United States law
The
United States Supreme Court in
Sosa v. Alvarez-Machain, said that the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law."
[182] However, the United States has a historical record of regarding water torture as a war crime, and has prosecuted as war criminals individuals for the use of such practices in the past.
In 1947, the United States prosecuted a Japanese civilian who had served in World War II as an interpreter for the Japanese military, Yukio Asano, for "Violation of the Laws and Customs of War," asserting that he "did unlawfully take and convert to his own use Red Cross packages and supplies intended for" prisoners, but, far worse, that he also "did willfully and unlawfully mistreat and torture" prisoners of war. Asano received a sentence of 15 years of
hard labor.
[115] The charges against Asano included "beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward."
[183] The specifications in the charges with regard to "water torture" consisted of "pouring water up [the] nostrils" of one prisoner, "forcing water into [the] mouths and noses" of two other prisoners, and "forcing water into [the] nose" of a fourth prisoner.
[184]
Following the
attacks of September 11, 2001, several memoranda, including the
Bybee memo, were written analyzing the legal position and possibilities in the treatment of prisoners.
[185] The memos, known today as the "torture memos,"
[186] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.
[187][188] In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.
[189][190]
In its 2005
Country Reports on Human Rights Practices, the
U.S. Department of State formally recognized "submersion of the head in water" as torture in its examination of
Tunisia's poor human rights record,
[45] and critics of waterboarding[
who?] draw parallels between the two techniques, citing the similar usage of water on the subject.[
citation needed]
On 6 September 2006, the
U.S. Department of Defense released a revised
Army Field Manual entitled
Human Intelligence Collector Operations that prohibits the use of waterboarding by U.S. military personnel. The department adopted the manual amid widespread criticism of U.S. handling of prisoners in the
War on Terrorism, and prohibits other practices in addition to waterboarding. The revised manual applies only to U.S. military personnel, and as such does not apply to the practices of the CIA.
[191] Nevertheless
Steven G. Bradbury, acting head of the
U.S. Department of Justice (DOJ)
Office of Legal Counsel, on 14 February 2008 testified:
There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law.
[192]
In addition, both under the
War Crimes Act[193] and
international law, violators of the
laws of war are criminally liable under the
command responsibility, and they could still be prosecuted for
war crimes.
[194] Commenting on the so-called "torture memoranda"
Scott Horton pointed out
the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face
criminal culpability themselves. That, after all, is the teaching of
United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous "
Night and Fog Decree."
[195]
's refusal to investigate and prosecute anyone that relied on these legal opinions led Jordan Paust of the
University of Houston Law Center to write an article for
JURIST stating:
it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey,
just following orders is no defense!
[196]
On 22 February 2008 Senator
Sheldon Whitehouse made public that "the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies."
[197][198]
Both houses of the United States Congress approved a bill by February 2008 that would ban waterboarding and other harsh interrogation methods, the
Intelligence Authorization Act for Fiscal Year 2008. As he promised, President Bush vetoed the legislation on 8 March. His veto applied to the authorization for the entire intelligence budget for the 2008 fiscal year, but he cited the waterboarding ban as the reason for the veto.
[199] Supporters of the bill supporters lacked enough votes to overturn the veto.
[200]
On 22 January 2009 President
Barack Obama signed an executive order that requires both U.S. military and paramilitary organizations to use the Army Field Manual as the guide on getting information from prisoners, moving away from the Bush administration tactics.
[201]
