According to many, waterboarding is an exquisite form of torture, in the same category as the thumbscrew, flogging, electric shocks or having to listen to James Carville.
Of the hundreds of suspected terrorists we have captured since 9-11, precisely three have been waterboarded by Central Intelligence Agency operatives who believed that their acts were legal because of written advice given by the Department of Justice in the so-called “torture memos.”
Now there is every sort of controversy surrounding these uses of waterboarding. The President, who ruled out prosecutions of the CIA interrogators, has specifically not ruled out possible prosecutions of the Bush-era Justice Department officials, and others, who were involved in approving the use of waterboarding.
House Speaker Nancy Pelosi is still at odds with the CIA, having denied — as the CIA contends — that she was briefed on the use of waterboarding on September 2, 2002. Pelosi said the CIA lies. CIA Director Leon Panetta says his agency told the truth.
But this is more than a high-stakes political game of “he said, she said.” It really matters what happened.
HUMAN EVENTS has written before about the likelihood that the 2002 Justice Department legal opinion advising that waterboarding — as the CIA did it — was legal. But there is another side to this issue.
Too many people who insist that the CIA tortured the infamous three are throwing out analogies insisting that the CIA waterboarding was no different from that of the Spanish Inquisition or war criminals of the 1940s.
Let us suspend politics for a moment. Just what are the facts of waterboarding? What did the CIA do? How does it compare to historical waterboarding that we regard as torture?
In an August 1, 2002 legal memorandum for John Rizzo, then General Counsel of the CIA, Assistant Attorney General Jay Bybee described waterboarding as one of the 10 “techniques” used to retrieve information from Abu Zubaydah, one of Osama bin Laden’s confidants. According to the report, Zubaydah withheld critical information regarding “terrorist networks in the United States or in Saudi Arabia” and intelligence “regarding plans to conduct attacks within the United States or against our interests overseas.” The waterboarding procedure used on Zubaydah is detailed in the memorandum as follows:
“The individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application. […] We also understand that a medical expert with SERE experience will be present throughout this phase and that the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm to Zubaydah.”
It is safe to say that the past iterations of waterboarding peppered throughout history — from Iberia to Holland to Cambodia — are not uniform and are notably more cruel than what terrorist prisoners, such as Zubaydah, and a few brazen (and self-motivated) reporters have been subjected to since 9-11.
In light of the 2005 amendment to the Defense Appropriations bill which — though unclear — inarguably made waterboarding illegal, basic historical analysis can hopefully trace the evolution of waterboarding and give an answer to our basic question.
In response to the pre-2005 amendment definition of torture, Bybee’s CIA memorandum advises that waterboarding cannot be classified as torture:
“The waterboarding, which inflicts no pain or actual harm whatsoever, does not, in our view inflict ‘severe pain or suffering.’ Even if one were to parse the statute more finely to attempt to treat ‘suffering’ as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”
This article is neither a legal analysis nor a comprehensive historical survey: It merely strives to explore the instances of waterboarding over time, to give a bit of contextual weight to the debate and illustrate that the waterboarding practiced during the Spanish Inquisition and beyond is not the same as the waterboarding described in Bybee’s memo.
To begin, in medieval Europe water and fire trials were considered separate from more brutal forms of physical torture. Unlike other forms of abuse — motivated by desperation to extract confessions or simply punish prisoners — water torture was primarily used to determine culpability rather than inflict pain. These “trials by ordeal” were not only intrinsic to pre-modern justice systems, but were inherently religious: innocence or guilt was believed to be in the judgment of God, as indicated by the results of these relatively less debilitating and scarring tests.
For instance, an early practice consisted of tying up the accused with rope and dunking him in water. If a knot along the rope far from the victim were wet after the dip, then the accused was deemed innocent. In another ritual, the accused was forced to submerge his hand in heated water. If, in three days, the blisters had begun to heal properly, then he was judged innocent. Such trials were banned by the Pope in 1215 due to corruption –victims began to pay bribes to have the water temperature lowered.
According to the Bybee memo: “A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.” Interestingly, the idea of exacting justice, not torturing, is traceable in the medieval rituals as well as in the U.S. government’s legal justification. This is where the similarities end.
