Debunking Myths in the Torture Debate: Why Waterboarding Does More Harm than Good

The recent release of memoranda advising the President about interrogation techniques used at Guantanamo Bay, specifically waterboarding, has prompted much debate regarding the utility and morality of torture. Many argue that torture is unequivocally wrong. Others contend that, under certain circumstances, torture may be permissible or even recommended. This post reviews the laws that apply in the United States as well as the scientific studies regarding the use of torture so that our readers may take an informed stance. We explore two common myths surrounding torture such that it becomes clear: torture is never a valid option.

Myth #1: Certain types of conduct, including waterboarding, are not torture.

To understand whether torture is ever permissible, we must first clarify what is or is not torture. In the context of the debate over waterboarding of terrorist suspects, many argue that this technique is not torture because, in most cases, it does not cause permanent physical injury. International law offers a clear prohibition against torture, defined as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [1]

This ban is contained not only within multiple international treaties, including the Geneva Conventions, but also customary international law as well as U.S. domestic law. [2]

Yet some commentators have attempted to delineate how much pain, suffering, or force must be inflicted before the “torture line” is crossed. Their creation of an artificial divide between torture and cruel, inhuman, and degrading treatment acts as a distraction from the real issue: whether torture is justifiable. For example, panelists on Fox News’ “The Strategy Room” unanimously concluded that the actions of a United Arab Emirates sheik, including electrocuting, whipping, and driving over a prisoner, constituted torture. Yet, in that same discussion, the panelists continued to refer to waterboarding as “splashing water on someone.” These divergent reactions are the result of the difference between reading about a set of interrogation procedures versus watching and hearing them be carried out. The difference might also be related to the identity of the person being tortured; some might change their opinions regarding the lawfulness of torture based on whether the person strapped to the board is an alleged Al Qaeda operative or a U.S. citizen.

The willingness of some journalists to undergo waterboarding provides an opportunity to better understand the procedure. Watching someone emerge, stuttering and panicked, from a brief waterboarding session raises more questions than merely reading about the procedure. This is especially true since these willing participants lack both the perspective of someone accused – whether correctly or incorrectly – of being a terrorist, as well as the agenda of some administration and military officials.

When waterboarding was applied in a controlled environment with less political charge to two different participants, both subjects easily and quickly conceded the procedure is torture. Conservative radio talk show host Eric “Mancow” Muller was so adamant that waterboarding was merely “uncomfortable” that he agreed to undergo the procedure during a live radio broadcast: “I wanted to prove it wasn’t torture.... they cut off our heads, we put water on their face.” After only a few seconds, he emerged gasping for air, then raised his head and said, though he hated to admit it, the procedure was “absolute torture.” Similarly, Vanity Fair columnist Christopher Hitchens subjected himself to waterboarding and later penned an entire article describing, in detail, how and why the procedure was torturous.

The objective accounts of Muller and Hitchens tend to debunk any skepticism as to the fact that waterboarding constitutes torture.

Myth #2: Torture is a Useful Tool in the War Against Terror

Another argument often put forth to support the use of torture is the “ticking time bomb scenario. Its proponents argue that torture may provide the only avenue by which certain life-saving information may be extracted from informants. Such proponents claim that waterboarding has “saved thousands of lives.” These declarations may be refuted by two separate lines of argumentation: (1) there is no evidence to prove that waterboarding is the only way to gain information and (2) even if waterboarding is the only way to gather information, there is no guarantee that the information will be truthful.

First, there is no control group or any reliable method comparison from which to draw the conclusion that torture is the sole method of gaining information. As Intelligence Director Admiral Dennis C. Blair has stated: "...there is no way of knowing whether the same information could have been obtained through other means..." These conclusions were buttressed by a New York Times op-ed piece by Ali Soufan, a former interrogator responsible for the interrogation of Abu Zubaydah. Like Blair, Soufan stated that “there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.”

Second, even if torture provides the quickest and most efficient method of gaining intelligence, there is no guarantee that information gained is correct. Harsh interrogation techniques may have created an unbearable pressure on detainees to make statements, whether false or fabricated, in order to make the painful interrogations cease. One of the high-value detainees imprisoned at Guantanamo, Khaled Shaik Mohammed, provided misleading information to interrogators: “I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.... I'm sure that the false information I was forced to invent...wasted a lot of their time and led to several false red-alerts being placed in the US.” Therefore, even if tortuous techniques were the only way to gain certain information, there is no guarantee that the information gained is true or would prove to be helpful to national security officials.

