. The specifications included torture and murder of
unarmed
non-combatants. Id. Interestingly, the Commission declined to convict
Yuki regarding his
treatment of guerillas, apparently taking the position
that the charge and specifications were
limited to noncombatants. Id., Vol.
VI (Judgment), at 249–50.
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2007] HISTORY OF
WATER TORTURE IN U.S. COURTS 483
and I was told by Yuki to take off all my
clothes
so what I did was to take off my clothes as ordered.
I was ordered
to lay on a bench and Yuki
tied my feet, hands and neck to that bench lying
with my face upward. After I was tied to the bench
Yuki placed some cloth on
my face and then with
water from the faucet they poured on me until I
became unconscious. He repeated that four or five
times.
Col. Keeley: You
mean he brought water and poured
water down your throat?
A: No sir, on my
face, until I became unconscious.
We were lying that way with some cloth on
my
face and then Yuki poured water on my face continuously.
Col. Keeley:
And you couldn’t breathe?
A: No, I could not and so I for a time lost
consciousness.
I found my consciousness came back again
and found Yuki was
sitting on my stomach and
then I vomited the water from my stomach and the
consciousness came back again for me.
Q: Where did the water come out when he
sat on your
stomach?
A: From my mouth and all openings of my face . . .
and then Yuki would repeat the same treatment
and the same procedure to me
until I became unconscious
again.
Q: How many times did that happen?
A:
Around four or five times from two o’clock up to
four o’clock in the
afternoon. When I was not
able to endure his punishment which I received I
told a lie to Yuki . . . . I could not really show
anything to Yuki because I
was really lying just to
stop the torture.68
When Yuki learned that
Navarro was lying, he was brought back to
the Kempentai facility and again
subjected to the water cure:
68. Id., Vol. III (Public Trial), at 85–86.
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484 COLUMBIA JOURNAL OF TRANSNATIONAL LAW
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Col. Keeley: 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.
Q: How many times did he do that?
A:
Two or three times.69
In his summation, the Prosecutor discussed Navarro’s
testimony noting
that “it’s on his testimony that we have to determine
whether
there was any torture or not.” Apparently, that testimony was
sufficient
for the Commissioners. They convicted Yuki of the charges
that
he tortured and murdered a civilian non-combatant, and sentenced
him to life
imprisonment.70
Another compelling description of water torture is found in a
case heard before a U.S. Military Commission at Yokohama, Japan.
There, four
Japanese defendants were tried for torture and mistreatment
of American and
Allied prisoners at Fukoka Prisoner of War
Branch Camp Number 3 in Kyushu.71
Water torture was among the
acts alleged in the specifications against the
various defendants, and
it loomed large in the evidence presented against
them.72
The four defendants, Hata,73 Asano,74 Kita75, and Naka-
69. Id.,
at 87–88.
70. Id. at 241.
71. United States v. Hideji Nakamura, U.S.
Military Commission, Yokohama, 1947,
available at National Archives, NND
735027, Record Group 153: Office of the Judge
Advocate General (Army), Entry
143: War Crimes Branch; Case Files, 1944-49, Box 1025,
File No. 36-219-Vol.
I.
72. Id.
73. The charge and specifications against Hata were:
Charge:
That the following member of the Imperial Japanese Army with his
then known
title: Seitaro Hata, Surgeon First Lieutenant, at the times and
places set
forth in the specifications hereto attached, and during a time of war
between
the United States of America and its Allies and Dependencies, and
Japan, did
violate the Laws and Customs of War.
Specification 3. That in or about July
or August, 1943, at Fukoka Prisoner of
War Branch Camp Number Three, Fukuoka
ken, Kyushu, Japan, the accused
Seitaro Hata, did willfully and unlawfully,
brutally mistreat and torture Morris
O. Killough, an American Prisoner of
War, by beating and kicking him, by
fastening him on a stretcher and pouring
water up his nostrils.
Specification 5. That on or about 15 May, 1944, at
Fukoka Prisoner of War
Branch Camp Number Three, Fukuoka ken, Kyushu, Japan,
the accused Seitaro
Hata, did, willfully and unlawfully, brutally mistreat
and torture Thomas B.
Armitage, William O Cash and Munroe Dave Woodall,
American Prisoners of
War, by beating and kicking them, by forcing water into
their mouths and
noses, and by pressing lighted cigarettes against their
bodies.
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U.S. COURTS 485
mura76 were respectively the camp doctor, interpreter, senior
noncommissioned
officer, and mess sergeant. The charges against them
arose
from two separate water torture incidents in which they partici-
Charge and
Specifications Against Seitara Hata, United States v. Hideji Nakamura,
U.S.
Military Commission, Yokohama, 1947 (emphasis added).
74. The charge and
specifications against Asano were:
Charge: That between 1 April, 1943 and 31
August, 1944, at Fukoka Prisoner
of War Branch Camp Number 3, Kyushu, Japan,
the accused Yukio Asana,
then a civilian serving as an interpreter with the
Armed Forces of Japan, a
nation then at war with the United States of America
and its Allies, did violate
the Laws and Customs of War.
Specification 1:
That in or about July or August, 1943, the accused Yukio
Asano, did willfully
and unlawfully, brutally mistreat and torture Morris O.
Killough, an American
Prisoner of War, by beating and kicking him, by
fastening him on a stretcher
and pouring water up his nostrils.
Specification 2: That on or about 15 May,
1944, at Fukoka Prisoner of War
Branch Camp Number 3, Kyushu, Japan, the
accused Yukio Asano, did,
willfully and unlawfully, brutally mistreat and
torture Thomas B. Armitage,
William O Cash and Munroe Dave Woodall, American
Prisoners of War, by
beating and kicking them, by forcing water into their
mouths and noses, and by
pressing lighted cigarettes against their bodies.
Specification 5. That between 1 April, 1943 and 31 December, 1943, the
accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and
torture John Henry Burton, an American Prisoner of War, by beating him, and
by fastening him head downward on a stretcher and forcing water into his nose.
Charge and Specifications Against Yukio Asano, United States v. Hideji Nakamura,
U.S. Military Commission, Yokohama, 1947 (emphasis added).
75. The charge and
specifications against Kita were:
Charge: That the following member of the
Imperial Japanese Army with his
the known title: Takeo Kita, Sergeant Major,
at the times and places set forth
in the specifications hereto attached, and
during a time of war between the
United States . . . and Japan, did violate
the Laws and Customs of War.
Specification 2: That between 1 April, 1943 and
31 August, 1944, at Fukoka
Prisoner of War Branch Camp Number 3, Kyushu,
Japan, the accused Takeo
Kita, did, willfully and unlawfully, brutally
mistreat and torture John Henry
Burton, an American Prisoner of War, by
beating him and by forcing water into
his nose.
Specification 4: That on
or about 15 May, 1944, at Fukoka Prisoner of War
Branch Camp Number 3,
Kyushu, Japan, the accused Takeo Kita, did, willfully
and unlawfully,
brutally mistreat and torture Thomas B. Armitage, William O
Cash and Munroe
Dave Woodall, American Prisoners of War by beating them,
forcing water into
their mouths and noses, and by pressing lighted cigarettes
against their
bodies.
Charge and Specifications Against Takeo Kita, United States v. Hideji
Nakamura,
Yukio Asano, Seitara Hata, and Takeo Kita, U.S. Military
Commission, Yokohama,
May 1–28, 1947 (emphasis added).
76. The charge and
specifications against Nakamura were less specifically related to
water
torture per se, but still dealt with forced dunking:
Charge: That the
following member of the Imperial Japanese Army, with his then
known title,
Hideji Nakamura, at the times and places set forth in the specifications
hereto attached, and during a time of war between the United States of America,
its
Allies and Dependencies, and Japan, did violate the Laws and Customs of
War.
Charge and Specifications Against Hideji Nakamura, United States v.
