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Waterboarding: Catholic law professor says such torture methods are intrinsically evil

By R.W. Dellinger
March 3rd, 2008
Catholic San Francisco (

SAN FRANCISCO, Calif. (Catholic San Francisco) - Testifying last month before the Senate Judiciary Committee, Attorney General Michael Mukasey repeatedly refused to describe the practice of “waterboarding” — which simulates death by drowning — on suspected terrorists as torture and an illegal interrogation method.

But when Senator Edward Kennedy of Massachusetts asked, “Would waterboarding be torture if it was done to you?” Mukasey readily replied, “I would feel that it was.”

Then on Feb. 5, CIA Director Michael Hayden admitted publicly for the first time before the Senate Select Committee on Intelligence that his agency had used the harsh technique on three Al Qaeda suspects in 2002 and 2003. One of those waterboarded was Khalid Shaikh Mohammed, the alleged mastermind of the 9/11 attacks. But Hayden insisted the Central Intelligence Agency had stopped using the technique nearly five years ago.

The following day, however, the White House not only vigorously defended the legality of waterboarding, but reported that President Bush might authorize its use again “under certain circumstances.”

And on Feb. 7, Vice President Dick Cheney, addressing the Conservative Political Action Conference, declared that personally he was happy the Administration had allowed suspects to be subjected to such harsh interrogation methods.

“Would I support the same decisions again today? You’re damn right I would,” he proclaimed. At the same time, the vice president insisted that the United States takes human rights seriously, adding, “We do not torture — it’s against our laws and against out values.”

Last month, on Feb. 13, the Senate passed a bill, approved earlier by the House of Representatives, that bans waterboarding and other so-called “enhanced” interrogation techniques not authorized by the United States Army Field Manual. California Senator Dianne Feinstein, who sponsored the provision limiting interrogation methods, declared, “Torture is out.”

But President Bush has threatened to veto the entire measure, claiming it limits the CIA’s effectiveness by outlawing punitive interrogation tactics.

And with that, the debate about using torture — specifically, waterboarding — to aggressively question suspects in the U.S.’s war on terrorism was abruptly reopened.

An intrinsic evil

Waterboarding has been used as early as the Spanish Inquisition to interrogate, coerce confessions and simply punish individuals. The simple yet brutal technique hasn’t varied much in 500 years. The victim is forced to lay down on his back with his head slightly inclined. Then, with a cloth placed over the person’s nose and mouth, water is poured over his face. After only seconds, the gag reflex is triggered, and the person begins to suffocate and gasp for air.

Japanese troops and Hitler’s Gestapo used waterboarding to torture and interrogate prisoners. Although the procedure was designated as illegal by U.S. generals during the Vietnam War, the Washington Post and other national newspapers called the practice “fairly common” on and off the battlefield. And Pol Pot’s notorious Khmer Rouge used it extensively between 1975 and 1979.

Waterboarding not only causes extreme pain and the sensation of dying, it can also severely harm the lungs, damage the brain due to oxygen deprivation and, if uninterrupted, result in death. What has made the technique so popular over the centuries is that it leaves no marks on the body.

Today, many legal experts, human rights organizations, war veterans, intelligence officials and military higher-ups consider waterboarding as torture to the extreme, being on a par with placing electrodes on a person’s genitals.

Marcy Strauss, professor of law at Loyola Law School, has traveled across the country debating not only the legality of using torture to interrogate suspected terrorists, but also its morality.

The personal human rights campaign has taken its own toll on the seasoned academic.

After speeches and debates where the mother of two boys would argue there could be no exceptions about using torture — an intrinsic evil — to elicit information, people would often challenge her asking, “What if your own kids were kidnapped?”

Better psychological tactics

“That bothered me for awhile,” confided Strauss during an interview in her second-story on-campus office near downtown Los Angeles. “And then it occurred to me that if I truly believe that torture isn’t effective, the answer would be ‘no,’ because we’d be getting all kinds of false leads instead of using long-standing psychological tactics that work much better.”

Still, Strauss reports, she was never a “gut-level” liberal who couldn’t see there were arguments on the other side that needed to be addressed.

“It was very difficult for me, and I did go back and forth to some extent,” she admitted. “But I guess the position I’m somewhat comfortable with at this stage is that torture is illegal. It’s one of the international norms that knows no exception. It is prohibited without any emergency, necessity exception. It’s one of those few norms that are like that — that and slavery and genocide.”

The law professor then detailed four reasons why torture should never be an option for any government.

First, it’s forbidden by international law, including the U.N.’s Convention Against Torture — which was ratified by 130 countries, including the United States — plus the Geneva Convention as well as Article 5 of the Universal Declaration of Human Rights, and Articles 7 and 10 of the International Covenant on Civil and Political Rights. Strauss emphasizes that international law recognized no exceptional circumstances to this absolute ban.

Second, it doesn’t work. Strauss points out that most hardcore terrorists are trained to resist torture tactics; and if they do talk, the information is often useless or untrue. As example number one, she gives Ibn al-Shaykh, who was captured in 2001 and allegedly subjected to waterboarding among other methods. He did cough up some bogus information about Saddam Hussein warehousing weapons of mass destruction, which then-Secretary of State Colin Powell dutifully reported to the United Nations. The end result was the U.S.’s pre-emptive invasion of a sovereign nation.

U.S. squandered ‘good credits’

“When I gave speeches around the country, I came in contact with many military officials, including people in intelligence agencies, and I was shocked at the level of their commitment to interrogation methods that were legal,” she said. “They were totally convinced that torture didn’t work and that well-researched alternative interrogation methods that they’ve studied and practiced do work.”

Strauss feels just as strongly about the untold harm done to the nation’s image around the world by photos of abuse and torture from Abu Ghraib. “I really believe that we squandered all of our good credits after 9/11,” she said. “Even the Bush Administration has conceded that the damage done from those pictures is devastating. And how many terrorists did that create as opposed to the minimal information we obtained?”

The law professor’s final argument against the use of torture concerns the often brought up “ticking bomb scenario,” which she notes never occurs in the real world. Moreover, sanctioning torture in exceptional circumstances can’t possibly be contained and will always lead to innocent victims being tortured in non-exceptional circumstances.

“Torture legalized is torture utilized,” she observed. “Abu Ghraib, Guantanamo Bay and Bagram [Afghanistan] are all examples of this phenomenon. After 9/11, the Bush Administration was, at best, morally ambivalent toward torture, and, at worst, condoned it.”

Ignoring abusive practices

During the war on terrorism, and especially regarding interrogation, the message conveyed down the lines of command in Iraq and Afghanistan has been the ends justified the means, Strauss says. In short, the United States was engaged in a supposedly all-out battle of good versus evil. Abusive practices, as a result, were ignored and tolerated, while extreme interrogation tactics like waterboarding were considered and embraced.

The legal scholar views torture as fundamentally evil and harmful for the torturer along with the tortured, because it corrupts the interrogators as they depersonalizes the enemy. She has a hard time understanding why the well-documented use of torture by her own country hasn’t become a major political issue so far during the 2007/08 presidential primaries.

“I think while most people would say, ‘I’m against torture,’ there’s a slight ambiguity that we feel, almost a wink, wink,” she said, shaking her head. “We see it on the TV show ‘24’ and get kind of enamored by it.

“But most people don’t want to think about it,” Strauss explained. “It’s very easy when you feel pretty comfortable it won’t ever affect you. You never imagine you’re going to become a subject to torture. So it’s kind of easy to intellectualize it.”

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