Sadly, it appears that the use of “enhanced interrogation techniques” may have lead not only to a wider escalation in violence, but to misinformation (and thus a likely misallocation) of U.S. military resources. These techniques have damaged the global reputation of the United States, and, according to Admiral Blair, “the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

-Jill Paul, International Justice Project Legal Intern

[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 39 U.N.T.S. 24841.

[2] See, e.g., War Crimes Act of 1996, 18 U.S.C. § 2441 (1996); Anti-Torture Statute, 18 U.S.C. § 2340; Torture Victim Protection Act, 28 U.S.C. § 1350 Note.

Treaty Ratification: Why Should the United States Ratify International Treaties?

Earlier this year, when Sen. Barbara Boxer (D-Cal) began urging the Obama administration to ratify a 20-year old international agreement creating a full range of human rights for children, it revived discussions about what role the promotion of human rights should play in U.S. foreign policy. The answer is simple: as the world’s lone superpower, the U.S. has the rare and important ability to influence the behaviors of governments and people around the globe.

Although the U.S. has played a key role in establishing global human rights standards – the UN Declaration on Human Rights (UDHR) was inspired in part by Franklin D. Roosevelt’s Four Freedoms speech, and partially drafted by his wife, Eleanor [1] – the country’s credibility has been compromised because of its role in recent human rights violations. With this year marking the 60th Anniversary of the UDHR, and it being the first time the U.S. has held a seat on the UN Human Rights Council, the timing couldn’t be better for the U.S. to reaffirm its commitment to universal human rights by ratifying international treaties. [2] To date, the U.S. has failed to ratify several fundamental international agreements intended to protect human rights, including the Convention on the Elimination of All Forms of Discrimination against Women (commonly known as “CEDAW”) and the Rome Statute of the International Criminal Court.

The Convention on the Rights of the Child, which provides a global framework for the protection of children by vesting them with specific civil, social, cultural, political, and economic rights, is yet another example of a human rights agreement the U.S. has failed to ratify. Although the Treaty was signed by the Clinton administration in 1995, it has not yet been ratified – an important distinction as “signing” treaties is akin to a symbolic gesture, while “ratification” gives teeth to the agreement by creating legal obligations. Despite publicly stating its intention to ratify, the U.S. still stands with Somalia as one of the only two countries to not ratify the Treaty, while worldwide atrocities against children – including enslavement, torture, abuse, and abduction – continue daily.


While some believe that, under the Supremacy Clause, the Treaty would trump all federal laws and undermine parental authority and influence over a child’s development, in actuality, the Treaty would not override the Constitution. For one, U.S. ratifications of international treaties are often made with explanations or caveats (in what are called Reservations, Understandings, and Declarations or “RUDs”) to acceptance. If the U.S. agrees with the general principle of the Treaty, but is troubled by a certain provision, it may clarify or modify those areas of the Treaty before ratification. Furthermore, the Treaty is not self-executing – it cannot be “automatically implemented without legislative action,” giving Congress another opportunity to clarify what the Treaty will and will not mean for U.S. law.

Regarding parental rights, the CRC clearly recognizes the principle that parents “have the primary responsibility for the upbringing and development of the child,” and that parties to the Treaty are merely rendering “appropriate assistance” to parents performing their child-rearing responsibilities. In other words, ratifying the Treaty will not give the UN authority to control U.S. policies on children and there is no language in the CRC dictating how American parents are to raise their children. In fact, the CRC frequently emphasizes the vital role that parents play and recognizes the importance of a loving family atmosphere for the proper upbringing of a child.
Some opponents to ratification purport that, under the Treaty, parents will no longer be able to spank their kids.

To those who understand the language of the Treaty and the realities of its implementation, this argument is easily dismissed. At no point does the text of the Treaty refer to spanking or corporal punishment of children. What it does prohibit, is “cruel, inhuman or degrading treatment or punishment.” It also protects children from physical and mental violence, injury and abuse, neglect, and maltreatment or exploitation. Each country may interpret the Treaty as it so chooses, and many have defined such violence as beatings so severe that they leave visible marks on the body.

