I have long argued in my column as well as numerous blog postings that our country is legally bound to prosecute people responsible for ordering torture during the Bush Administration. There is no question that water boarding is torture as recognized by President Obama, Attorney General Holder, the United Nations and virtually every expert in this field. However, while you may want to try to rewrite legal precedent (as did John Yoo and Jay Bybee in their infamous Torture Memos), you should not try to rewrite history. That is what former Vice President Dick Cheney appears to be doing this month. He told Chuck Todd on Sunday that we never prosecuted anyone for water boarding — an assertion that I and others have repeatedly raised over the years. The statement is simply false and adds historical revisionism to legal revisionism in our sordid foray into torture.
On NBC’s “Meet the Press” this last Sunday, Todd asked: “When you say waterboarding is not torture then why did we prosecute Japanese soldiers?”
Cheney responded:
“Not for waterboarding. They did an awful lot of other stuff. To draw some kind of moral equivalent between waterboarding judged by our Justice Department not to be torture and what the Japanese did with the Bataan Death March, with slaughter of thousands of Americans, with the rape of Nanking and all of the other crimes they committed, that’s an outrage. It’s a really cheap shot, Chuck, to even try to draw a parallel between the Japanese who were prosecuted for war crimes after World War II and what we did with waterboarding three individuals — all of whom are guilty and participated in the 9/11 attacks.”
In fact, we did prosecute. Indeed, the International Military Tribunal for the Far East convicted and ultimately executed Japanese war criminals Akira Muto and Iwane Matsui for atrocities at Nanking. This included water boarding prisoner, though it was called “the water treatment” where “the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness.”
Moreover, in 1947, we prosecuted Yukio Asano for the following these specific acts:
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.
Asanao was sentenced to 15 years confinement at hard labor.
As noted by the Washington Post, First Lt. Seitara Hata, Sgt. Major Takeo Kita and Sgt. Hideji Nakamura faced similar charges. As noted by the Post, the testimony included that of Cpt. William Arno Bluehe who said “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.”
Then there was Thomas B. Armitage:
“[We] were strapped to stretchers and warm water poured down our nostrils until we were about ready to pass out. [The Japanese] 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. [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. Then I was taken into the hallway of the barracks. Both of the Japanese still insisting I was guilty and urging me to confess.”
Likewise, during the Vietnam War, an American soldier was court-martialed for water boarding a prisoner.
Ironically, while the Senate Report works hard to exonerate the Senators themselves from their past knowledge as well as Bush and Cheney, Cheney to his credit has admitted that both he and Bush were fully informed of the use of program.
The cost of our torture program — and the failure to prosecute a single official for it (or the destruction of evidence and false statements revealed in its aftermath) will continue to cost this country dearly. Countries like Iran, North Korea, and China have already cited our use of water boarding to defend against their own abuses. When our soldiers or citizens are water boarded in the future, countries will play back Cheney’s words and others to say that such abuse is not torture. When we demand that officials in other countries be prosecuted for torture, they will mock our hypocrisy and own history. As much as history may be an inconvenient contradiction for people like Cheney, it will remain unrevised and unvarnished. We have prosecuted both Americans and foreigners for water boarding and we were right to do so. That is not the history that we should work to forget.
rafflaw said …
Aridog, without following the rule of law, what do we have?
I’ll agree with that in general, however to raise the issue a dozen years latter is spurious to the point in question. I agree that torture is wrong, and as I said, I naively believe that we’ve set that practice aside. THAT is what is important to me, not digging up a “cold case” to shriek about…aka the Senate report….a very incomplete compilation at best.
The question is simple enough (to me): Have we actually ceased torture? Who can answer that question?
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/12/10/did-the-senate-just-open-the-u-s-up-to-icc-prosecution/
Perhaps the US won’t prosecute. Doesn’t mean someone else won’t. Did the Senate just open the US up to ICC prosecution?
