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Dick Cheney's Tortured Denial

Former U.S. Vice President Dick Cheney is not just an apologist for torture ... he seems to be an enthusiast fan of waterboarding and what he calls the "enhanced interrogation program."

by Michael R. Burch, an editor and publisher of Holocaust poetry

On NBC's Meet the Press on Sunday, December 14, 2014, Dick Cheney made it perfectly clear that "I'd do it again in a minute," referring to "enhanced" interrogation methods employed by the CIA.

Cheney's remark came in response to host Chuck Todd's observation that, according to a Senate Select Committee on Intelligence report released the previous week, 26 out of 119 inmates in the CIA's clandestine prisons had been wrongfully held. In a number of cases of mistaken identity the prisoners were released with "no apologies, nothing." Todd then asked Cheney: "Twenty-five per cent turned out to be innocent … Is that too high? You're okay with that margin of error?" Remarkably, Cheney was perfectly fine with that, replying: "I have no problem as long as we achieve our objective." This reminds me of how Nazis spoke about Jews, Gypsies and other "undesriables" they had imprisoned and tortured: justice didn't matter; all that mattered was fulfilling the objectives of the Fatherland.

Shortly thereafter, as if in denial that incarceration and torture of innocent people had actually taken place, Cheney condemned and damned all the prisoners collectively, saying, "They are unlawful combatants. They are terrorists." But of course many of the prisoners weren't terrorists, just would-be defenders of their homeland who happened to be at the wrong place at the wrong time. They had never posed a threat to any Americans who stayed in their own neck of the woods.

Dick "The Penguin" Cheney sits on the board of Tortures-R-U.S.

Fascists of a Feather
flock together!

When Chuck Todd asked Cheney what he would construe as torture, he replied: "I've told you what meets the definition of torture. It's what nineteen guys armed with airline tickets and box cutters did to three thousand Americans on 9/11." According to Cheney, calling anything else torture suggests a "moral equivalence" that he finds deeply offensive. Again, I am reminded of Nazis who were willing to commit the most horrific acts in "defense" of the Fatherland.

Todd continued to press Cheney for a definition of torture, but was informed that anything "specifically authorized and O.K.'d" and "blessed by the Justice Department" was not torture. As with the Nazis, if the Fuhrer says the victims deserve what the get, you aren't a torturer. And what sort of person speaks of torture being "blessed"?

Dick "The Penguin" Cheney

Todd then asked about something not on the list of approved techniques: the shoving of pureed "hummus, pasta, sauce, nuts, and raisins" into Majid Khan's rectum. Cheney responded: "I believe it was done for medical reasons." I can only conclude that Cheney is a sick bastard, or that he is so deeply mired in denial that he would see nothing wrong with using the corpses of CIA prisoners to create lampshades. Hell, he might buy one himself.

Cheney then argued that if something was done that wasn't "part of the program" it couldn't be called torture either.

"But you acknowledge this was over and above…"
"That was not something that was done as part of the interrogation program."
"But you won't call it torture?"
"It wasn't torture in terms of it wasn't part of the program."

So anything approved by higher-ups cannot be called torture, and anything not approved cannot be called torture either. Therefore, nothing done to the prisoners was torture, no matter how heinous.

But what if the victims were American soldiers captured on the battlefield? As John McCain pointed out, the U.S. military hanged Japanese soldiers for waterboarding American prisoners of war during WWII. This from Politifact: "McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as 'water cure,' 'water torture' and 'waterboarding,' according to the charging documents. It simulates drowning. ... A number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps."

Americans can hang other people for waterboarding, but according to Dick Cheney, if Americans waterboard prisoners, it cannot be called torture. Something is clearly wrong with this picture. It seems to me that Cheney must have the same worldview as the Nazis. Nothing they did to Jews, Gypsies and Slavs was immoral because they were "superior" and they had the "right" to torture and kill their "inferiors." If the people they tortured and killed were innocent, it didn't matter because they were still inferior and had no right to expect justice.

Where should we draw the line? Here's a simple question: If an American soldier becomes a prisoner of war, do we want him to be locked in a small, dark, coffin-like box; shackled for extended periods of time in "stress positions" until he soils himself, paraded around nude on a leash like a dog; slammed against walls; gagged with water till he feels like he's drowning; kept awake for days on end; or stripped naked and kept in an ice-cold cell until he dies of hypothermia? These "enhanced interrogation techniques" were part and parcel of the CIA program. No, of course we don't want Americans to be tortured. So obviously we should not do such things to anyone we capture. We should treat our prisoners the way we want Americans to be treated when they are captured.