Hideji Nakamura,
U.S. Military Commission, Yokohama, 1947. None of the
specifications were on water
torture per se, but specifications two and nine
refer to forcing prisoners into a tank of water.
Id. The testimony discussed
infra links those specifications to water torture (emphasis
added).
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486 COLUMBIA JOURNAL OF TRANSNATIONAL LAW
[45:468
pated: one involved a single victim, John Burton, and the other
involved
several prisoners and arose from the jailers’ belief that prisoners
Armitage, Cash and Woodall had stolen food.77
The witness’s descriptions
painted a grim portrait of the
treatment meted out to POWs, and of the use of
water torture as a
primary means of interrogation. He was turned upside down,
water
poured up his nose, and he was beaten into unconsciousness.78
[T]hey
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.79
[T]hey 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 breath [sic]
without sucking in water.80
77. A separate trial arising
out of the same incidents of torture was instituted against
Genji Mineno. See
infra text accompanying note 85.
78. The full testimony reads:
American
prisoner Woodall . . . had stolen a shirt from the Japanese . . . was
stretched and tied on a hospital stretcher and severely beaten. He was turned
upside down and water poured up his nose and beaten into unconsciousness.
The
treatment lasted for about four hours. . . . . William Cash . . . WAS given
the identical treatment for the same offense. The Japanese immediately
involved in this punishment were FIRST LIEUTENANT HATA, medical
officer at
the camp, MR ASANO, civilian interpreter, MASTER SERGEANT
KITA, and the
unidentified Japanese Warant [sic] Officer.
Affidavit of Cpt. Vetalis Vernon
Anderson, Oct. 20, 1945, San Francisco, CA, Record of
Trial, United States v.
Hideji Nakamura, U.S. Military Commission, Yokohama, 1947, at
Exhibit 6. See
also Affidavit of Cpt. William Arno Blueher, Record of Trial, United States
v. Nakamura, at Exhibit 6.
79. The full testimony reads:
In addition to
the two [Japanese] who brought us over there, the following
[Japanese] were
also present and participated in the beatings and tortures;
Doctor Lieutenant
HATA, Sergeant KALISAKI, a discharged ex-soldier
named MANEO, a civilian
interpreter named OSANA. After beating me for a
while 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. When I revived they
would repeat the beatings and ‘water
cure’ . . . . The tortures and beatings
continued for about six hours.
Statement of Thomas B Armitage (one of the victims), Oct. 1, 1945, 29th
Replacement
Depot, United States v. Hideji Nakamura, U.S. Military
Commission, Yokohama, 1947.
80. The full testimony reads:
Two of the
Japanese guards, Kita and Osano (Kita was the Sergeant Major and
Osano was
the interpreter) . . . . These two Japanese then started beating me
with a
club, using a bamboo stick about two feet long and two inches thick. . . .
the beating . . . continued from 9:00 that morning until 1:00 o’clock in the
WALLACH 4/3/2007 12:09:53 PM
2007] HISTORY OF WATER TORTURE IN U.S. COURTS
487
[We] were strapped to stretchers and warm water
poured down our
nostrils until we were about ready to
pass out.81
[They] strapped him to a
stretcher and elevated his
feet and then poured on his face so that it was
almost
impossible for him to get his breath.82
[The victim] was then taken
into the corridor, strapped
to a stretcher, which was tilted so that his head
was
toward the floor and feet resting on a nearby sink.
Water was then
poured down his nose and mouth for
about twenty minutes. . . .83
afternoon. Then I was taken into the hallway of the barracks. Both of the
Japanese still insisting I was guilty and urging me to confess . . . . After
taking
me down into the hallway, 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. By this time, practically the entire Japanese
personnel of
the camp were present. I saw the Japanese Major who was the
Commanding
Officer and also the 1st Lt. who was his assistant. This 1st Lt.
told me while I
was strapped to the stretcher that he didn’t think I did it,
but it was his duty to
punish me anyway. They then began pouring water over
my face and at times
it was almost impossible for me to breathe without
sucking in water. This
torture continued for what must have been a half hour
or an hour. Finally I was
placed in a horizontal position and unstrapped. It
was impossible for me to
arise so one of the prisoners . . . helped me.
Affidavit of John Henry Burton, Apr. 26, 1946, Los Angeles, CA, United States v.
Hideji
Nakamura, U.S. Military Commission, Yokohama, 1947.
81. The full
testimony reads:
One of the Japanese Guards who was particularly bad was a
two star sergeant
named MENINO (phonetic) . . . . In August, 1943, I and a
civilian from Wake
Island named BILL CASH, were strapped to stretchers and
warm water poured
down our nostrils until we were about ready to pass out.
MENINO did this with
the help of two other Japanese guards.
Affidavit of
George Dee Stoddard, Oct. 22, 1945, Alameda, CA, United States v. Hideji
Nakamura, U.S. Military Commission, Yokohama, 1947.
82. The full testimony
reads:
At about 12:00 noon Kita and Osano took Burton and strapped him to a
stretcher and elevated his feet and then poured on his face so that it was
almost
impossible for him to get his breath. I was standing within three feet
of Burton
when this happened. While the Japs were giving Burton the ‘Water
Cure’ I
was forced to hold my right arm which was infected out at right
angles to my
body and the Japs were hitting it with clubs. Gibson also
identified Mineno as
having commonly been nicknamed by the POWs as ‘the water
snake.’
Sworn Statement of George E. Gibson (civilian contractor captured at
Wake Island), Sept.
28, 1945, 29th Replacement Depot, United States v. Hideji
Nakamura, U.S. Military
Commission, Yokohama, 1947.
83. The full testimony
reads:
BURTON . . . was then taken into the corridor, strapped to a
stretcher, which
was tilted so that his head was toward the floor and feet
resting on a nearby
sink. Water was then poured down his nose and mouth for
about twenty
minutes . . . . ASANO (5 star), the civilian interpreter of the
camp . . . was
responsible for this water treatment, and had done the beating
and poured the
water down BURTON’s nose and mouth.
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12:09:53 PM
488 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
[T]hey stood
them on their heads and poured water
down their noses and into their mouths
until they almost
choked.84
Genji Mineno was tried separately at
Yokohama85 for participating
in the same series of events.86 The evidence
introduced
against him included the same affidavits and witness statements
introduced
against the other four defendants. On the basis of that evidence,
87 all five were convicted of all torture specifications.88 It is
worth
noting that, in Minano’s case, the reviewing officer “in view of
the proof of
the guilt of the accused of the many beatings and other
vicious tortures”
thought his sentence of twenty years confinement at
hard labor was
“inadequate.”89
Affidavit of James William Pettit, Oct. 12, 1945, Alameda,
CA, United States v. Hideji
Nakamura, U.S. Military Commission, Yokohama,
1947.
84. The full testimony reads:
In about May of 1944, 3 Americans, one
whose name was William Cash took
some clothing from the store house . . . .
[Among other tortures] they stood
them on their heads and poured water down
their noses and into their mouths
until they almost choked.
Claude A
Thomas Dep., Sept. 18, 1945, 29th Replacement Depot, Luzon. P.I., United States
v. Hideji Nakamura, U.S. Military Commission, Yokohama, 1947.
85. Military
Commission Case Docket No 47 Tried at Yokohama June 25–28, 1946.
NARA NND
735027 Record Group 153, Office of the Judge Advocate General (Army),
Entry
143: War Crimes Branch; Case Files, 1944-49, Box 1025, File No. 36-449-Vol. I.
Mineno was a civilian employee of the Imperial Japanese Army.
86. The charges
and specifications were:
Charge: That between 1 Feb 1943 and 1 Sept 1945 at
POW Camp No. 3,
Kokura, Fukuoka, Japan, Genji Mineno . . . did willfully and
unlawfully
commit cruel, inhuman and brutal acts, atrocities and other
offenses against
certain American and Allied Prisoners of War, in violation
of the Laws and
Customs of War.