Why didn’t the Senate report call out Bill Clinton for waterboarding? Maybe because Dems are a protected class? Or the authors of the report are hypocrites. Or both.
Rendition didn’t start under Bush 43. President Bill Clinton first ramped up the practice that previous presidents had used sparingly. Two left of center sites, the American Civil Liberties Union and The Brookings Institution confirmed this. As Brookings disclosed:
“Beginning in 1995, President Bill Clinton’s administration turned up the speed with a full-fledged program to use rendition to disrupt terrorism plotting abroad. According to former director of central intelligence George J. Tenet, about 70 renditions were carried out before Sept. 11, 2001, most of them during the Clinton years.”
Little has been said about the use of waterboarding prior to Bush 43, but I don’t believe the practice originated with him.
So come on, put that on Clinton, and on Carter.
Fed. Rule of Evidence Rule 801d 2 Statements of party opponents are admissions and the statements of an agent of a party opponent is an admission which is admissible and falls on the party’s head. Here Cheney says that they were all fully informed. If someone down the line admits to waterboarding then Cheney is guilty. Death penalty is appropriate — same as you inflicted on those Japanese waterboarders for crimes in WWII.
I am in Germany studying up on these matters.
If you have any lawyers on this blog can they please chime in on these issues. Nuremberg has a courthouse. We need some more trials according t Merkel.
Aridog,
without following the rule of law, what do we have? McCain’s opinion is not the only reason to agree with what the report says, but he and other former POW’s who were mistreated have a special reason to hate and respond in kind. To his credit, he agrees that the rule of law is important and we should always be above our enemies.
Paul,
As a Catholic, I know the Church’s stance on sin. However, to claim now that Cheney and Bush and anyone else involved in the use of, authorization of and refusal to prosecute those who tortured or authorized torture, did not know it was torture is ignoring history and maybe another sin.
rafflaw – if you have a theologian who says something is not a sin, is it not a sin? Actually, the sin is in the mind of the sinner.
So, if the SC says something is not a crime cannot we not believe it is not a crime?
http://youtu.be/cdOZu33AtuI
Jon Stewart rips Çheney and torture apologists.
@Paul C. Schulte
I hadn’t realized what a tough guy you really are — you condemn McCain because “[h]e broke under torture”?
In order to ride that moral high horse, I would think one would need to have had a similar experience.
So, I’m very sorry to hear that you were tortured for years while a prisoner of war. I’m also grateful that you didn’t “break”.
Now that I know your history, I no longer question your judgment as to what is torture and what is not.
Thank you for your service.
Porkchop – McCain has skin in the game. If he admits that torture works he has to admit that he gave up actionable intelligence. I do not condemn him for breaking under torture, we all have a point. Just as we all have a point where we will kill, even the gentlest.
Nick Spinelli … vis a vis the “report”…on that we can agree…it was garbage. I’ve got dogs who drop better in the back yard. I’d be amazed to hear how that “report” has changed anything, other than for the worse. Just another example of the cross armed finger pointing salute.
Nick,
Thanks for letting me know that I have a good heart, but there is a lot you dislike about me. Nice. The question or hope that you can have an intellectually honest discussion with me is an insult. Do you realize that?
The only rules we have are the current laws and treaties that have been accepted and confirmed by our government. If you want to change the law to say torture is not torture if we do it, the Republicans have the House and Senate under their control. Give it a try. Your claim that that this is a new war with an enemy that does not play by the rules is false. The Nazi’s wore uniforms, but many did not play by the “rules”. In the Vietnam War, many of the participants wore the clothing of the peasants and did not follow the rules. In Iraq and Afghanistan, many of our enemies did not wear uniforms and did not follow the rules. It is nothing new that our enemies aren’t always playing by the rules. However, our laws require us to play by the rules. When we don’t there are consequences. Read McCain’s speech agreeing with the Senate Report. He has skin in the game. The rule of law must be followed. But you can’t change the rules after the game has been played.