Dick Cheney Quotes: The Penguin in His Own Words

"I had other priorities in the sixties than military service." (Regarding Cheney's five draft deferments)
"My belief is we will, in fact, be greeted as liberators." (Regarding the invasion of Iraq)
"With every advance by our coalition forces, the wisdom of [my] plan becomes more apparent." (Do tell!)
"It would have been a mistake for us to get bogged down in the quagmire inside Iraq." (But that's exactly what you did, Mr. Penguin!)
“I believe very deeply in the proposition that what we did in Iraq was the right thing to do." (Invading a nation on false premises is the "right thing to do"?)
"There is no doubt that Saddam Hussein now has weapons of mass destruction." (Oh really?)
"The days of looking the other way while despotic regimes trample human rights, rob their nations' wealth, and then excuse their failings by feeding their people a steady diet of anti-Western hatred are over." (Yay!)
"We know he's been absolutely devoted to trying to acquire nuclear weapons, and we believe he has, in fact, reconstituted nuclear weapons." (Regarding Saddam Hussein's nonexistent nukes)
"In Iraq, a ruthless dictator cultivated weapons of mass destruction and the means to deliver them. He gave support to terrorists, had an established relationship with al Qaeda ..." (Lying again) 
"We also have to work, though, sort of the dark side, if you will." (With you to lead us, like Darth Vader?)
"I think they're in the last throes, if you will, of the insurgency." (Wrong again!)
"Bottom line is that we've had enormous successes [in Iraq] and we will continue to have enormous successes." (Try explaining that to ISIL, Dickie-Poo!)
"I am a deficit hawk." (Oh, really?)
"Deficits don't matter!" (Does that make you a "deficit hawk," or just an idiot?)
"I was a big supporter of waterboarding." (Yes, we know!)
"I was a big supporter of the enhanced interrogation techniques." (So was Hitler!)
"I think Barack Obama is a one-term President." (Wrong yet again!)
"I like Governor Palin. I’ve met her. I know her. She–attractive candidate." (She Yoda-like, like you!) 
If we have reason to believe someone is preparing an attack against the U.S., has developed that capability, harbors those aspirations, then I think the U.S. is justified in dealing with that, if necessary, by military force. (The Penguin explains why the U.S. can preemptively attack other nations by just pretending to believe they may eventually be a threat, some day.)

A Brief History of Waterboarding (with excerpts from the Wikipedia article)

During the Spanish Inquisition in the 1500s, a form of water torture called toca or tortura del agua was employed. It consisted of stuffing a cloth into the victim's mouth and forcing him to ingest water spilled from a jar so that he experienced the sensation of drowning.

In the mid 1500s a form of water torture was used during the Flemish Inquisition. There is depiction of torture by water in J. Damhoudère's Praxis Rerum Criminalium, Antwerp, 1556.

Agents of the Dutch East India Company used a precursor to waterboarding during the Amboyna massacre of English prisoners, which took place on the island of Amboyna in the Molucca Islands in 1623. The torture consisted of wrapping cloth around the victim's head, after which the torturers "poured the water softly upon his head until the cloth was full, up to the mouth and nostrils, and somewhat higher, so that he could not draw breath but he must suck in all the water." In one case, the torturer applied water until the victim's "body was swollen twice or thrice as big as before, his cheeks like great bladders, and his eyes staring and strutting out beyond his forehead."

After the Spanish-American War of 1898, President Theodore Roosevelt responded to revelations that the "water cure" had been employed by ordering the court-martial of General Jacob H. Smith on the island of Samar, "where some of the worst abuses had occurred." When the court-martial found only that he had acted with excessive zeal, Roosevelt disregarded the verdict and had the General dismissed from the Army.

During WWII, waterboarding was used by the Gestapo and by Japanese troops, especially the Kempeitai.

Waterboarding was designated as illegal by U.S. generals in the Vietnam War. But on January 21, 1968, The Washington Post published a controversial front-page photograph of two U.S soldiers and one South Vietnamese soldier participating in the waterboarding of a North Vietnamese POW near Da Nang. The article described the practice as "fairly common." The photograph led to one soldier being court-martialed by a U.S. military court within one month of its publication, and he was discharged from the army. Another waterboarding photograph of the same scene, referred to as "water torture" in the caption, is also exhibited in the War Remnants Museum in Ho Chi Minh City.

Based on the testimonies from more than 35,000 victims of the Pinochet regime, the Chilean Commission on Political Imprisonment and Torture concluded that to provoke a near-death experience, by waterboarding, is torture.

The Khmer Rouge at the Tuol Sleng prison in Phnom Penh, Cambodia, used waterboarding as a method of torture between 1975 and 1979. The practice was perfected by Mam Nai and Tang Sin Hean and documented in a painting by former inmate Vann Nath, which is on display in the Tuol Sleng Genocide Museum.

