There is established US legal precedent on water torture

Does CIA nominee Gina Haspel agree with US convictions of Japanese for water torture?

Dan Plesch
11 May 2018

WASHINGTON, May 9, 2018. Gina Haspel, nominee for Director of Central Intelligence Agency, is sworn in to testify at her confirmation hearing before the Senate Intelligence Committee on Capitol Hill. Ting Shen/ Press Association. All rights reserved.Gina Haspel’s nomination to be Director of the CIA has focused attention once more on the US’s use of torture, since her Commander in Chief, Donald Trump has lauded waterboarding (near-death by drowning/suffocation) and she is alleged to have supervised such activities against Al Qaeda suspects at an airbase in Thailand.

Her nomination further shows the political widening of the Atlantic as the EU is preparing its annual day to end impunity for genocide, crimes against humanity and war crimes. Both events can be enriched by a fuller awareness of the prosecution of these crimes in the 1940s.

She is reported to have reassured Senators that she will not permit such interrogation techniques if appointed, and is prepared to accept recent US legislation that outlaws waterboarding and the US Military manual that does not authorise it.

Nevertheless, there will be those, likely the President, who will wish to resume this and other tortures.  So it is instructive to remind ourselves of US legal practice and political activism at the end of world war two. Three precedents from this era should add to the issues that the Senate Judiciary should raise with Ms Haspell this week. They provide evidence, if any might be needed, that banning  and maltreatment of prisoners is not some form of modern political correctness.

The International Military Tribunal for the Far East found the Japanese leadership guilty amongst other matters of the systematic use of water torture. Many US military Tribunals convicted lower ranked Japanese of this crime and other tortures. And Senator Joseph McCarthy trumpeted that the honour of the US military was besmirched by interrogation practices including mock trials, beatings and poor diet inflicted on Nazi SS troopers by US war crimes prosecutors.

“Among these tortures were the water treatment, burning, electric shocks, the knee spread, suspension, kneeling on sharp instruments and flogging.”  “The so-called ‘water treatment’ was commonly applied. The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process.” The judges at Tokyo were unanimous in their decision and it is noteworthy that ‘water treatment’, what we now call ‘water boarding’, was first on the list of tortures they described in their judgement. 

Rank and file Americans who were subjected to water treatment found justice meted out to their Japanese captors by US military tribunals. For example in 1946 a US military tribunal sentenced Isamu Ishihara to life imprisonment for a variety of tortures including water treatment. Among his victims were Sergeants Minnick, Schick, Stowe, Stowers, Dr Foley of the US Navy and a US civilian Bernie Bergman. The evidence given was revoltingly graphic. The original charges and the trial reports were processed through the operational documents of the United Nations War Crimes Commission. Trial reports processed in this way in the 1940s were found to have legal authority today by the International Criminal Tribunal for the former Yugoslavia.

If Senators require even further support for the idea that torture and maltreatment of prisoners is un-American then they need look no further than to the views of one of their most well-known forbears and an apparent role model for President Trump.

Senator Joseph McCarthy alleged that it was unacceptable for US Army war crimes prosecutors and guards to use any physical violence or psychological techniques such as mock trials during the interrogation of the accused. Such behaviour he argued sullied the name of the United States and called into question the validity of convictions. He had come to the vocal defence of Nazi SS troopers who had demonstrably machine gunned defenceless US soldiers who had surrendered during the Battle of the Bulge in Belgium in 1944. The SS men had been convicted by a US tribunal in 1946, but by 1949 McCarthy was bent on liberating the Nazis.

As Gina Haspel comes before the Senate it may be of some public interest to know whether she supports the high standard demanded by Senator McCarthy for the treatment of prisoners; where it was right to convict Japanese prison camp guards of the crime of water treatment and whether the Tokyo judgement against those who were in authority over the practice were justly convicted.

If Haspel is confirmed as CIA Director despite sufficient prima facie evidence of her involvement in torture perhaps she will be open to arrest when she visits the European Union. The records of the 1940s in US and Allied Courts and in the advisory opinion of the UN War Crimes Commission all provide strong support for the idea that commanders have responsibility for the actions of their subordinates.

The EU day of action against international crimes is one more step against the tide of brazen impunity. It can benefit from realising that our predecessors in the 1940s created a system that indicted 36,000 people as war criminals – not only the 24 we often think of at Nuremburg – and that these charges resulted in over 10,000 convictions.  Our full appreciation of that legacy was denied us by the success of McCarthyism when the processes were smeared and the records sealed for seventy years.  But we need them now more than ever.

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