Specification 5. That in or about August,
1943, the accused, Genji Mineno,
together with other persons did, willfully
and unlawfully, brutally mistreat and
torture George De Witt Stoddard and
William O. Cash, American Prisoners of
War, by strapping them to a stretcher
and pouring water down their nostrils.
Specification 9. That in or about 15
May, 1944, the accused, Genji Mineno,
did, willfully and unlawfully, brutally
mistreat and torture Thomas B.
Armitage, William O. Cash, and Munroe Dave
Woodall, American Prisoners of
War, by beating and kicking them, by forcing
water into their mouths and
noses, and by pressing lighted cigarettes against
their bodies.
Reproduced in Synopsis of Charges, Pleas, Findings, Legal
Sufficiency, and
Sentence, Review of Staff Judge Advocate, Headquarters
Eighth Army, United States
Army, Yokohama, Japan, Document No. 46, Aug. 17,
1946, at 1–2.
87. See supra notes 69–81.
88. Surgeon First Lieutenant Hata
was sentenced to twenty-five year confinement at
hard labor. Mr. Mineno, the
civilian guard, and Mess Sergeant Nakamura both received
twenty years
confinement at hard labor. Sergeant Major Kita and Mr. Asano, the interpreter,
were given confinement for fifteen years at hard labor. Review of Staff Judge
Advocate,
Headquarters Eighth Army, United States Army, Yokohama, Japan, Case
No. 53, Oct. 15,
1948, at 1.
89. See Reviews of the Yokohama Class B and
Class C War Crimes Trials by the 8th
Army Judge Advocate, 1946–1949. National
Archives Publication M1112.
WALLACH 4/3/2007 12:09:53 PM
2007] HISTORY OF
WATER TORTURE IN U.S. COURTS 489
In an entirely separate water torture case,
the United States
tried Yagoheiji Iwata.90 The torture charges against Iwata
involved
his mistreatment of a Dutch Prisoner of War, A. A. Peters.91 One of
Peters’ superior officers was a witness to the torture:
After [beating
Peters] they let him down again . . . and
Iwata told a few soldiers to hold
Peters head backwards.
Then he told another soldier to put a piece of
cloth over his mouth and ordered another soldier
again, to fetch a bucket of
sea water. There were five
buckets which were standing on a special tank in
case
of fire. At that point the Japanese sick bay attendant,
who was
present at the moment, and who expected
what was going on, intervened. He
told him, to Sergeant
Iwata, that it is dangerous because it is sea water
and the man will get sick. At that moment Sergeant
Iwata said ‘Let him die.’
Further, the soldiers lifted
the buckets and Iwata assisted in pouring the
sea water
over Peters face. On account of the piece of cloth
over his
mouth, his nose was closed so he was forced
to swallow the sea water causing
a swollen belly.92
Upon that evidence, Iwata was convicted of the torture
charge.93
In addition to those single-nation military commissions con-
90.
United States v. Iwata, Case Docket No 135, Mar. 31, 1947 to Apr. 3, 1947,
Yokohama. NND735027, Record Group 153: Office of the Judge Advocate General
(Army), Entry 143: War Crimes Branch; Case Files, 1944-49, Box 1036, File No.
36-449-
Vol. I.
91. The charges and specifications against Iwata included:
Charge: That the following member of the Imperial Japanese Army, with his
then known title: Yagoheiji IWATA, Sergeant, at the time and place set forth
in the specifications hereto attached, and during a time of war between the
United States of America, its Allies and Dependencies, did violate the Laws
and Customs of War.
Specification 1. That on or about 24, September, 1943, at
Fukuoka Prisoner of
War Camp Number Two, Koyagimura, Nagasaki, Kyushu, Japan,
the accused,
Yagoheiji Iwata, singly and with others, did willfully and
unlawfully mistreat
and torture Marine Third Class A. A. Peters, a Dutch
Prisoner of War, by
beating him, by throwing him on the ground, by hanging
him by his hands from
a post, by holding his head back and forcing him to
swallow a bucketful of sea
water, by placing him in solitary confinement and
by otherwise abusing him.
Record of Trial, United States v. Iwata, supra note
90, Vol. 1 (Charges and
Specifications Against Yagoheiji Iwata), at 1–2.
92. Testimony of Johannas J. Budding, Captain, Royal Netherlands Indies Army,
Special Troops. Reproduced in Synopsis of Charges, Pleas, Findings, Legal
Sufficiency,
and Sentence, Review of Staff Judge Advocate, Headquarters
Eighth Army, United States
Army, Yokohama, Japan, Sept. 17, 1948, at 1.
93. Iwata was found guilty (but the words “a bucketful of” and “by placing him
in
solitary confinement” were struck from the charge). Iwata was sentenced to
twelve years of
hard labor.
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490 COLUMBIA
JOURNAL OF TRANSNATIONAL LAW [45:468
ducted by the United States, water
torture was a major issue in proceedings
before the IMTFE. That tribunal was
created by General
MacArthur in his position as Supreme Commander of Allied
Powers,
(SCAP).94 An American Judge95 sat on the tribunal and voted for
convictions96, and the chief prosecutor was an American.97 Accordingly,
its
record should have some precedential weight, in history if
not in law.
C.
The International Tribunal
The IMTFE was principally concerned with Japanese
crimes
against states, including acts of aggression and crimes against
peace,98 but it also considered charges of misconduct against military
personnel and civilians, including murder, rape, and torture.99
The Judgment
of the International Military Tribunal for the
94. IMTFE Charter, supra note
47.
95. Justice John P. Higgins of the Massachusetts Supreme Court, and, as a
replacement
in July, 1946, M.G. Myron Cramer, former Judge Advocate of the
Army. RICHARD MINEAR,
VICTOR’S JUSTICE: THE TOKYO WAR CRIMES TRIAL (1971).
Interestingly, Cramer, a former
Judge Advocate General of the United States
Army, had participated extensively in the
drafting and application of the
procedural and evidentiary rules which governed both the
Nuremburg Tribunal
and the IMTFE. Wallach, supra note 19, at 858.
96. See IMTFE Judgment,
Record, supra note 25, at 48,413.
97. See Joseph Keenan, Observations and
Lessons from International Criminal Trials,
17 U. KAN. CITY L. REV. 117, 123
(1949).
98. See IMTFE Indictment, 1 THE TOKYO WAR CRIMES TRIAL, supra note
25, at ¶¶ 1–
53.
99. The IMTFE Indictment charged the defendants, inter
alia, with torture under
conventional war crimes and crimes against humanity.
Specifically, the defendants
allegedly had ordered, authorized, and
permitted:
the Commanders-in-Chief of the several Japanese naval and military
forces in
each of the several theatres of war in which Japan was then
engaged, and the
officials of the Japanese War Ministry, and the persons in
charge of each of the
camps and labor units for prisoners of war and civilian
internees in territories
of or occupied by Japan and the military and civil
police of Japan, and their
respective subordinates frequently and habitually
to commit . . . breaches of the
Laws and Customs of War. . . .
IMTFE
Judgment, supra note 96, at Appendix D, Section One. Allegedly “prisoners of war
and civilian internees were murdered, beaten, tortured and otherwise
ill-treated, and female
prisoners were raped by members of the Japanese
forces.” Id. Defendants allegedly
inflicted
[e]xcessive and illegal
punishment of prisoners of war, contrary to Article 8 of
the said Annex to
the said Hague Convention and to Part III, Section V,
Chapter 3 of the said
Geneva Convention, and to the said assurances: 1.
Prisoners of war were
killed, beaten and tortured without trial or investigation
of any kind, for
alleged offences.