Evidence shows that the British Army subjected prisoners in Northern Ireland to torture and waterboarding during interrogations in the 1970s. Former Royal Ulster Constabulary (RUC) interrogators during the Troubles admitted that beatings, sleep deprivation, waterboarding, and the other tortures were systematic and, at times, sanctioned at a very high level within the force.

The South African Truth and Reconciliation Commission received testimony from Charles Zeelie and Jeffrey Benzien, officers of the South African Police under Apartheid, that they used waterboarding, referred to as "tubing" or the "wet bag technique" on political prisoners as part of a wide range of torture methods to extract information. Specifically, a cloth bag was wet and placed over victim's heads, to be removed only when they were near asphyxiation; the procedure was repeated several times. The TRC concluded that the act constituted torture and a gross human rights violation, for which the state was responsible.

All special operations units in all branches of the U.S. military and the CIA's Special Activities Division employ the use of a form of waterboarding as part of survival school (Survival, Evasion, Resistance and Escape) training, to psychologically prepare soldiers for the possibility of being captured by enemy forces. John Yoo, former Deputy Assistant Attorney General under President Bush has stated that the United States has subjected 20,000 of its troops to waterboarding as part of SERE training prior to deployment to Iraq and Afghanistan. Dr. Jerald Ogrisseg, former head of Psychological Services for the Air Force SERE School has stated in testimony before the U.S. Senate's Committee on Armed Services that there are fundamental differences between SERE training and what occurs in real world settings. Dr. Ogrisseg further states that his experience is limited to SERE training, but that he did not believe waterboarding to be productive in either setting.

Jane Mayer wrote for The New Yorker: "According to the SERE affiliate and two other sources familiar with the program, after September 11th several psychologists versed in SERE techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially 'tried to reverse-engineer' the SERE program, as the affiliate put it. 'They took good knowledge and used it in a bad way,' another of the sources said. Interrogators and BSCT members at Guantánamo adopted coercive techniques similar to those employed in the SERE program."

The difference was in the manner in which the detainees' breathing was obstructed. At the SERE school, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator ... applied large volumes of water to a cloth that covered the detainee's mouth and nose. One of the psychiatrist / interrogators acknowledged that the Agency's use of the technique is different from that used in SERE training because it is 'for real' and is more poignant and convincing.

According to the DOJ memo, the IG Report observed that the CIA's Office of Medical Services (OMS) stated that "the experience of the SERE psychologist / interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant" and that "[c]onsequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe."

In 1981 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning." The sheriff was sentenced to ten years in prison, and the deputies to four years.

The 21 June 2004 issue of Newsweek stated that the Bybee Memo, an early August 2002 legal memorandum drafted by John Yoo and signed by his boss, Jay S. Bybee, then head of the Office of Legal Counsel, described interrogation tactics against suspected terrorists or terrorist affiliates the George W. Bush administration would consider legal, was "prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative ... and was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques," citing "a source familiar with the discussions." Among the methods they found acceptable was waterboarding. Jack Goldsmith, head of the Office of Legal Counsel in the Department of Justice, later said this group was known as "the war council."

In November 2005, ABC News reported that former CIA agents claimed that the CIA engaged in a modern form of waterboarding, along with five other "enhanced interrogation techniques," against suspected members of al Qaeda.

On 20 July 2007, U.S. President George W. Bush signed an executive order banning torture during interrogation of terror suspects. While the guidelines for interrogation do not specifically ban waterboarding, the executive order refers to torture as defined by 18 USC 2340, which includes "the threat of imminent death," as well as the U.S. Constitution's ban on cruel and unusual punishment. Reaction to the order was mixed, with the CIA satisfied that it "clearly defined" the agency's authorities.

Human Rights Watch said that answers about what specific techniques had been banned lay in the classified companion document and that "the people in charge of interpreting [that] document don't have a particularly good track record of reasonable legal analysis."

On 14 September 2007, ABC News reported that sometime in 2006, CIA Director Michael Hayden asked for and received permission from the Bush administration to ban the use of waterboarding in CIA interrogations. A CIA spokesperson declined to discuss interrogation techniques, which he or she said "have been and continue to be lawful." ABC reported that waterboarding had been authorized by a 2002 Presidential finding. On 5 November 2007, The Wall Street Journal reported that its "sources confirm... that the CIA has only used this interrogation method against three terrorist detainees and not since 2003." John Kiriakou, a former CIA officer, is the first official within the U.S. government to openly admit to the use of waterboarding as an interrogation technique, as of 10 December 2007.

