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.
So that this thread does not contain the same old stuff said by the same old commenters, here is something that will hopefully provoke some discussion. Yes, torture is illegal. Generally speaking it should be prosecuted. Generally. And those people who approved the use of torture on a “wholesale basis” (that is a relative term) are far more deserving of prosecution than the persons on the ground who were following orders. (Particularly at fault are legal professionals who use “tortured” logic to reach unrealistic legal conclusions.) But that fact does not absolve those on the ground from criminal liability, unless they relied “in good faith” on the legal opinions. (Having dealt with the concept of good faith reliance on professional advice in the tax arena for many years, my view is that it is difficult to use this defense.)
Similarly, disclosing government secrets is illegal. Generally speaking it should be prosecuted. Generally.
There is something called prosecutorial discretion. I can envision a situation where someone, acting in good faith, engages in torture in the heat of the moment in an effort to get information. Such a person might get a pass based on prosecutorial discretion. Based on my (admittedly limited) review of what has been disclosed recently, my view is that the use of prosecutorial discretion to not prosecute EVERYONE is a mistake. A big mistake. Figuring out who to prosecute is a hard work. I have my own sense of who I would prosecute if I were the prosecutor, but I have not reviewed everything. So I will hold my tongue for the moment on that point.
I can also envision a situation where someone, acting in good faith, discloses government secrets in the belief that such a disclosure is necessary. Such a person might get a pass based on prosecutorial discretion. Taking Mr. Snowden, for example, I have very mixed views. Frankly, I’d like to have more information before deciding whether to exercise prosecutorial discretion to not prosecute him.
I want the person who is considering whether to engage in torture and the person who is considering whether to disclose government secrets to be really worried that they may be prosecuted. That will (hopefully) force them avoid torturing/disclosing gratuitously and/or unnecessarily. If they make a bad choice, they get prosecuted.
Please don’t say that I’m equating Mr. Cheney (or others involved in the “torture program,” to use a term that some will find provocative) with Mr. Snowden. I’m not doing that. When it come to the exercise of prosecutorial discretion, details matter. Details will differ from situation to situation, even from person to person in a particular situation. And prosecutorial discretion should be used wisely, lest the prosecutor send a signal that people don’t need to obey the law.
Have to go back to work for a good long while now. I’m wondering if I will come back to the same old comments by the same old people when I return.
Aridog, In a way only a Chicago politician could devise, we probably have ceased torture. You see, in order to avoid having to interrogate these special flowers, and not add to the Guantanamo population, Obama MURDERS people who MIGHT be terrorists w/ drones. It is a policy that would shock Orwell. 400 drone strikes and over a thousand casualties. How many people have we water boarded? As you know, the problem w/ murdering alleged terrorists, among them US citizens, is we have not valuable intelligence gathered from terrorists, making us much more vulnerable.
Here’s what anyone here knows. If, God forbid, one of these hand wringers here have a child, grandchild, massacred like those kids in Pakistan, they will be calling for castration and cutting off fingers. In 2001 I doubt few of the hand wringers here cared how we got info about future attacks. A US school gets hit. a dirty bomb is ticking in a US city, we will all look @ this thread and laugh @ how naïve and ludicrous it is.
Very good question Aridog up at 12:53–that is all I keep thinking in light of this–do we still torture people?
Another question, what have we done in the meantime to fix things? Despite the billions (trillions???), I don’t think we’ll be running low on terrorists any time soon. And now they have our good hardware to use. Might not be boxcutters next time. Our “deep state” and self-serving politicians are placing us in ever more precarious of situations. Soon, the theatre of hostilities will shift. It will be interesting to see what happens to these ideals if a Chinese naval ship sinks a Filipino or Japanese ship in disputed waters–considering we have a war guarantee with both. Will torture be an option then?
Diane Feinstein is not a court, THANK GOD!
An attorney should know that only a court can be dispositive in a law being broken. This is a nation of laws, not men. Until there is a court ruling that a law has been broken, the word “alleged” should be used.
allude to a NEW Geneva Convention.
rafflaw, Please show me where in your 12:32p response, to my call for a new Geneva Convention, where you mention, or even allude to, the Geneva Convention. And, there is a flopping rule in the NBA, w/ escalating fines.
Guess Conservatives aren’t the only ones who revise history, as some accuse them of and are silent on the revisions Liberals have made.
Book Discussion on 48 Liberal Lies About American History:
http://www.c-span.org/video/?281756-1/book-discussion-48-liberal-lies-american-history
Paul,
Other alleged violations by other nations is irrelevant to the U.S. following our law. As to your continued reference to sin, has the Supreme Court overturned any of the past prosecutions for waterboarding?
rafflaw – the War Crimes never went to the SC, however, at least one justice felt they would have never survived.
So Nick,
Now you are insulting me again?! Doubling up on an insult.
I do realize that the Geneva convention was a multinational convention that was ratified by the US. Note the ratification part of it. No misunderstanding on my part. The unfortunate part is you still try to hide from a violation of the law
Michael Haz:
Think you hit the nail on the head – from torture to warrantless spying this path could lead to previous administrations and previous Congresses.
The problem is there are really two choices:
a “Leahy Truth Commission” -or- mass criminal prosecution.
Congress and the former Bush officials turned down the Leahy Truth Commission so that only leaves criminal prosecution. Bet they will regret that choice when the special prosecutor is appointed.
