When waterboarding was a crime

Americans knew the practice was torture back when we prosecuted the Japanese for using it after World War II.

Topics: Torture

Ever get the feeling the debate about waterboarding is surreal, that most people have to realize that it’s torture, and that it’s illegal? So does Evan Wallach, a former judge advocate general in the Nevada National Guard, who has a must-read Op-Ed in the Washington Post Sunday. Wallach recalls a time when U.S. military leaders knew waterboarding was torture — when they prosecuted and convicted Japanese soldiers for waterboarding American prisoners of war after World War II, during the International Military Tribunal for the Far East, known as the Tokyo War Crimes Trials.

Here’s the testimony of Air Force Lt. Chase J. Nielsen, who was captured by the Japanese in 1942: “I was given several types of torture … I was given what they call the water cure.” Asked how it felt, Nielsen replied, “Well, I felt more or less like I was drowning, just gasping between life and death.” Several Japanese torturers were convicted in the trials, and “the principal proof upon which their torture convictions were based was conduct that we would now call waterboarding,” Wallach says. More recently, he notes, in Texas in 1983 a sheriff and his deputies were convicted of violating prisoners’ civil rights by using a form of waterboarding to force confessions. Wallach’s piece also includes this useful observation: “The media usually characterize [waterboarding] as ‘simulated drowning.’ That’s incorrect. To be effective, waterboarding is usually real drowning that simulates death.”

I sure hope Chuck Schumer reads Wallach’s piece. I’m used to Dianne Feinstein acting like Joe Lieberman, betraying Democrats and backing the Bush administration. But Schumer’s announcement Friday that he’d support Michael Mukasey as attorney general, despite Mukasey’s cowardly refusal to say waterboarding is torture, was a jolt. Reading the New York Times Saturday account of why Schumer made his decision was even more appalling. Apparently, the senior New York senator got to sit down with Mukasey alone, and the retired federal judge privately reassured him he would enforce laws banning torture — though Schumer didn’t say if Mukasey told him whether he believes waterboarding is torture.



“The judge made clear to me that, were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority,” Schumer said. “And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution.” Interestingly, the Times account added: “The senator’s statement did not address the possibility that Mr. Bush would veto any such legislation.”

I’m glad Schumer thinks that a private, man-to-man conversation substitutes for testimony before the full Senate. That’s the kind of arrogance that makes people sick of politics. As if Americans should judge Mukasey by what he told Schumer privately more than by what he is willing to say publicly? But Schumer feels special and important — the administration arranged his private sit-down with Mukasey, and that’s what matters. It’s also telling that the Democratic leader doesn’t feel the need to deal with the messy real world certainty that Bush would veto legislation declaring waterboarding torture — in the unlikely event Democrats could get enough Republican support to pass it.

Schumer insists Mukasey is the best Democrats can expect from Bush in an attorney general nominee, but we won’t know until the majority party in Congress tests the president by rejecting substandard candidates. But since Democrats don’t have the spine to do that, why should Bush do any better than Mukasey? Make sure to read Evan Wallach’s Op-Ed in the Post, and then mourn how much Americans, including some Democrats, have lost their moral bearings in the past 60 years.

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