Waterboarding: torture on trial

CIA Director Michael Hayden has admitted his agency’s failures in destroying videotapes showing the use of the waterboarding torture technique. His admission comes after a US government official said the tapes were destroyed in November 2005 on the orders of the head of the CIA's National Clandestine Service. The tapes showed several prisoners including Guantanamo detainee Abu Zubaydah being restrained while water was poured over their mouths and noses to produce the sensation of drowning. Critics say that by destroying the tapes, the CIA was attempting to head off its own embarrassing version of the Abu Ghraib scandal.

Waterboarding is a torture technique beloved of information seekers for over 500 years. It involves strapping down prisoners feet up, covering their mouths with plastic or cloth and pouring water over theirs face. Victims quickly begin to inhale water, causing the psychological sensation of "slow-motion drowning". Its attraction is that although it causes great physical and mental suffering, it leaves no marks on the body. The CIA says its interrogation techniques are in accordance with legal guidance from the Justice Department. They also point to a presidential finding in 2002 legalising the technique.

The history of waterboarding dates back at least to the 16th Italian Inquisition and perhaps even earlier. It was known as "water torture," the "water cure" or tormenta de toca (mouth torment) because a thin piece of cloth was placed over the victim's mouth. But under the influence of the 17th century Enlightenment, the practice was banned as “morally repugnant”. In 1901, the US military sentenced an Army major to 10 years of hard labour for waterboarding a Filipino rebel. In 1968 a soldier was punished after the Washington Post published a photo of him waterboarding a North Vietnamese prisoner.

Despite these punishments, waterboarding has undergone a 20th century revival. It has been used by a succession of Japanese, French, British, Cambodian and Latin American security forces. It got renewed impetus in the US after the CIA cited it as the technique that made 9/11 plotter Khalid Sheik Mohammed talk though there was a proviso that "not all of it [was] reliable”. According to one former CIA agent, waterboarding works. John Kiriakou, a leader of the team that captured Abu Zubaydah, said the technique forced Zubaydah to talk in less than a minute.

Conservative commentators such as Greg Gutfeld of Fox News says that the technique’s success in getting Zubaydah to name his accomplices shows that the ends justify the means. Gutfeld admits it is torture but says that “a little simulated drowning” is an acceptable preventative measure. “This new info prevented dozens of attacks,” he said yesterday. “But if we had listened to the Streisands and Afflecks of the world and banned waterboarding, then how many lives might have been lost?” The nub of Gutfield’s argument is that waterboarding is morally justified because the loss of benefit to the individual tortured is less than the loss of benefit to those who might die if torture is not applied.

But Catherine McDonald from Monash University’s philosophy department says all pro-torture arguments are logically flawed and morally implausible. Apart from the possible problem of torturing the innocent, McDonald disputes the evidence that torture is an effective means of gaining information. Its use also undermines civilian support for military activities and can galvanise an otherwise demoralised opposition. She believes that the concept of ‘justifiable torture’ is merely a rationalisation for the current US administration’s political position.

Torture is an international crime. The international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment has been ratified by 130 countries including the US and Australia. It forbids nations from deliberately inflicting ‘severe pain or suffering, whether physical or mental…for such purposes as obtaining...information or a confession. The Judge Advocates General (JAGs) of the US Army, Navy, Air Force and Marines agreed in August 2006 that waterboarding violates US law and the law of war. Several JAGs specifically stated that use of this technique would violate the US anti-torture statute, making it a felony offence.

Jean-Paul Sartre once wrote: “torture is senseless violence. Its purpose is not only the extortion of confessions and betrayals; the victim must disgrace himself, by his screams and his submissions, like a human animal”. Jonathan Hafetz, a lawyer at the Brennan Center for Justice at NYU Law School, has no doubt that waterboarding is torture and also says he knows why the CIA destroyed the evidence. "It really shows a mind-set and pattern of lawlessness,” he said. ”Not only to engage in illegal behaviour like torture, but to then destroy the evidence and attempt to cover it up.”