Id. at Section Four. Finally, allegedly “[l]arge numbers of
the inhabitants of [occupied]
territories were murdered, tortured, raped and
otherwise ill-treated, arrested and interned
without justification, sent to
forced labor, and their property destroyed or confiscated.” Id. at
Section
Twelve. IMTFE Indictment, supra note 98.
WALLACH 4/3/2007 12:09:53 PM
2007] HISTORY OF WATER TORTURE IN U.S. COURTS 491
Far East held that:
The
practice of torturing prisoners of war and civilian
internees prevailed at
practically all places occupied
by Japanese troops, both in the occupied
territories
and in Japan. The Japanese indulged in this practice
during
the entire period of the Pacific War. Methods
of torture were employed in all
areas so uniformly as
to indicate policy both in training and execution.
Among these tortures were the water treatment . . . .100
As noted above, the
Judgment described the water treatment as
“commonly applied.” It was called
by a number of names (water
treatment, the water test,101 water torture,102
suffocation by immersions103),
but the descriptions in the IMTFE trial record
are generally
of two types:
There were two forms of water torture. In the
first,
the victim was tied or held down on his back and cloth
placed over
his nose and mouth. Water was then
poured on the cloth. Interrogation
proceeded and the
victim was beaten if he did not reply. As he opened
his
mouth to breathe or answer questions, water went
down his throat until he
could hold no more. Sometimes,
he was then beaten over his distended stomach,
sometimes a Japanese jumped on his stomach, or
sometimes pressed on it with
his foot.
In the second, the victim was tied lengthways on a
ladder, face
upwards, with a rung of the ladder across
his throat and head below the
latter. In this position
he was slid first into a tub of water and kept there
until
almost drowned. After being revived, interrogation
proceeded and he
would be reimmersed.104
Another detailed description before the IMTFE was
provided by a
Swiss engineer held by the Japanese in the Dutch East Indies:
The third degree of punishment was suffocation by
100. IMTFE Judgment, supra
note 96, at 49,663.
101. IMTFE Record, supra note 25, at 13,811, 13,812.
102. Id. at 12,940.
103. Id. at 13,691.
104. Affidavit of J.L. Wilson, The
Right Reverend Lord Bishop of Singapore, admitted
as Prosecution Exhibit
1519A, Dec. 16, 1946, IMTFE Record, supra note 25, at 12,935.
This testimony
refers to the same events discussed in the U.K. “Double Tenth Trial,” supra
note 21.
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492 COLUMBIA JOURNAL OF
TRANSNATIONAL LAW [45:468
immersions. A towel was fixed under the chin and
drawn 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.
Did the prisoner not confess, he was mostly
led back to the
cell to pass the night in his wet
clothes.105
The technique was similar in
Shanghai:
Various tortures were administered during interrogation,
the
main ones being “Water Torture,” which is
done by laying a person flat on a
bench with his head
overhanging one end. A funnel is then placed in the
mouth and water forced into the abdomen and lungs.
The torturer then jumps on
the stomach of his victim
producing a drowning sensation.106
A French
prisoner of the Japanese at Cao-Bang in Vietnam described
“water punishment”
applied to him:
I was submitted to another group of torturers: a soldier
held my head with one hand and with the other
stopped my mouth during this
time a second soldier
poured cold water from a teapot into my nostrils, my
head thrown backwards to a position lower than the
bench on which I was
lying. This operation was repeated
about fifteen times and the teapot was
filled as
many times. This produced in me the early stages of
asphyxia and
I estimate that I must have had 3 or 4 liters
of water forced down me.107
There was a significant reason the IMTFE’s Judgment listed
water torture
first in its determination that the Japanese uniformly
engaged in torture
throughout occupied areas.108 The practice, in its
105. Report of Dr. R.
Flachs on treatment by Japanese Kenpeitai [military police] at
Bandung, Dutch
East Indies, admitted as Prosecution Exhibit 1752A, Dec. 27, 1946, IMTFE
Record, supra note 25, at 13,691.
106. Affidavit of Cpt. Edward E.
Williamson, sworn to on June 6, 1946, admitted as
Prosecution Exhibit 1892-A,
Jan. 3, 1947, IMTFE Record, supra note 25, at 14,168.
107. Affidavit of
Marcel Robert, admitted as Prosecution Exhibit 2134-A, Jan. 16, 1947,
IMTFE
Record, supra note 25, at 15,339.
108. IMTFE Judgment, supra note 96, at
49,664.
WALLACH 4/3/2007 12:09:53 PM
2007] HISTORY OF WATER TORTURE IN
U.S. COURTS 493
various iterations, was widespread and uniform.109 Its
condemnation,
and the ensuing severe sentences of those who ordered and
permitted
it,110 was approved in its entirety by Myron Cramer,111 the
U.S.
Judge on the Tribunal.112
109. The trial record of the IMTFE contains
numerous references to forms of water
torture inflicted by Japanese troops.
These include, inter alia: Affidavit of James Strawhorn
regarding torture at
a POW camp at Nichols Field in the Philippines (tying victim to a board
with
head lower than feet and pouring salt water into his mouth), admitted as
Prosecution
Exhibit 1453, Dec. 12, 1946, IMTFE Record, supra note 25, at
12,605–07; Affidavit of
Amhad Bin Cheteh regarding death of prisoners
following water torture at Penang
[Malaysia], admitted as Prosecution Exhibit
1531A, Dec. 16, 1946, id. at 12,958–59; Solemn
Declaration of Harry Joseph
regarding tortures by Kempeitai at Kyaikto [Myanmar],
admitted as Prosecution
Exhibit 1552A, Dec. 16, 1946, id. at 12,981–82 (“a large quantity of
water
slowly poured into [prisoner’s] mouth and nostrils, so that the prisoner
suffocated”);
Affirmation of Pyaray Mohan, admitted as Prosecution Exhibit
1611A, Dec. 18, 1946, id. at
13,186 (victim of water torture in Andaman
Islands); Affirmation of Murad Ali, admitted as
Prosecution Exhibit 1616A,
Dec. 18, 1946, id. at 13,192–93 (Indians tried as spies in
Adaman Islands,
water torture carried, including by one of the judges); Affidavit of Maj. A.
Zimmerman, admitted as Prosecution Exhibit 1750, Dec. 26, 1946, id. at 13,682–84
(“water
test” at Buitenzorg [now Bodor], Indonesia); Affidavit of Prof. E.
DeVries, admitted as
Prosecution Exhibit 1751, Dec. 26, 1946, id. at
13,685–86 (underwent “water test” twentytwo
times during a period of two
months at Buitenzorg [now Bodor], Indonesia); Affidavit
of Cdr. C.D. Smith
regarding water torture at Shanghai, admitted as Prosecution Exhibit
1901A,
Jan. 3, 1947, id. at 14,179, 14,181–82:
The water treatment consists of
lashing a man face up across the desk top. A
bath towel is then so rolled as
to form a circle around his nose and mouth, and a
five-gallon can of water,
which was generally mixed with the vilest of human
refuse and other filth,
such as kerosene, was then put handy . . . if he did not
respond, the water
was poured into the space made by the bath towel, forcing
the prisoner to
either swallow and inhale the vile concoction or strangle
himself. This is
kept up, questioning between doses, until the man is at the
point of
unconsciousness . . . the water is allowed to drain out of him. When he
has
sufficiently recuperated the treatment is resumed.
Affidavit of Dominique
Poli, admitted as Prosecution Exhibit 2135, Jan. 16, 1947, id. at
15,340–41
(given “water punishment” several times at Hanoi, Vietnam by Japanese police);
and Declaration of Leon Artouard, interrogated by Kempetai at Saigon, Vietnam,
admitted
as Prosecution Exhibit 2143A, Jan. 16, 1947, id. 15364, 15,366:
I
was placed on my back on a bench and firmly tied down so as to undergo
‘torture by water’ which consisted in causing the first stages of asphyxiation
by
the absorption of water into the respiratory tract. Water was poured at
the same
time into the nose and mouth, which is kept open with a whip or a
staff slipped
between the teeth, or on a rag held firmly over these two
orifices.