Overseas, the implementation of laws in furtherance of the Treaty has been largely successful. Recent reports from many of the 193 countries that have ratified the Treaty indicate that much progress is being made as a result. In countries such as Oman, Niger, Romania, and Bangladesh, governments have implemented laws forbidding children in armed conflicts, combating child poverty, and improving the health and well-being of children. The results have varied, from decreases in infant mortality rates to significant progress in the area of education.

Contrary to claims that U.S. children already enjoy the rights set forth in the Treaty, many American kids still live in poverty, and nearly a million children suffer from child abuse or neglect each year. Though the U.S. may not face all of the challenges seen in other countries, ratifying the Treaty will lend support to those countries and encourage the addressing of challenges we do still face.

In light of these considerations, it is not difficult to see why the U.S. should ratify the CRC. Not only will ratification boost U.S. credibility overseas, but it will demonstrate our commitment to ensuring the basic rights and freedoms to which all humans are entitled, worldwide. Global leadership, after all, is a privilege that we must not take for granted.

-Jacy Youn, International Justice Project Legal Intern

[1] Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for the New Administration, American Constitution Society for Law and Policy, Oct. 2008, available at http://www.acslaw.org/files/C%20Powell%20Blueprint.pdf
[2] Statement of Congressman John Lewis (GA), On the Reintroduction of Recommitment to International Human and Civil Rights Resolution, May 7, 2009

Senate Armed Services Committee Report Findings Confirm the Necessity for Criminal Investigations Into Detainee Abuse and Torture

The Senate Armed Services Committee’s report on the treatment of detainees in U.S. custody – the product of a 2-year-long bipartisan inquiry – heightens the need for a criminal investigation into abuse and torture authorized by officials of the previous administration.

The extensive report [pdf], numbering over 260 pages, found not only that interrogation techniques used on detainees were designed with a purpose of eliciting false confessions, but also that top-level government officials were involved from the early stages and throughout the development of the interrogation program.

The indefinite detention of any person solely for the purpose of interrogating him is prohibited under the laws of war and under U.S. law. The United States government recognized this longstanding legal principle in the 2004 Supreme Court case Hamdi v. Rumsfeld, in which the Court recognized that “indefinite detention for the purpose of interrogation is not authorized.” United Nations human rights officials [pdf] and the International Committee of the Red Cross have been equally clear in addressing U.S. policy, stating that the indefinite detention of prisoners of war or civilian internees solely for purposes of interrogating them contravenes the provisions of the Geneva Conventions.

The SASC report also details the fact that senior-level government officials were involved in the design, development and implementation of such practices. According to a former senior U.S. intelligence official, former Vice President Cheney and former Defense Secretary Donald Rumsfeld were, “for most of 2002 and into 2003 . . . demanding proof of the links between al Qaida and Iraq.”

Former U.S Army psychiatrist Maj. Charles Burney, who was deployed to Guantanamo Bay in mid-2002, confirms these statements in the SASC report: “while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link . . . there was more and more pressure to resort to measures that might produce more immediate results.” The former administration’s fixation on eliciting false confessions to establish such a link is demonstrated by the CIA’s interrogation of two detainees a combined total of 266 times, from 2002-2003.

That high-level officials demanded the use of harsher interrogation techniques in order to elicit a confession, with no regard for veracity, to establish a link between al Qaida and Iraq demonstrates their complicity in acts that violate U.S. and international law. As the Senate Armed Services Committee concluded in its report:

The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.

In addition to compromising our moral authority, these acts violate our laws. As Senator Levin, Chairman of the Senate Armed Services Committee, said in his remarks announcing the release of the report, “senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.”

Attorney General Eric Holder must appoint an independent counsel to investigate those officials responsible for directing, authorizing, or otherwise facilitating these practices, and prosecuting those found to have violated the law. He must do so in order to ensure that the American people have a full understanding of the role that the U.S. government played in these damaging human rights violations, to ensure that those individuals victimized by such abuse receive justice and full disclosure of the reasons for their suffering, and to ensure that those responsible for such grievous violations of basic human rights norms are held to account.

April 20th Screening of Pray the Devil Back to Hell a Huge Success.

