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Controversy over classification as torture in the United States

Whether waterboarding should be classified as a method of torture was not widely debated in the United States before it was alleged, in 2004, that members of the CIA had used the technique against certain suspected detained terrorists.^[1][2]

Subsequently, the United States government released a memorandum written in 2002 by the Office of Legal Counsel that came to the conclusion that waterboarding did not constitute torture and could be used to interrogate subjects. The OLC reasoned that "in order for pain or suffering to rise to the level of torture, the statute requires that it be severe" and that waterboarding did not cause severe pain or suffering either physically or mentally.

As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning—even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. as we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering"… The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering". Even if one were to parse the stature 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… We find the use of the waterboard constitutes a threat of imminent death… Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject's mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute. Although the waterboard constitutes the real threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering… We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years. Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard… In the absence of prolonged mental harm,no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.^[3]

For over three years during the Bush Administration, the Justice Department’s Office of Professional Responsibility conducted an investigation into the propriety of this and other memos by the Justice Department on waterboarding and other "enhanced" interrogation techniques.^[4] The OPR is set to conclude its investigation in late May or June 2009 and reportedly will recommend professional sanctions, if not criminal prosecution, against the authors of the memos.^[5][6] Commentators have noted that the memos omitted key relevant precedents, including a Texas precedent under then-Governor George W. Bush when the state convicted and sentenced to prison for 10 years a county sheriff for waterboarding a criminal suspect.^[7] Then Governor Bush did not issue a pardon for the sheriff.^[8]

Andrew C. McCarthy, a licensed attorney and former Republican U.S. federal prosecutor now serving as director of the Foundation for the Republican leaning Defense of Democracies Center for Law and Counterterrorism, states in an October 2007 op-ed in National Review that he believes that, when used "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law. McCarthy continues: "Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture, an ignominy the law, as we've seen, has been patently careful not to trivialize or conflate with lesser evils".^[9] Nevertheless, McCarthy in the same article admits that "waterboarding is close enough to torture that reasonable minds can differ on whether it is torture" and that "[t]here shouldn't be much debate that subjecting someone to [waterboarding] repeatedly would cause the type of mental anguish required for torture". ^[10]

Some American politicians have unequivocally stated that it is their belief that waterboarding is not torture. In response to the question "Do you believe waterboarding is torture?" on the Glenn Beck Program, Republican Representative Ted Poe stated "I don't believe it's torture at all, I certainly don't". Beck agreed with him.^[11]

Jim Meyers, a conservative commentator for NewsMax Media, stated that he does not believe that waterboarding should be classified as a form of torture, because he does not believe it inflicts pain.^[12]

However, other officials, including several within the Bush Administration, and American politicians and commentators have questioned the legality of waterboarding as an interrogation technique. Philip Zelikow, who served as a top adviser to then-Secretary of State Condoleezza Rice as Counselor of the United States Department of State and before that as Executive Director of the 9/11 Commision, testified before Congress on May 13, 2009 that he and his colleagues had tried in 2005 to rein in the interrogation program; Zelikow said that in response the Bush Administration tried to collect and destroy copies of a memo he had written disagreeing with the Justice Department’s legal opinions on interrogations.^{[13] [14]}

Richard Armitage, former Deputy Secretary of Defense under Colin Powell, told a news agency that in hindsight maybe he should have resigned over his suspicions regarding the Administration's use of torture techniques like waterboarding.^[15]

Bruce Fein, an associate deputy attorney general under Ronald Reagan and expert in constitutional and international law, wrote in an editorial in the Washington Times in February 2009, "[w]aterboarding has been prosecuted as torture since the Spanish-American War of 1898. Former Republican Secretary of Homeland Security Tom Ridge concurs that waterboarding is torture."^[16]

Jack Goldsmith, former head of the OLC starting in 2003, quit after only nine months because he reportedly disagreed with and fought against what have become known as the "torture memos" written by his colleague John Yoo. ^[17] Goldsmith wrote a book in which he wrote about some of his experiences and his belief that the torture memos defined torture too narrowly.^[18]

In another example, Professor Wilson R. Huhn's 2008 scholarly editorial "Waterboarding is Illegal", published by Washington University Law Review, directly questions the legality of the technique from a legal perspective.^[19]

In May 2008 the journalist Christopher Hitchens voluntarily experienced waterboarding. He managed to resist for twelve seconds the first time, and, embarrassed at his poor performance, he asked to try again. He then managed to resist for 19 seconds.^[20] He later told the BBC: "There is a common misconception that waterboarding simulates the sensation of drowning, but you are to all intents and purposes actually drowning".^[20] He said that although he was somewhat prepared for his ordeal, he had not been prepared for what came later: "I have been waking up with sensations of being smothered".^[20] Hitchens concluded, "if waterboarding does not constitute torture, then there is no such thing as torture. Believe me. It's torture".^[21][22][23]

On May 22, 2009, conservative radio talk show host Erich "Mancow" Muller subjected himself to waterboarding to prove that it is not torture. Mancow was able to endure the technique for six seconds, a few moments after which he declared, "It is way worse than I thought it would be, and that's no joke." Mancow likened it to a time when he nearly drowned as a child and had to be revived. Mancow said, "It is such an odd feeling to have water poured down your nose with your head back...It was instantaneous...and I don't want to say this: absolutely torture." ^[24]

Sean Hannity, another right-wing commentator who claims that waterboarding is not torture and has described those who oppose waterboarding as "moral fools", had declared on April 22, 2009 that he would similarly subject himself to waterboarding to prove that it is not torture.^[25][26] Sean Hannity has not yet subjected himself to the technique and did not respond when a left-wing commentator, Keith Olbermann, offered to donate $1,000 to charity for each second of waterboarding endured.^[27] Although Keith Olbermann has since withdrawn his offer calling it unnecessary after Mancow's admission (above) that waterboarding is torture, former Minnesota Governor and Navy Seal Jesse Ventura told the Huffington Post, "I'll bet [Hannity] a thousand bucks that I can get him to say 'Barack Obama is the greatest president' -- if I get him to say it, he'll give the thousand to charity and if I can't, I'll give the money to charity." ^{[28] [29]}

On January 15, 2009 the U.S. President-elect Barack Obama's nominee for Attorney General, Eric Holder, told his Senate confirmation hearing that waterboarding is torture and the President cannot authorize it.^{[30][31][32][33]}

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Great work rookie, some of what you have written is already covered in the article but that will get sorted over time. ^{(Hypnosadist)} 05:13, 25 May 2009 (UTC)