Paul C Schute said…
Henry Kissinger was on Meet the Press until the day he died.
Yes. More the pity. I know Vietnamese soldiers who think he was the worst man to ever walk the planet. And they still express that opinion today.
Ari, The utter hypocrisy of Feinstein, who signed off on this, and now plays Captain Renault, is what galls me.
rafflaw … I’d like more than one experienced opinion. I respect McCain, but don’t find him to be the sole authority. Which is why I mentioned Col Rowe. In general, I agree that “torture” should be beneath us, but then I’ve not experienced it first hand. I’d not advocate prosecution of one administration’s people when it is not a new phenomena. I’d be quite happy if we just moved on and did better for ourselves. I do not have much use for negative retrospection, since it solves little that is current or potential down the road. Locking up burglars does not stop burglaries…to be trite about it. Never be surprised at what current & future administrations can devise as excusing their behavior, while condemning that of the previous.
Maybe I was in and part of “the machine” for too long. In that time I’ve seen enough excuses and rationalizations to choke a hippo.
The reports of Henry Kissinger’s death are greatly exaggerated.
Ditto DBQ.
DBQ, You’re standing in a LOOONG line on that.
DBQ, maybe you should admonish Professor Turley for writing this blog post because it might bore poor DBQ
Professor Turley’s posts are always interesting and could provide a good starting point for discussions.
Unfortunately, we end up with repetitive posts and back and forth talking points without discussion and frankly….you bore me.
raff, I was just quoting your presumptuous “must.” I hope I can have an intellectually honest discourse w/ you. You have a good heart, and that excuses much of what I dislike about you. We need a new Geneva Convention. The old war rules to not apply to this new war, that will be w/ us for a LONG time. Our enemy, who have declared war on us, have no country. Although, ISIS may change that soon. They wear no uniform. They are as depraved as any enemy in history, yesterdays news from Pakistan being a recent example. One thing I am certain will end when Obama leaves. That is the incredibly stupid assertion these Islamic jihadists are criminals, to be granted due process and tried in Federal Court.
rafflaw…I’m of the opinion that prosecution of one administration’s people would not advance our morality. The current administration is no better, nor were long past previous ones. To me, what is important is that we effect change and don’t repeat past errors. I am, perhaps naively, confident that has occurred. Some things just are not in our best interest to prosecute, stringent application of the law or otherwise, because all we do is encourage our enemies. We only got away with the Nuremberg trials because we won. As yet, today, we have NOT won.
My refugee neighbors would consider water boarding almost a benign exercise compared to what they and their families endured. As I’ve said previously, I am biased and conflicted on the subject…so I cannot opine on the subject per se. No amount of legal fal-de-ral will relieve that.
Nick,
I MUST listen to you? As I have stated earlier, anyone who has broken the law should be prosecuted. And thanks for reminding me that this is war, not chess. Since you label it as war, there are rules of war that we must follow. But of course, Dick Cheney and you don’t agree. We are supposed to be better than our enemies, no matter how egregious they are. But Dick Cheney doesn’t think so. Is he still getting paid by companies profiting from this so-called war?
rafflaw – you win by being better on the battlefield than your enemy, not better morally or spiritually.
@Paul C. Schulte
There was more than one question in my 11:36 post. Yes, to which question?
If your “Yes” was in response to my last question, could you please tell me what technique or combination you would find to be torture or otherwise unacceptable?
A further question: If one engages in actual torture, but then lightens up by merely waterboarding, isn’t the waterboarding really just a continuation of the previous abuse? Presumably the interrogator could return to the bad stuff if the waterboarding does not work out, so the prospect of harsher coercion is still there. That almost sounds like a “good cop, bad cop” approach to interrogation, with waterboarding as the “good cop.”
Porkchop – even though you posed multi-pronged questions, my answer of Yes, fits them all.