Human Rights USA thanks everyone who made the April 20, 2009 screening of “Pray the Devil Back to Hell” a success. We had a wonderful turnout to see this documentary of the courageous Liberian women who brought peace to their war-torn country. Our audience included an impressive mix of NGO workers, government employees, law students, and members of the DC community with varying levels of familiarity with the history and the current situation in Liberia. We are happy to hear from many attendees that the film helped them better understand and appreciate why HRUSA was involved with the criminal prosecution against Chuckie Taylor and has brought a civil case against him as well.

HRUSA would like to thank:

Our panelists, Abigail Disney, the film's producer; Dr. Patricia Morris, Executive Director of Peace x Peace; and Matthew Baechtle, an ICE Special Agent who launched the investigation of Chuckie Taylor, for their insightful discussion of the impact of the film, the array of issues it addresses and the reality facing Liberians as a result of the civil war.

Steptoe & Johnson LLP for its generous support of this event.

Rona Leff and the Letelier Theater for use of their beautiful theater and reception space.

Chef Emilie Stein of Cafe 1612, Hello Cupcake, and Sumah's West African Restaurant for catering the reception.

Volunteers Robbie Kleekpo and Jonathan Henriques who most generously volunteered their time in making this event possible.

Update 07/21/09: for photos of the event, please see our Facebook album on our Fan Page.

Update 07/28/09: here is the trailer for this powerful movie:

Momentum builds for accountability

Almost one year ago, then-presidential-candidate Barack Obama said that if “genuine crimes” such as torture, rendition, or illegal wiretapping were committed by high-level U.S. government officials, his administration would investigate them. He said, more specifically, that “if [he] found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then [he thinks] a basic principle of our Constitution is [that] nobody is above the law.”

Four memos released last week by the Justice Department present the clearest indication to date of the Bush administration’s attempts to seek legal authorization for criminal acts. By writing these memos, the Justice Department’s Office of Legal Counsel (OLC) created legal cover for the use of waterboarding and other abuses by the CIA; the Bush administration then used these memos to justify indefensible human rights violations, such as torture and cruel, inhuman, and degrading treatment.

Torture is unequivocally and universally prohibited under all circumstances, including during times of war, out of necessity, in self-defense, or where legal counsel purport to authorize it. The notion that a government attorney can provide cover for officials who seek to torture and commit other war crimes was unequivocally rejected over half a century ago when, during the Nuremberg trials, U.S. prosecutors sentenced Nazi war criminals to prison or death for committing crimes against humanity.

Under both domestic and international law, the United States is required to investigate and, where warranted, prosecute those responsible for committing acts such as torture and other war crimes or crimes against humanity. These obligations are set forth clearly in the Uniform Code of Military Justice, United States criminal laws, the Geneva Conventions, the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and customary human rights standards.

In his public statements regarding the memos, Mr. Obama recognized that “the United States is a nation of laws.” But it is only a nation of laws if laws have meaning, are given precedence over politics, and are enforced. The next step President Obama must take is to ask Attorney General Eric Holder to appoint a special prosecutor to investigate these crimes and, where warranted, prosecute those responsible. It is time for the United States to prove that it is, once again, a nation of laws.

Human Rights USA and University of Texas Law Clinic Published in Northeastern University Law Journal

An article written by Human Rights USA's Colleen Costello, Attorney for Human Rights & Anti-Terrorism Project, in collaboration with law students from the University of Texas National Security & Human Rights Clinic, appears in the February 2009 inaugural edition of the Northeastern University Law Journal.

The article, Challenging the Practice of Transfer to Torture in U.S. Courts: A Model Brief for Practitioners, examines the myriad legal issues presented by transfers to torture (the practice of transferring detainees to countries where they face a substantial likelihood of being tortured), and sets forth legal arguments challenging these unlawful transfers as violations of the Convention Against Torture and other international and domestic laws.

Portions of the article were presented by Ms. Costello at the Northeastern University School of Law's Guantánamo Symposium on April 25, 2008.*

The full citation for the article is Colleen Costello, Challenging the Practice of Transfer to Torture in U.S. Courts: A Model Brief for Practicitioners, 1 NE. U. L.J. 157 (2009). An electronic version of the article may be found at the NULJ website.

*The article was subsequently updated to incorporate the Supreme Court's June 2008 decisions in Boumediene v. Bush and Munaf v. Geren, which further defined the scope of rights available to detainees held by the United States Government.