Id.
110. Kenji Dohihara, Seishiro Itagaki, Heitaro Kimura, Akira
Muto, and Hideki Tojo,
the IMTFE defendants who were convicted on Count 54
(ordering, authorizing, and
permitting commission of war crimes including,
inter alia, torture), were all sentenced to
death by hanging. IMTFE Judgment,
supra note 96. Shunroko Hata, Kuniaki Koiso, Koki
Hirota, who were convicted
on Count 55 (failure to take adequate steps to prevent war
crimes), were
sentenced to life imprisonment, but defendant Iwane Matsui was sentenced to
death after he was convicted of failing to prevent the Nanjing massacre, and
Mamoru
Shigemitsu was sentenced to seven years imprisonment based on
mitigating circumstances.
Id. Many of the defendants were, of course,
convicted of other crimes of conspiracy, of
aggression and against the peace.
Id.
111. Signature page, IMTFE Record, supra note 25, at 49,858.
112. A
number of the Members separately concurred, Delfin Jarnilla (Philippines),
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494 COLUMBIA JOURNAL OF TRANSNATIONAL LAW
[45:468
The water cure, however, has had a longer association with
the
U.S. Government than its application to American and Allied
prisoners of the
Japanese. In fact, in the international context, it
came to the attention of
the courts of the United States as a result of
the Spanish-American War, and
the ensuing U.S. occupation of the
Philippine Islands.
III. THE
PHILIPPINES
The United States has largely forgotten its adventure in the
Philippines, but at the time the U.S. occupation was highly controversial
at
home, not least because of allegations of misconduct by
American troops.
Eventually, courts-martial reached as high as a
general officer,113 leaving
the administration to face congressional
inquiries, and the public with a
sour aftertaste from its “splendid little
war.”114 One highly publicized
aspect of that misconduct was the
“water cure.”
Testifying before
Congress, the U.S. Administrator in the
Philippines, William Howard Taft
(later President and Supreme
Court Justice) conceded that the “water cure”
had been used as a
questioning technique.115 The testimony coincided with
publication
of a soldier’s letter home boasting of use of the water cure on
Filipino
insurgents.116
The technique persisted in the Philippines. In the
compensatory
damages phases of an action against the estate of former
Philippine
President Ferdinand Marcos, a U.S. District Court articulated
what it described as both “a human rights violation” and “a form of
torture:”
“[t]he ‘water cure,’ where a cloth was placed over a dedissented
in part,
Bernard Roling (Netherlands), or entirely dissented Henri Bernard
(France),
and Rabhabinod Pal (India). 21 THE TOKYO WAR CRIMES TRIAL, supra note 25.
113. See Guénaël Mettraux, US Courts-Martial and the Armed Conflict in the
Philippines (1899-1902): Their Contributions to National Case Law on War Crimes,
1 J.
INT’L CRIM. JUST. 135 (2003) (Court martial of General Jacob Smith).
General Smith was
charged with “conduct to the prejudice of good order and
military discipline” before a court
martial in Manila from April 24 to May 3,
1902. Id. at 139. The specifications included
giving orders that “I want no
prisoners,” and “the more you kill and burn, the better you will
please me.”
Id. General Smith was convicted on the charge (although not all the
specifications), and sentenced to be admonished. Id. at 140.
114. See John T.
Bethel, A Splendid Little War, HARV. MAG., Nov./Dec. 1998, at 44,
available
at http://www.harvardmag.com/nd98/war.html (“Ambassador John Hay, writing
from London to Theodore Roosevelt, declared that from start to finish [the
Spanish-
American War] had been ‘a splendid little war.’”).
115. MILLER,
supra note 35, at 213.
116. Id.
WALLACH 4/3/2007 12:09:53 PM
2007]
HISTORY OF WATER TORTURE IN U.S. COURTS 495
tainee’s mouth and nose and water
poured over it producing a drowning
sensation.”117
The Philippines came
into U.S. possession as a result of the
Spanish-American War in 1898.118
During the conflict, the United
States entered into tentative negotiations
with Philippine nationalist
guerillas who had been engaged in a revolution
against Spanish rule.
American occupation of the islands, and their
subsequent transfer
from Spanish to U.S. sovereignty, eventually resulted in
a split between
Spain and the United States.119 A bloody conflict
followed.120
The fight against the Philippine insurrectionists was, to say
the least, controversial at home.121 The American homeland was divided
between self-described “imperialists” and “anti-imperialists,”
and the
conduct of the war resulted in numerous political conflicts.
Not the least of
those was the argument over alleged mistreatment of
rebel prisoners by the
American counter-insurgency forces,122 including
allegations of various forms
of torture. Thus, for example, a
committee was formed in 1902 to “vindicate
the National Character.”
123 The New York Times, then a staunchly
pro-imperialist newspaper,
opined that:
Reports of cruelty, torture and
inhuman procedures in
the Philippines have come to their ears. They have
been shocked by Gen. Jacob H. Smith’s admission
that he issued the order to
burn and kill . . . . We beg
to remind the committee that it will be
disobedient to
its instructions if it investigates and reports upon nothing
but the water cure torture and wanton killing. The
American people denounce
as cruel and monstrous
Gen. Smith’s orders to kill male natives of Samar
above the age of ten. But all candid and fair-minded
American not only want
to know but insist upon
knowing the truth about the conditions of the war in
the Philippines. The committee will be unwise . . . if
it excludes from
considerations such testimony as this
from William H. Taft, Civil Governor of
the Philip-
117. In re Estate of Ferdinand E. Marcos Human Rights Litigation,
910 F. Supp. 1460,
1463 (D. Haw. 1995).
118. See generally MILLER, supra
note 35
119. See id. at 31–56.
120. See id. at 57–66.
121. See id. at
104–28.
122. Inquiries were conducted in Congress and the Press on a
continuing basis during
the period between 1899 and 1903. See generally id.
123. Full Disclosure of the Facts, N.Y. TIMES, May 1, 1902, at 8.
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pines: That there has been cruelty in the Philippines
and that the “water
cure” has in some cases been administered
to natives is no doubt true; that
it typifies
the conduct of the army in the islands I do not believe.
[I]t
is not strange that young officers . . . should resort
to every legitimate
means to endeavor to find where
guns were hid by the treacherous foe, and if
they
found in vogue a system of torture among the Filipinos,
which the
Spaniards, too, had used, is it strange
that human nature weakened.124
As
the New York Times indicated, not the least uncommon of the
forms of torture
encountered in the Philippines was the water cure.
A. The Water Cure During
the U.S. Occupation of the
Philippines
The American Commander in the
Philippines in 1900 was
moved to complain that when enemy soldiers were
“pursued too
closely they [would] hide their rifles and scatter to their
homes, and
no longer wear uniforms or any distinctive insignia but use the
dress
of noncombatants of the country.”125 As the American people
learned
in some detail, one common means for countering these “illegal
enemy
combatants” was questioning using a form of water torture.
126
124. Id.
125. SAN FRANCISCO CALL, Sept. 20, 1900.
126. An extensive study of
counterinsurgency in the Philippine War concluded, with
considerable support,
that:
Physical mistreatment and torture were never sanctioned by either
Division
headquarters in Manila or district headquarters, and there were
constant
warnings against it; but it clearly occurred. The most infamous
torture was the
“water cure,” which consisted of forcing water down the
victim’s throat until
he agreed to divulge the required information. An Army
investigation in 1902
concluded that some soldiers had given Filipinos the
water cure, but smugly
concluded that in “comparatively few instances is
there evidence that a
commissioned officer was present.” Given the prevalence
of testimony in
private papers, courts-martial, and other Army
investigations, it is impossible
to concur with this judgment. An Army board
called to investigate . . .
allegations that torture was widespread heard
testimony from both Americans
and Filipinos which suggested that in Tayabas
alone, between October and
December 1901, there were seventeen cases of
physical abuse involving eight
U.S. officers . . . . [I]n southwestern Luzon
the use of the “water cure” was not
the result of random individual sadism.