Some of the earliest forms of what we now refer to as “waterboarding” are attributed to the practices carried out during the Spanish Inquisition — a rather broad historical designation roughly covering the period from 1478 to 1834. During the Inquisition, Spain’s population was radically expurgated and subjected to inventive and horrific forms of torture. Waterboarding was one: It was knowingly administered with little or no concern for the long-term wellbeing of the prisoner and to extract false confessions. The Spanish form of waterboarding was an extension of mass hysteria — there was no inkling of justice or intelligent motive involved.
In Spain, water torture was generally the second stage of the pre-interrogation intimidation process, following “squassation” — the dislocation of the joints using a strappado, or rope mechanism. Prisoners were forced to swallow great amounts of water and would then have their stomachs pressed — usually with a large wooden lid — causing them to vomit. Eventually prisoners would lose consciousness, only to be resuscitated and repeatedly subjected to this sick procedure for days at a time. Organ distension caused terrible pain — prisoners became bloated and felt as if their insides were aflame. In some instances salt water was used, leading to long-term injury and killing many of the prisoners.
This particular process seems foreign and detached from waterboarding. It may well be. In fact, few characteristics of our modern use of waterboarding were in place. Even those elements that are similar were carried out with significantly more disregard and gusto.
For example, a bostezo (iron bar) was used to hold the victim’s mouth open and toca (strips of linen) were forced down the victim’s throat by the rush of water, speeding up the choking process. More often than not, violently inserting the bostezo into the victim’s mouth would knock out teeth and the toca would emerge bloodied, having roughed the victim’s throat. According to some reports, in particularly brutal trials other much less appealing and hygienic fluids were substituted for water.
While the Spanish spread these crude methods, the Dutch perfected the art. In 1622 the Dutch used water torture to extract information from British merchants who were suspected of plotting to capture the Dutch headquarters in Amboyna, East Indies. Wrote one observer:
“They bound a cloth about his neck and face so close that little or no water could go by. That done, they poured the water softly upon his head until the cloth was full, up to the mouth and nostrils, and somewhat higher; so that he couldn’t draw breath, but he must withal suck-in the water…which being still continued to be poured in softly, forced all his inward parts, came out of his nose, eares and eyes, and often as it were stifling and choaking him, at length took away his breath, and brought him to a to a swounce or fainting.”
Clearly, the Dutch intended to extract a confession, fabricated or honest.
17th century Dutch writer Ernestus Eremundus Frisius provided an eerily detached account in The History of the Low Countries’ Disturbances, which aligns more closely with what is now recognized as “waterboarding”:
“There is a bench, which they call the wooden horse, made hollow like a trough, so as to contain a man lying on his back at full length […] with his feet much higher than his head. […] The torturer throws over his mouth and nostril a thin cloth, so that his is scarcely able to breathe thro’ them, and in the meanwhile a small stream of water like a thread, not drop by drop, falls from on high, upon the mouth of the person lying in this miserable condition, and so easily sinks down the thin cloth to the bottom of his throat, so that there is no possibility of breathing, his mouth being stopped with water and his nostrils with the cloth, so that the poor wretch is in the same agony as persons ready to die, and breathing out their last.”
Obviously, the intention was to cause severe torment, hanging on the brink of death.
In Europe, this period included a flowering of what might be referred to as “horribly enhanced interrogation techniques.” For instance, 16th century Italian lawyer Hippolytus de Marsiliis designed what has since been called “Chinese water torture” as a means of prompting confessions. For Europeans, forms of water trial — such as the one described by Frisius — are not comparable to “Chinese water torture”: While some forms of torture were designed to intimidate hostages and extract confessions and information, waterboarding was usually meant to abuse and terrify the prisoner. Generally it was administered rashly and cannot be described as accomplishing anything but flirting with homicide.
Another process known as the “water cure,” which is liberally conflated with other methods, consisted of forcing the prisoner to drink dangerous amounts of water by pouring it directly into the mouth and nostrils, leading to hyper-hydration and death in many cases. To escape death, prisoners would have to drink and inhale all of the water, or else they would be smothered by the deluge. In medieval France, 8 pints of water was the standard amount poured into the prisoner’s mouth. If his offense was especially deplorable this volume was doubled to 16 pints.