This is really out of Obama’s hands now. Any plaintiff that was tortured can petition a federal court to appoint a special prosecutor or appoint a grand jury to appoint a special prosecutor.
rafflaw, I’m honest how I express myself. You are often intellectually dishonest. That’s why I expressed my hope for otherwise. One of the problems w/ faux civility is frank and honest exchanges are seen as uncivil. I call a spade a spade. Now, can we dispense w/ your hurt feelings and talk like men? Or, do we need to form some hurt feelings support group prior to discussing this? Because the ostensibly substantive part of your comment, in the 2nd paragraph, shows a misunderstanding of what I clearly stated, or intellectual dishonesty. I am not talking about a unilateral drawing of new rules. You do understand the Geneva Convention was a MULTINATIONAL convention drawing up rules of war for ALL nations? Your boilerplate, “The Republicans have the House and Senate under their control. give it a try” shows one of 2 things. Either intellectual dishonesty of a lack of understanding of what I clearly stated. Additionally, if you cannot see the difference between an asymmetrical war like the one in which we are currently engaged, and prior wars, then further discussion would be a waste of my time.
Excerpt above @ 1:19 from NYT. Tortured by psychologists and doctors.
http://www.nytimes.com/2014/12/17/opinion/tortured-by-psychologists-and-doctors.html?_r=1
“The report also cites other health professionals who participated, including unidentified C.I.A. medical officers or doctors who cleared prisoners for interrogation and played a central role in deciding whether to continue or adjust procedures when a prisoner developed severe medical problems.
The American Medical Association said that the participation of doctors in torture and coercive interrogation “is a violation of core ethical values.” The president of the American Psychological Association called torture “morally reprehensible” and said the application of “learned helplessness” on detainees was a “perversion of psychological science.” In response to complaints that the A.P.A.’s ethics code was modified to allow such interrogations, it has commissioned an independent review into whether it colluded with the government’s use of torture.
Health care professionals who engaged in or abetted torture should have their professional licenses revoked and, depending on the degree of culpability, be prosecuted criminally. None of this seems likely for Mr. Mitchell or Mr. Jessen. (A complaint filed against Mr. Mitchell to revoke his license to practice psychology failed.) The best we can hope for is that laying bare the record will deter future unethical behavior by health professionals.
To ensure that result, Congress ought to enact legislation or the president ought to issue executive orders that explicitly prohibits all forms of torture and bars health professionals from direct involvement in interrogations. If Republicans feel the Senate report was biased, they should create a federal commission to investigate the role health professionals played in this barbaric undertaking.”
Cheney lied? What a shock. This man and the rest of the Bush administration involved in ordering torture should be prosecuted
Why not Bill Clinton? Here again is the quote from an article in the left of center Brookings Institute online site:
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.
You can read the entire article here.
Professor Turley: When you said this above…..
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
….did you not know that waterboarding was also done during the Clinton administration? Or is there an reason not explained in your post why you believe the Clinton administration should be exempted from your statement?
War is hell.
The killing, maiming, torture and near-torture damage both opponents.
The only thing worse is what they other side will do to you if you don’t fight back.
And war is hell whether you prosecute it hard and fast, or try to be nice and drip drip drip the war.
But hell you’ll get.
The only error here is thinking you can escape hell and try to make war ‘civilized,’ with lawyers and rules and courts.
Nope.
Inga – when the UN gets the French to prosecute the rapists who were in their peace-keeping forces, then we can talk about torture. The UN has a poor record in this area.
http://www.nst.com.my/node/63306
Prosecute the tortures. Two top UN human rights officials have demanded that the US government prosecute all high level officials involved in the CIA’s torture program.
http://takingnote.blogs.nytimes.com/2014/12/15/dick-cheney-makes-a-great-case-for-prosecuting-torturers/?_r=0
Dick Cheney makes a great case for prosecuting torturers.
I remember thinking at the time how great it was to have someone like Cheney in office. One of the strongest V.P.’s we’ve ever had. Could you imagine the community organizer with sideshow Joe being in charge right after 9/11?
” Could you imagine the community organizer with sideshow Joe being in charge right after 9/11?”
We might not have gone off on the tangent of Iraq which seems likely to have left us much stronger militarily and economically. Using more effective interrogation methods than torture we might have derived more and more timely intelligence which would have put us ahead there too.
Can you imagine how much better we would be if instead of dropping a couple of trillion and maybe 4,000 lives and tying up 10 combat brigades in Iraq for years, we had focused on the real problem in Afghanistan and actually solved that problem? We can thank Cheney for the side show that wasted so much in Iraq, so many dollars, so many lives, so many tank treads and helicopter blades worn down by the sand – for nothing, absolutely nothing.
If we did not have truly irresponsible people guiding policy with the thought that we could take down 5 or 7 nations in about 5 years the world might be more stable and safer – even if the names of the tyrants would be different from the tyrants we have now.
Over all, it is hard to imagine how we could have done much worse, and easy to imagine many ways that we would have done much better.
But whats done is done. Now it is up to us to pick up the pieces. We have to pay the bills. We have to remember the dead. And we owe it to them to remember the bad choices and the leaders who took us there.
Inga – “Why do we lower ourselves to the standards of our enemies?”
Inga, please post some evidence where we decapitated someone we captured. Such false outrage.
Still waiting for this evidence from Inga.