JURIST Guest Colomnist Jordan J. Paust, the Mike & Teresa Baker Professor at the Law Center at the University of Houston, discusses how waterboarding is a form of torture…

Professor Jeffrey Addicott has made false statements about Bush/Cheney interrogation tactics in a recent commentary piece . Among them are the manifestly erroneous assertions that “the US has never engaged in torture,” “we have not … engaged in torture,” “[n]one of the techniques employed by the US have ever involved unlawful interrogation practices,” “waterboarding … was clearly not torture” and “the techniques produce no prolonged mental harm that would violate the Torture Convention.”

Use of computer-assisted research would easily disprove each of the quoted assertions. First, George W. Bush, Cheney and others have admitted that they either authorized or facilitated use of waterboarding. Computer-assisted research of US cases, not to mention scholarly works written since disclosures of the infamous Yoo-Bybee memos [PDF] in 2002 and the equally infamous Bradbury memos [PDF] in 2005, will disclose that at the time of the erroneous 2002 and 2005 memos at least twenty-nine US federal and state court cases had recognized that waterboarding and related inducement of suffocation by water is torture. The same recognition appeared in three cases from the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights and in seven US Department of State Country Reports on Human Rights Practices of other countries. Not one of these cases was cited in the 2002 or 2005 memos, and not one of the seven US Department of State reports was cited in the 2002 or 2005 memos. Further, US soldiers had been prosecuted in 1902 in the Phillipines for using water-boarding during the Spanish-American War and in 1968 in a US courts-martial in Vietnam. Water torture was also prosecuted at the IMT at Nuremberg, the IMT for the Far East, Norway, tbe UK, Singapore, and US military commissions in Europe after WII. [43 Valpo. U. L. Rev. at 1554-55 n.69 – click-on].

It is incorrect to cite to the ECtHR case, The Republic of Ireland v. The United Kingdom, 1978 [re-opened case] involving five UK interrogation tactics that were found to be unlawful as inhuman and degrading treatment in violation of human rights law, because none of the tactics involved waterboarding. Inhuman and degrading treatment during an armed conflict would also be a war crime under treaty-based and customary laws of war if practiced on any detainee of any status for any reason. These forms of illegal treatment are also addressed in Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is applicable in time of war or peace.

Second, a claim that “prolonged mental harm” is needed to “violate the Torture Convention” is clearly belied by the definition of torture set forth in Article 1 of the Convention, which expressly and unavoidably covers “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted.”

Third, the stark assertion that “[n]one of the techniques employed” during the Bush/Cheney program “have ever involved unlawful interrogation practices” is legally unsupportable. As in the case of waterboarding, adequate research during the erroneous 2002 memos would have easily demonstrated that several tactics authorized and abetted in violation of human rights law, the customary and treaty-based laws of war and the Convention Against Torture were torture. For example, fourteen US federal and state court cases, one case in the ECtHR and two US Department of State Country Reports on Human Rights had recognized that the cold-cell and related inducement of hypothermia constitutes torture. None of these cases or Department of State reports were mentioned by Professor Addicott or in the infamous 2002 and 2005 memos. Additionally, the use of dogs to instill intense fear or terror and death threats had been recognized as constituting torture in US cases and US Department of State Country Reports on Human Rights, which were also easily discoverable. Yet again, these materials were neither utilized nor analysed in the discussion of the topic, nor during the creation of the infamous 2002 and 2005 memos. A number of other tactics were, if not torture, recognizably cruel, inhuman or degrading, as the Convention Against Torture Committee later pointed out to the US in a country-specific report on Bush/Cheney tactics of sexual humiliation, short shackling and use of dogs to induce fear.

Fourth, Professor Addicott prefers that advisers to the next president “keep in their back pocket the long standing common law doctrine of ‘necessity.'” Nonetheless, it is widely known that alleged necessity is not a defense to violations of treaty-based and customary laws of war that proscribe every form of torture and cruel, inhuman and degrading treatment, and that Article 2, paragraph 2, of the Convention Against Torture expressly warns that “[n]o exceptional circumstances whatsoever … may be invoked as a justification for torture.” Further, it is widely known that human rights law similarly provides an absolute prohibition of torture and cruel, inhuman and degrading treatment of any human being and that such a prohibition is part of peremptory rights and prohibitions jus cogens. It is widely known that torture by US officials or agents will violate the Fifth Amendment to the US Constitution, as well as the Eighth Amendment (where applicable) and that no alleged “common law” could lawfully prevail domestically over the US Constitution, treaty law of the US or customary international law. Further, an alleged common law doctrine of necessity is inapt with respect to the constitutionally-based limitations on executive authority famously recognized, for example, in Ex parte Milligan.

Finally, one wonders whether the failure of President Obama to comply with his unavoidable constitutional duty faithfully to execute the laws, which require initiation of prosecution or extradition of all persons who are reasonably accused of having authorized, abetted or committed international crimes addressed herein (like Bush, Cheney, Rice, Gonzales, Rizzo, Yoo, Bradbury and so many others), has contributed to statements by certain presidential candidates that they might use waterboarding and other manifestly unlawful tactics.

Before the International Criminal Court (ICC), mistake of law and manifestly unlawful authorizations or facilitating memos would not provide limitations of individual criminal responsibility. Even though the US is not a party to the Rome Statute of the ICC, US nationals can be prosecuted by the ICC if alleged crimes took place (even partly) within the territory of a party to the treaty, such as Afghanistan, Jordan, Lithuania, Poland or Romania. Further, an ad hoc international criminal tribunal could be created that uses the same standards for individual criminal liability.

Professor Jordan J. Paust is the Mike & Teresa Baker Professor at the Law Center at the University of Houston is a former member of the faculty of the US Army Judge Advocate Generals School (1969-1973).

Suggested citation: Jordan J. Paust, Waterboarding Is Decidedly and Manifestly Torture, JURIST – Academic Commentary, Apr. 23, 2016, http://jurist.org/forum/2016/04/jordan-paust-waterboarding-torture.php.