JURIST Contributing Editor Jeffrey F. Addicott of St. Mary’s University School of Law discusses the assertion that waterboarding is torture…

With the 2016 campaign for president heating up, many old issues are being revisited to include the false contention that “waterboarding” is torture. While some may claim, for example, that Republican presidential candidate Donald J. Trump is embracing a new and ugly pragmatism associated with fighting those that engage in terrorism (Trump approves of waterboarding), the fact is that the US has never engaged in torture and it is unlikely that any future Administration will ever slip into a “Star Chamber” mentality where torture is tolerated. So, once again the record needs to be set straight—waterboarding as the US practiced for a brief period after 9/11 is not torture. Torture is torture. So why all the confusion?

Allegations of torture roll off the tongue with great ease and have been used as a political piñata by a variety of individuals and interest groups often associated with fixed political agendas. Recognizing that not every alleged incident of mistreatment necessarily satisfies the legal definition of torture, it is imperative that one views such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent.

In fact, as a law professor specializing in national security law, I was asked in May 2009 to testify before the United States Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts. The Senate hearing headed by the political party that then controlled the Senate majority (Democrats) was entitled: “What Went Wrong: Torture and the Office of the Legal Counsel in the Bush Administration.” In short, this was not a fact finding mission by the Senate—their minds were already made up! To be sure, the majority on the Senate panel did not take kindly to my legal opinion that waterboarding used against three high value detainees was not severe enough to rise to rise to the level of torture.

The fact is that we have not and will not engage in torture in violation of the 1984 United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention).

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…when such pain or suffering is inflicted by or at the instigation of…a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Obviously, as the next Administration deals with the issue of lawful interrogation techniques, it is important to understand where we have been on the matter of interrogation. In short, interrogation techniques—to include waterboarding—that were approved by President Bush’s Department of Justice for use by the CIA did not constitute torture. (This is not to say that individuals in their individual capacity have not violated directives and even the law on “torture”).

None of the techniques employed by the US have ever involved unlawful interrogation practices—then or now. Existing international case law such as Ireland vs. UK sets extremely high bars for what would constitute torture. Even the worst of the interrogation practices, i.e., waterboarding, was clearly not torture when measured against Ireland.

So herein is a quick overview. In 2002, the Office of the Legal Counsel (OLC), Department of Justice, issued two legal memorandums under the signature Jay S. Bybee, Assistant Attorney General, OLC, regarding the interrogation of certain high value detainees captured in the wake of 9/11. Noting that the techniques produced no prolonged mental harm that would violate the Torture Convention, the classified Bybee memo authorized the CIA to use 10 of the 12 proposed enhanced interrogation techniques (EIT). Each technique was carefully described in the legal memorandum, along with restrictions and safeguards which required, for instance, the presence of psychologists and medical personnel along with the interrogator. The most severe techniques was:

Waterboard: The subject is restrained on a bench with his feet elevated above his head. His head is immobilized and an interrogator places a cloth over his mouth and nose while pouring water onto a cloth. Airflow is restricted for 20 to 40 seconds; the technique produces the sensation of drowning and suffocation.

Accordingly, from 2002-2005 top legal advisors concluded that the US could legitimately engage in interrogation practices that did not rise to the level of torture. By late 2005, however, the domestic law quickly changed (with the exception of US military personnel in training, no one has been waterboarded since 2005) and continued to the point of absurdity where interrogators today may essentially not question a detainee without the express permission of the detainee. In fact, when I visited GITMO in 2009, I discovered to my great disdain that it was forbidden for an American soldier who was not a Muslim to hand any religious object to a detainee as this would be “degrading” and in violation of Common Article 3! In short, our interrogation programs are now driven by “political correctness.”

Indeed, with the Supreme Court’s Hamdan case and the resulting 2006 Military Commissions Act which applied the provisions of Common Article 3 of the Geneva Conventions to all detainees, America has essentially self-imposed a layer of protection that has swung the pendulum far away from any technique associated with physical pressure points. Executive Order 13441 issued by President Obama in January 2009, now requires all US agencies (to include the CIA) to comply with the new Bush-era Army Field Manual on interrogations (FM 2-22.3).

Finally, the number one terror threat to America emanates from the disciples of radical Islam. Hopefully all rational Americans understand that the best time to stop radical Islamic jihadists is not at the airport (9/11), the marathon race (2013 Boston Marathon attack), or the office Christmas party (2015 San Bernardino). Actionable intelligence must be obtained before the attack occurs. This intelligence can come in many ways to include “interrogation.”

One matter is fundamentally certain: if al-Qa’eda, ISIS, and other radical Islamic jihadist groups are to be kept at bay, the US must rely on detainee interrogation as an integral antiterrorist tool. The need for the interrogator to get information to protect the lives of innocents is a legitimate and perfectly lawful exercise. Even President Obama understands this truism. His 2009 executive order does allow federal agencies to employ non-coercive techniques and established a High-Value Detainee Interrogation Group (HIG), composed of experienced interrogators and support personnel from law enforcement, the DOD, and the intelligence community.

Hopefully, the next president of the US will surround himself with legal and policy advisors that will provide him with the full range of lawful actions so that America can continue to function under our values while keeping our citizens safe. In turn, they will also keep in their back pocket the long standing common law doctrine of “necessity.”

Lt. Colonel (US Army, ret.) Jeffrey F. Addicott is a JURIST 2016 Contributing Editor for Terrorism Law. He is a Professor of Law and the Director of the Center for Terrorism Law at St. Mary’s University School of Law, San Antonio, Texas. Professor Addicott holds a Doctor of Juridical Science (SJD) and Master of Laws (LLM) from the University of Virginia School of Law. He also received a Master of Laws (LLM) from the Army Judge Advocate General’s School, where he was the Deputy Director of the International & Operational Law Division, and a Juris Doctor (JD) from the University of Alabama School of Law.

Suggested Citation: Jeffrey F. Addicott, Torture…and Waterboarding—Here We Go Again, JURIST – Academic Commentary, Apr. 4, 2016, http://jurist.org/forum/2016/04/jeffrey-addicott-waterboarding-torture.php.