Rather it appears to have been both a
means of retaliation and a
distressingly common manner of interrogation
among officers assigned to
intelligence work.
BRIAN LINN, THE U.S. ARMY AND COUNTERINSURGENCY IN THE
PHILIPPINE WAR, 1899–1902,
at 145–46 (1989).
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Descriptions of the “water
cure” vary, but their similarity to
reports of its application by the
Japanese is startling. In testimony
before the Senate Committee on the
Philippines, former Sgt. Mark
Evans described the administration of the water
cure to Filipinos on
four different occasions on the island of Luzon.
According to Evans:
In one case the “cure” was administered by native
scouts and in the others by an American soldier. During
an expedition to
neighboring islands the witness
said that he had seen an American soldier
take two
suspected natives into the water and duck them. He
secured a
confession as to the hiding of guns in one
case, but none in the other.
After the first case of ducking the victim seemed, [Evans]
said, to have been
quite disabled, being apparently
so weak that he was unable to rise.127
Another witness, former Private Edward Norton, described
one instance in
which he had assisted in water-curing a native. The
man’s mouth, he said, was
forced open with a stick and the water
poured down his throat. The effect of
the treatment was temporary
strangulation. In this particular case, he said,
the native delivered up
a number of rifles and pistols after receiving the
cure.128
Another former soldier, First Lt. Grover Flint, testified that he
has been a witness to at least twenty applications of the water cure.
Flint
stated that he had never seen anyone die as a result of its application,
although he had seen a prisoner rendered unconscious. He
added that “in some
cases where it was given to old men he had seen
their teeth fall out.”129
Still another ex-enlisted man, L.E. Hallock, “told of the infliction
of the
cure upon a dozen natives . . . . He said they were captured
and tortured in
order to secure information of the murder of [an
American soldier who was
tortured before his death].” When asked
the effect of the treatment, he
testified that “[t]he stomach would
swell up, and in some cases I witnessed
blood come from the
mouth.”130
The response to that sort of testimony,
along with the ensuing
commentary, was often startling. The attitude of at
least some com-
127. Tell of “Water Cure” Cases, N.Y. TIMES, June 13, 1902,
at 3.
128. Id.
129. Testified on “Water Cure,” N.Y. TIMES, Apr. 22, 1902,
at 2.
130. The Water Cure Described, N.Y. TIMES, May 4, 1902, at 13.
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[45:468
pany grade officers was stated by an anonymous “Army Captain”
who
wrote to the New York Times to take exception to the inference
in an
editorial that “the methods of torture used in the Philippine Islands
have
been used against insurgents.”131 He explained that while
some larger bands
of insurgents could be considered legitimate, there
were hundreds of smaller
ones which “showed by their actions” that
they were actually robbers.132 To
destroy these bands, he said, it was
necessary to force individuals to
divulge information.133 There was
another group, as well, he added, which
required resort to “vigorous
measures.”134 These were local representatives
of well-known guerilla
leaders who pretended to be peace-loving but actually
collected
money and information for the insurgents.135 The explication which
followed is worth quoting at length:
It was against such men as described
above that unauthorized
methods were used to obtain information, and
against such men only. From the results obtained it
became simply a case
where the end justifies the
means. A legitimate combatant was never
ill-treated.
The water cure is very uncomfortable, but not serious.
A
surgeon attached to one of the regiments and called
on for a report as to the
water cure, reported to the
regimental commander that it was “a crude sort of
stomach pump.” That describes it perfectly. We all
know that when the stomach
becomes over full it
needs no assistance in expelling the excess of contents,
so it is easy to appreciate the falsity of the reports
. . . of Filipinos who
have been subjected to the
water cure and then have had people jump on the
full
stomach in order to expel the water. At the best the
water cure is
brutal enough. I do not think that any
one would add deliberately to the
brutality. Salt,
kerosene, and sand mixed with the water used are fancies
of the irresponsible in my opinion. I never heard
of anything but plain water
being used. I am not writing
to defend torture, but to let you know what I
have
not seen published this Winter; that is, that these vigorous
measures
were not used against combatants, but
131. Letter to the Editor, N.Y. TIMES,
July 13, 1902, at 8.
132. Id.
133. Id.
134. Id.
135. Id.
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used against outlaws only.136
As one counterinsurgency study noted:
Officially, the Army condemned the water cure, which
fell under [General
Order] 100’s proscription of torture.
Unofficially, many officers winked at
the practice,
and military courts proved exceedingly reluctant
to punish
officers charged with applying coercive
methods. As the war progressed the
number of incidents
of abuse grew as officers . . . came to believe
that
the “cure” was the only way to uproot the guerilla
infrastructure. Even
well-known champions of the
policy of attraction . . . conceded that the
water cure
“might be a good thing if judiciously administered in
occasional doses, provided that the antis [antiimperialists]
at home did not
find it out.”137
Secretary of War Elihu Root initially responded to charges
before the Senate with a flat denial. In February 1902, he answered
an
inquiry from Sen. Henry Cabot Lodge (R-MA), the Committee
Chair, and
transmitted reports from officers in the Philippines. Referring
to those
reports, Secretary Root claimed that “in substantially
every case [alleging
torture] the report has proved to be unfounded or
grossly exaggerated.”138 He
added that an allegation that “the ‘water
cure’ is the favorite torture . . .
to force natives to give information . .
. [and] already is under
investigation.”139 Root then quoted an enclosed
letter from Gen. Funston who
called the allegations concerning
the use of water torture an “atrocious lie
without the slightest
foundation in fact.”140
Less than two months later,
Secretary Root had substantially
changed his position. In light of additional
testimony before Sen.
Lodge’s Committee,141 he announced that “directions
[had] been
136. Id. (emphasis added).
137. ANDREW BIRTLE, U.S. ARMY
COUNTERINSURGENCY AND CONTINGENCY
OPERATIONS DOCTRINE, 1860–1941, at 132
(1998).
138. Cruelty Charge Denied, N.Y. TIMES, Feb. 20, 1902, at 3.
139.
Id.
140. Id.
141. Root specifically mentioned the testimony of Sgt.
Charles S. Riley. Riley had
testified to Lodge’s Committee that:
The
presidente [village chief] was tied and placed on his back under a water
tank
holding probably one hundred gallons.
The faucet was opened and a stream of
water was forced or allowed to run
down his throat. His throat was held so he
could not prevent swallowing the
water, so that he had to allow the water to
run into his stomach. He was
directly under the faucet with his mouth held
wide open. When he was filled
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500 COLUMBIA
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given to the Judge Advocate General of
the Army to take proper
steps,” and that the “War Department will be glad to
receive the earliest
possible information of any further evidence which may
be elicited
by the committee, tending to fix responsibility upon any one in
the military service of the United States for any violation of the laws
of
war.”142 He directed the Army Commander in the Philippines that
“nothing can
justify or will be held to justify the use of torture or inhuman
conduct of
any kind on the part of the American Army.”143
Courts martial were eventually
held, one defendant was convicted,
144 and the water cure drifted off the
front pages and out of the
with water it was forced out of him by pressing a
foot on his stomach or else
with the hands, and this continued from five to
fifteen minutes. A native
interpreter stood immediately over this man as he
lay on the floor and kept
saying some word which I should judge meant
“confess” or “answer.”
One of the men . . . took a syringe from his
saddlebag, and another man was
sent for a can of water . . . holding about
five gallons.
