JURIST Contributing Editor Jeffrey F. Addicott of St. Mary’s University School of Law continues the discussion on the legality of waterboarding…

This article is written in response to certain scholars that published their views in a recent JURIST article concerning my views on “waterboarding,” also published in JURIST. Anticipating the opprobrium that my initial piece was sure to generate, I alluded to the fact that waterboarding was one of the “sacred cows” of the mainstream elites and any dissension to the foregone conclusion that waterboarding is torture arouses great emotional consternation to the agenda driven.

There is no question that the public brainwashing that “waterboarding is torture” is breathtaking and has a deep negative impact on our society. However, isn’t the legal community and the public at large better served by a logical discussion of the facts and applicable law rather than a tirade of desperate ad hominem attacks?

Obviously, given the limited parameters of the word count, I am not able to fully address each of the cherry-picked bait-and-switch points associated with their critiques (recall our domestic law and policy has now changed from what it was immediately following 9/11). I do, of course, fully grant that my critics are certainly entitled to their own opinions, but I do not share them. If they are serious about learning more on the topic, I would point them to read carefully my law several review articles, sworn testimony before the US Senate, and perhaps purchase a copy of my latest textbook: Terrorism Law: Materials, Cases, Comments (7th Edition, 2014). In addition, as the senior legal adviser of all the US Army Special Forces, I do have a working knowledge of the “real world” in terms of various interrogation techniques.

In the kindest light, perhaps part of the problem in understanding the issue of waterboarding is that key language in the Torture Convention is not particularly precise, opening the door to differing interpretations. In the Torture Convention, torture is defined as “severe pain or suffering, whether physical or mental.” The immediate question to the thoughtful scholar is this: what then constitutes “severe”? While some may think the Department of Justice approved waterboarding technique that was employed on three detainees as “severe,” I do not. In turn, I do not believe that the technique constituted the lower level of prohibited conduct called “ill-treatment.” It was a level of interrogation that was “stress and duress” at best. The average session lasted ten seconds, and a medical doctor was in place.

Furthermore, the term “waterboarding” itself is problematic. For example, the same term is used to describe techniques employed by the US military in SERE (search and rescue) courses and to describe the real torture employed by the Japanese in World War II. All use the same term “waterboarding,” but each varies in the technique. Holding someone’s head under water is not the same as putting water up the nostrils to cause an automatic response.

In any event, the real question is who gets to decide what is “severe”? Is it a law professor pontificating in a law review article? Is it an angry commentator on MSNBC? Is it a leftist political candidate? Of course, it is none of the above. In our Anglo-Saxon legal tradition it is a competent court that will define the language — the higher level of jurisprudence, the better.

Obviously, we can all pop up numerous cases that are associated with the term “waterboarding,” but where is the court case — state, federal, or international — that examined our DOJ approved techniques during the time frame in question (to include waterboarding) and ruled them torture? The answer, as my critics openly recognize in their own article, is that there is no such court case!

Thus, without direct case law on point, this means that advocates for one side or the other will marshal facts that best fit their side of the argument and present them for consideration. In this context, it is efficacious to explore similar case law and then extrapolate, although many will include memorandums, law review articles, and the like as well. This is what I have done. The difference is that I do not agree with the mainstream analysis. This “sin” I freely confess to.

As I previously indicated the number one international court in the world (and it is not a “right-wing” court) ruled in Ireland v. UK that the British interrogation techniques used against certain IRA detainees did not rise to the level of torture (ill-treatment is not torture). Although Ireland was decided just prior to the 1984 Torture Convention, the language of the European Convention on Human Rights [PDF] is identical to the Torture Conventions’ definition of torture and ill-treatment. In fact, in Selmouni v. France, the European Court of Human Rights cited Ireland with approval in this context.

All commentators lament the fact that the Obama administration never proceeded with criminal charges to back up their political rhetoric about waterboarding constituting torture. However, it is interesting to note that when certain individuals in Obama’s Justice Department sought to punish the DOJ attorneys at a lower administrative level, it backfired. In July 2009, the DOJ Office of Professional Responsibility (OPR) issued a report entitled Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” of Suspected Terrorists. The OPR report concluded that former OLC lawyers, John Yoo and Jay Bybee, had engaged in professional misconduct by failing to provide “thorough, candid, and objective” analysis in memoranda regarding the interrogation of detained terrorist suspects.” The OPR indicated that it would refer its findings of misconduct to the state legal bar for disciplinary action. Then, in January 2010, the DOJ Office of the Deputy Attorney General issued its own memorandum objecting to the findings of the OPR report and refused to “authorize OPR to refer its findings to the state [sic] bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.” In short, the DOJ determined that Yoo and Bybee had not engaged in professional misconduct in advising the CIA on the legality of enhanced interrogation techniques (EITs) based on existing law at the time.

Intellectually, I side with Yoo and Bybee. They are men of great courage and integrity. The CIA did not engage in torture between 2002 and 2005. Leading international case law such as Ireland and Public Committee (Israel, 1999) clearly set an extremely high bar for what would constitute torture. While individual members of the CIA and military have engaged in murder, torture, and other misconduct in their individual capacities and should be punished, the United States of America never authorized torture.

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, Waterboarding is “Torture”? — The Agenda-Driven Argument, JURIST – Academic Commentary, May 16, 2016, http://jurist.org/forum/2016/05/jeffrey-addicott-waterboarding-agenda.php.