During the Thirty Years’ War (1618 to 48), German soldiers relished in administering what they called the “Swedish drink.” Perhaps the most storied examples of the water cure come from its mass use by the Khmer Rouge in Cambodia. On display at the Tuol Sleng Genocide Museum in Phnom Penh are the worn watering cans and wood slates. Of the millions murdered by the Khmer Rouge, we have no way of knowing how many were killed in this manner.
Certainly in the modern era — from the 1899 to 1901 occupation of the Philippines, to the abuse of le chiffron by French troops during the Algerian War (1954 to 62) to the tortures recorded by detainees in Turkey during the infamous prison expose of 1980 to 85 — water torture has been used as a cruel, sadistic and often fatal punishment accompanied by other manners of abuse.
In the Philippines, the water cure was more often than not used to kill off suspected and leftover insurrectos. In Algeria, salt water was substituted, killing the victim or causing long-term organ damage. In Turkey, scalding water was forcibly poured into the mouths of political prisoners.
These instances of torture and cruelty took years to uncover. Similarly, when the issue of torture arises in the U.S., a lengthy and indecisive definition process has often followed.
The common practice of locking prisoners in cubicles and showering them with ice-cold water was only abolished in 1882, 26 years after Simon Moore died in a New York state penitentiary after a half-hour session. (Whipping was legal in Delaware until 1935, and was administered legally in Maryland until as recently as 1961.)
Despite investigations, forms of water torture have also been condoned by earlier U.S. administrations. In 1902, President Theodore Roosevelt defended the “old Filipino method” used by American troops stationed in the Philippines during the Spanish-American War. He noted that the “water cure” did not “seriously damage” detainees. His permission, or tacit consent, during the War set somewhat of a precedent. Despite Roosevelt’s opinion, however, a few U.S. soldiers were court-martialed for administering the “water cure” during the war.
One of the most publicized cases of waterboarding is its use by the Japanese and Gestapo during World War II and the subsequent trials for “crimes against peace,”
“war crimes” and “crimes against humanity.” This instance illustrates the difference between waterboarding as administered by the CIA and waterboarding as administered by despotic regimes.
At the 1946 to 48 Tokyo War Crimes Tribunal, 7 Japanese officials were sentenced to death and 16 given life sentences. It is important to note, however, that waterboarding was far from the sole offense committed by these criminals. Even the method of waterboarding in these cases can be called into question as especially violent and heinous: Prisoners were beaten between sessions, forced to drink large amounts of water and then had their stomachs bashed. Waterboarding was just one knot in a string of concurrent abuses: It was not necessarily applied to extract information or confessions, but as a sort of sadistic activity.
Prisoners of war were subjected to atrocious human experimentation — often given lengthy operations without anesthesia — and deadly chemicals were tested on POWs. Prisoners were starved and cannibalized. Countless POWs died performing forced labor, and mass killings and individual executions were pervasive. Severe “waterboarding” was a mere notch on the belt with regard to the mistreatment of prisoners by the Japanese and Gestapo. It was used to excess, with little to no intent to extract information vital to national security.
The historical records of waterboarding shed light on the current debate.
“Waterboarding” has been used throughout history variously; under different circumstances and with different intentions. If anything, considering waterboarding in a historical context illustrates the opaqueness of its categorization and adds a grain of salt to the arguments of those who vehemently defend or deplore it. On the other hand, this analysis clarifies that the differences between the CIA’s use of waterboarding and its historical precedent are very different and share little in common.
The use of waterboarding most like the CIA’s was applied to military members — pilots and special operations troops — at the “SERE” (survival, evasion, resistance and escape) School. According to the Bybee memo of August 1, 2002, it was performed in accordance with the description of the CIA method set out above.
Also according to that memo, from 1992 to 2001, 26,829 students were subjected to waterboarding at the SERE School. The Bybee memo found that because so few of the students subjected to it — only 0.14% — reportedly suffered lasting psychological harm, (which was the test under the 2002 law for torture) waterboarding by that method wasn’t torture.
To equate the use of waterboarding by the CIA to extract information to its manipulation by rogue regimes to specifically cause lasting harm or death is unreasonable and not historically justifiable.