The syringe did not have the desired effect and the doctor
ordered a second
one. The man got a second syringe that was inserted in his
nose. Then the
doctor ordered some salt and a handful of salt was procured
and thrown into the
water. Two syringes were then in operation. The
interpreter stood over him in
the meantime asking for this second information
that was desired. Finally he
gave in and gave the information they sought and
then he was allowed to rise.
Testimony Before U.S. Standing Committee on the
Philippines, Apr. 14, 1902. Reprinted in
GEORGE J.A. O’TOOLE, THE SPANISH
WAR: AN AMERICAN EPIC, 1898, at 389 (1986).
142. More Courts Martial in the
Philippines, N.Y. TIMES, Apr. 16, 1902, at 1.
143. Id. Root enclosed
directions to the Adjutant General of the Army to cable General
Chafee, the
new commander in the Philippines, and directing that General Jacob Smith be
court-martialed if he had given an order to kill all males over the age of ten
in a Philippine
province. He also directed that officers named as having
administered the water cure be
tried by a court martial. He concluded:
The
President desires to know in the fullest and most circumstantial manner, all
the facts, nothing being concealed and no man being for any reason favored or
shielded. For the very reason that the President intends to back up the army in
the heartiest fashion in every lawful and legitimate method of doing its work he
also intends to see that the most rigorous care is exercised to detect and
prevent
any cruelty or brutality, and that the men who are guilty thereof are
punished.
Great as the provocation has been in dealing with foes who
habitually resort to
treachery, murder and torture against our men, nothing
can justify or will be
held to justify the use of torture or inhuman conduct
of any kind on the part of
the American Army.
Id. (emphasis added).
144. National Archives records related to proceedings of U.S. Army
courts-martial or
courts of inquiry can be found in Record Group 153, Records
of the Judge Advocate General
(Army). See Mettraux, supra note 113. Major
Edwin Glenn and Lieutenant Edwin
Hickman were tried for conduct to the
prejudice of good order and military discipline by a
court martial in
Catlalogan, Samar in May 1902 for their alleged use of the water cure. The
defense was military necessity, justified by the illegal conduct of the
insurgents. Hickman
was acquitted and Glenn suspended from command for one
month and fined $50. In his
review, the Army Judge Advocate recognized that
the charges constituted “resort to torture
with a view to extort a
confession.” Id. at 145. He recommended disapproval because “[t]he
United
States cannot afford to sanction the addition of torture to the several forms of
force
which may be legitimately employed in war . . . .” Id. (emphasis
added). President
Roosevelt affirmed the conviction of Major Glenn and
disapproved the acquittal of
Lieutenant Hickman. Id.
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American
consciousness until it was brought back to the headlines as
the cruel
brutality of a fierce and heartless foe.
The water cure, however, apparently
persisted in the Philippines
after the Japanese occupation ended. During the
regime of
Ferdinand Marcos (1965–1986), press reports alleged continuing use
of water torture against government opponents.145 Eventually, that
conduct
resulted in a civil action in U.S. federal court.
B. The Marcos Regime’s
Conduct on Trial
In March 1986, a number of law suits were filed, eventually
resulting in a class action involving over ten thousand plaintiffs.146
The
court’s findings demonstrated, inter alia, that water torture as a
form of
interrogation and intimidation had survived intact in the Philippines:
Immediately after the declaration of martial law [Orders]
caused the arrests
of persons accused of subversions,
apparently because of their real or
apparent opposition
to the . . . government. . . . The arrest orders
were
means for detention of . . . plaintiffs. During
those detentions the
plaintiffs experienced human
rights violations including, but not limited to
. . . [t]he
“water cure,” where a cloth was placed over the detainee’s
mouth and nose, and water poured over it
producing a drowning sensation.147
The court affirmed a $766 million jury verdict in favor of the
Plaintiffs and
against former Philippine President Marcos. That civil
verdict has been
mirrored in at least one criminal proceeding before
the courts of the United
States.
145. Post-war use of the water cure was not limited to the
Philippines. There were also
reports of its use in the Republic of Korea.
Seoul Opposition Asks Free Elections Next
August, N.Y. TIMES, Dec. 7, 1979,
at A11 (“Dissident sources said army investigators used
water torture on
Christian students . . . . [T]he investigators pumped water into the stomachs
of detained students through their mouths and noses and then jumped on them . .
. .”). See
also Henry Stokes, Korea’s Church Militant, N.Y. TIMES MAG., Nov.
28, 1982, at SM67
(“Moon testified that he had been subjected to ‘water
torture’: pumping the stomach full of
water and then kicking it, a technique
that can cause severe internal injuries while leaving no
outward trace.”).
Similar reports also surfaced in Brazil. Issue of Torture Growing in
Brazil,
N.Y. TIMES, Nov. 16, 1975, at 18 (“At one point ‘laughter and wisecracks’ were
said
to have accompanied water torture.”).
146. In re Estate of Ferdinand
E. Marcos Human Rights Litigation, 910 F. Supp. 1460,
1463 (D. Haw. 1995).
147. Id.
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IV. THE TEXAS WATER TORTURE CASE
In 1983, the
Department of Justice affirmed that the use of
water torture techniques was
indeed criminal conduct under U.S. law.
Sheriff James Parker of San Jacinto
County, Texas, was charged,
along with three of his deputies, for handcuffing
prisoners to chairs,
placing towels over their faces, and pouring water on
the cloth until
they gave what the officers considered to be confessions.148
The officers
were charged with violating the prisoners’ civil rights. Count
One of the Indictment asserted that the defendants 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.
149
The Sheriff and his deputies were all convicted by a
jury under
Count One,150 (as well as under other counts alleging
constitutional
violations for the same conduct),151 resulting in at least a
four
year sentence on that Count.152 The trial included testimony of another
former deputy that the Sheriff and the other Defendants “gave
[a prisoner]
the water treatment:”
A towel was draped over his head . . . He was pulled
back in the chair and water was poured over the
towel.153
The victims’
testimony was strikingly similar to other instances
of water torture at other
times and places
Q: Were you frightened?
A: Yes.
Q: What were you
afraid of?
A: Afraid of drowning; it was hard to breathe.
148. Brief of
Petitioner-Appellee, United States v. Lee, No. 83-2675 (5th Cir. Nov. 9,
1984).
149. Id.
150. Id. at 7.
151. Id. at 4, 7.
152. Id. at 7.
153. United Press International, Ex-Deputy Tells Jury of Jail Water Torture,
N.Y.
TIMES, Sept. 1, 1983, at A22.
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HISTORY OF WATER TORTURE IN U.S. COURTS 503
Testimony of former inmate Kevin
Coffman.154
My hands was handcuffed up under the table and water
was
poured into the face of the towel until I started
suffering a state of
suffocation and I felt that my life
was in danger.
Testimony of former
inmate Craig Punch.155
I thought I was going to drown.
Testimony of former
inmate James Hicks.156
On an appeal157 by one of the deputies, the Fifth
Circuit described
the trial below:
Lee was indicted along with two other
deputies, Floyd
Baker and James Glover, and the County Sheriff,
James
Parker, based on a number of incidents in
which prisoners were subjected to a
“water torture” in
order to prompt confessions to various crimes. On the
morning trial was to begin, Floyd Baker’s counsel informed
the court and his
co-defendants that Baker intended
to admit the government’s allegations were
true but would argue that he did not have the “state of
mind” required for
criminal liability. Lee, Glover and
Parker each intended to defend on the
ground that they
did not participate in any torture incidents and were
unaware that any such incidents were taking place.
Counsel for the other
defendants immediately moved
for severance. The district court deferred a
ruling on
these motions pending some clarification of exactly
what Baker’s
defense and testimony would be.
At trial, Baker’s defense as developed by his
counsel
and his testimony rested on two points. The first was
that he
actively participated in only a single torture
episode, and then only because
ordered to do so by his
superiors—a “Nuremberg defense.” The second was
that while he believed the torture of prisoners immoral,
he did not at the
time think it was illegal. In
154. Brief of Petitioner-Appellee at 8, United
States v. Lee, No. 83-2675 (5th Cir. Nov.
9, 1984).
155. Id. at 10.
156. Id. at 12.
157. The sole issue was whether the trial judge abused his
discretion in denying a
severance. Lee, 744 F.2d at 1124.
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the course
of Baker’s testimony, he identified Lee as a
participant in the torture of
several prisoners. Seven
other witnesses also connected Lee with various
torture
incidents. At the close of the evidence, the district
judge
severed Baker, and put the case of the remaining
defendants to the jury. Lee
was convicted on
three counts.158
Lee’s conviction was affirmed on appeal,
and all the defendants
received substantial prison sentences.159 United
States District
Judge James DeAnda’s comments at sentencing were telling. He
told
the former Sheriff that he had allowed law enforcement to fall into
“the hands of a bunch of thugs. The operation down there would embarrass
the
dictator of a country.”160
V. CONCLUSION
One can only hope Judge DeAnda
was right, and that even a
dictator would find water torture an
embarrassment. Certainly, the
United States has made it clear, in its courts,
both civil and military,
and before the national legislature, that water
torture, by whatever
name it is known, is indeed torture, that its infliction
does indeed justify
severe punishment, and that it is unacceptable conduct by
a government
or its representatives.
The conclusion of Jay Bybee and John
Yoo was that the legal
definition of torture:
covers only extreme acts.
Severe pain is generally of
the kind difficult for the victim to endure.
Where the
pain is physical, it must be of an intensity akin to that
158.
Id. at 1125. See also Morris v. State, 697 S.W.2d 687, 689 (Tex. Ct. App. 1985)
(discussing another allegation of water torture by Sheriff Parker).
159.
Former Sheriff Parker, the ringleader, was sentenced to the maximum of ten years
plus a $12,000 fine. Ex-Sheriff Given Ten Year Sentence, N.Y. TIMES, Oct. 27,
1983, at
A11.
160. Id. (emphasis added). Water torture is mentioned in an
American Court in another
context. In his concurring opinion in Robinson v.
California, 370 U.S. 660 (1962), Justice
Douglas discusses why he believes it
is cruel and unusual punishment to treat a drug addict
as a criminal. Id. at
668. He states that “terror and punishment linger on as a means of
dealing
with some diseases” and then quotes a statement that “an entire chamber of
horrors
constitut[ed] the early treatment of mental illness. The latter
includes a wide assortment of
shock techniques, such as the ‘water cures’
(dousing, ducking and near drowning).” Id. at
669. His proposition is
particularly interesting in light of the Bybee Memo’s internal
proposition
that the United States limited by reservation its accession to the Convention
Against Torture to acts which constituted cruel and unusual punishment under the
U.S.
Constitution. See supra note 6.
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HISTORY OF WATER TORTURE IN U.S. COURTS 505
which accompanies serious
physical injury such as
death or organ failure. Severe mental pain requires
suffering not just at the moment of infliction but it
also requires lasting
psychological harm, such as seen
in mental disorders like posttraumatic
stress disorder.
161
Their definition162 may be subject to challenge as a
matter of law.
161. See Bybee, supra note 6, at 46.
162. Prof. Yoo later
explained that:
While the definition of torture in the August 2002 memo is
narrow, that was
Congress' choice. When the Senate approved the U.N.
Convention Against
Torture in 1994, it stated its understanding of torture as
an act “specifically
intended to inflict severe physical or mental pain or
suffering.” The Senate
defined mental pain and suffering as “prolonged mental
harm'” caused by
threats of severe physical harm or death to a detainee or
third person, the
administration of mind-altering drugs or other procedures
“calculated to disrupt
profoundly the senses or the personality.” Congress
adopted this definition in a
1994 law criminalizing torture committed abroad.
The Senate also made clear that it believed the treaty’s requirement that
nations
undertake to prevent “cruel, inhuman or degrading treatment or
punishment”
was too vague. The Senate declared its understanding that the
United States
would follow only the Constitution's prohibition of cruel and
unusual
punishment.
The Senate and Congress’s decisions provided the basis
for the Justice
Department’s definition of torture:
“Physical pain
amounting to torture must be equivalent in intensity
to the pain accompanying
serious physical injury, such as organ
failure, impairment of bodily
function, or even death. For purely
mental pain or suffering to amount to
torture (under U.S. law), it
must result in significant psychological harm of
significant duration,
e.g., lasting for months or even years. . . . We
conclude that the
statute, taken as a whole, makes plain that it prohibits
only extreme
acts.”
Under this definition, interrogation methods that go
beyond polite questioning
but fall short of torture could include shouted
questions, reduced sleep, stress
positions (like standing for long periods of
time), and isolation from other
prisoners. The purpose of these techniques is
not to inflict pain or harm, but
simply to disorient.
Yoo, supra note 5.
He goes on to explain that:
The department issued a new memo that superseded
the August 2002 memo.
Among other things, the new memo withdrew the statement
that only pain
equivalent to such harm as serious physical injury or organ
failure constitutes
torture and said, instead, that torture may consist of
acts that fall short of
provoking excruciating and agonizing pain.
Although some have called this a repudiation, the Justice Department's new
opinion still generally relies on Congress’ restrictive reasoning on what
constitutes torture. Among other things, it reiterates that there is a
difference
between “cruel, inhuman and degrading treatment'” and torture B a
distinction
that many critics of the administration have ignored or
misunderstood.
Id. Finally, Prof. Yoo, attempts to separate the Memo from
abuses at Abu Ghraib prison in
Iraq. In doing so, he says that:
those
abuses had nothing to do with the memos defining torture B which did not
discuss the pros and cons of any interrogation tactic B nor the decision to deny
POW protections to Al-Qaida and the Taliban. Gonzales, among others, has
made
clear that the administration never ordered the torture of any prisoner.
Id.
What he does not say, is that Newsweek was in any fashion incorrect when it said
that his
WALLACH 4/3/2007 12:09:53 PM
506 COLUMBIA JOURNAL OF
TRANSNATIONAL LAW [45:468
But whether it is technically valid or not, can
there be any question if
we listen to the victims who speak above, and to the
judges who convicted
their torturers, that water torture, the repetitive
artificial
drowning and revival of another human being, falls within their
Memo’s parameters? Can there be any doubt that it is an extreme
act? Can
there be any doubt that it causes severe physical and lasting
psychological
harm? Can there be any doubt that it is torture?
If we remember what we said
and did when our military personnel
were victims, if we remember our response
when they were
perpetrators, how can our government possibly opine that the
use of
water torture is within the bounds of law? To do so is beneath
contempt;
it is beyond redemption; and it is a repudiation of the rule of
law that in our origins was the core principle of governance which
distinguished our nation from the crowned dictatorships of the European
continent.
Let us remember the past to avoid its endless repetition.163
memo “was prompted by CIA questions about what to do with a top Qaeda captive .
. . who
had turned uncooperative,” that “it was drafted after White House
meetings” which
“discussed specific interrogation techniques,” and that,
“[a]mong the methods they found
acceptable: ‘water-boarding,’ or dripping
water into a wet cloth over a suspect’s face, which
can feel like drowning.”
Hirsh et al., supra note 7. It would be interesting if he would do so.
163.
See GEORGE SANTAYA, THE LIFE OF REASON OR THE PHASES OF HUMAN PROGRESS
284
(2d ed. 1932) (“Progress, far from consisting in change, depends on
retentiveness. . . .
Those who cannot remember the past are condemned to
repeat it.”); GEORGE ORWELL, 1984,
at 35 (2d ed. 1977) (“Who controls the
past controls the future: who controls the present
controls the past.”).