On 6 February 2008, the CIA director General Michael Hayden stated that the CIA had used waterboarding on three prisoners during 2002 and 2003, namely Abu Zubaydah, Khalid Sheikh Mohammed, and Abd al-Rahim al-Nashiri.

On 15 October 2008, it was reported that the Bush administration had issued a pair of secret memos to the CIA in June 2003 and June 2004 explicitly endorsing waterboarding and other torture techniques against al-Qaeda suspects. The memos were granted only after "repeated requests" from the CIA, who at the time were worried that the White House would eventually try to distance themselves from the issue. Field employees in the agency believed they could easily be blamed for using the techniques without proper written permission or authority. Until this point, the Bush administration had never been concretely tied to acknowledging the torture practices.

In December 2008, Robert Mueller, the Director of the FBI said that despite Bush Administration claims that waterboarding has "disrupted a number of attacks, maybe dozens of attacks," he does not believe that evidence obtained by the U.S. government through enhanced interrogation techniques such as waterboarding disrupted one attack.

In an interview in January 2009, Dick Cheney acknowledged the use of waterboarding to interrogate suspects and said that waterboarding had been "used with great discrimination by people who know what they're doing and has produced a lot of valuable information and intelligence."

On 1 July 2009, the Obama administration announced that it was delaying the scheduled release of declassified portions of a report by the CIA Inspector General in response to a civil lawsuit. The CIA report reportedly cast doubt on the effectiveness of the torture used by CIA interrogators during the Bush administration. This was based on several George W. Bush-era Justice Department memos declassified in the Spring of 2009 by the U.S. Justice Department.

In 2002, U.S. intelligence located Abu Zubaydah by tracing his phone calls. He was captured 28 March 2002, in a safehouse located in a two-story apartment in Faisalabad, Pakistan. One of Abu Zubaydah's FBI interrogators, Ali Soufan, wrote a book about his experiences. He later testified to Congress that Zubaydah was producing useful information in response to conventional interrogation methods, including the names of Sheikh Mohammed and Jose Padilla. He stopped providing accurate information in response to harsh techniques. Soufan, one of the FBI's most successful interrogators, explained, "When they are in pain, people will say anything to get the pain to stop. Most of the time, they will lie, make up anything to make you stop hurting them. That means the information you're getting is useless."

In December 2007, The Washington Post reported that there were some discrepancies regarding reports about the number of times Zubaydah was waterboarded. According to a previous account by former CIA officer John Kiriakou, Abu Zubaydah broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning. Kiriakou later admitted that he had no first hand knowledge of the interrogation and accused the CIA of using him to spread disinformation.

Khalid Sheikh Mohammed was waterboarded 183 times while being interrogated by the CIA. After being subjected to repeated waterboarding, Mohammed claimed participation in thirty-one terrorist plots. On 15 June 2009, in response to a lawsuit by the ACLU, the government was forced to disclose a previously classified portion of a CIA memo written in 2006. It recounted Mohammed's telling the CIA that he "made up stories" to stop from being tortured. Legal experts cast serious doubt as to the validity of Mohammed's "confessions" as being false claims, and human rights activists raised serious concerns over the "sham process" of justice and use of torture.

During a radio interview on 24 October 2006, with Scott Hennen of radio station WDAY, Vice President Dick Cheney agreed with the use of waterboarding. The administration later denied that Cheney had confirmed the use of waterboarding, saying that U.S. officials do not talk publicly about interrogation techniques because they are classified. White House Press Secretary Tony Snow claimed that Cheney was not referring to waterboarding, despite repeated questions refused to specify what else Cheney was referring to by a "dunk in the water", and refused to confirm that this meant waterboarding.

On 13 September 2007, ABC News reported that a former intelligence officer stated that Khalid Sheikh Mohammed had been waterboarded in the presence of a female CIA supervisor.

On 2 June 2010, while speaking to the Economic Club of Grand Rapids, Michigan, former President Bush publicly confirmed his knowledge and approval of waterboarding Mohammed, saying "Yeah, we waterboarded Khalid Sheikh Mohammed...I'd do it again to save lives."

President Barack Obama banned the use of waterboarding and several other interrogation methods in January 2009. He reported that U.S. personnel must stick to the Army Field Manual guidelines. In early April 2009, the Obama administration released several classified Justice Department memos from the George W. Bush administration that discussed waterboarding.

Obama opposes the idea of legally prosecuting CIA personnel or CIA related people that committed waterboarding based upon legal advice provided by superiors. The American Civil Liberties Union has criticized his stance. In early April 2009, news reports stated that Obama would support an independent investigation over the issue as long as it would be bipartisan. On 23 April 2009, White House Press Secretary Robert Gibbs stated that the administration had changed its position and now opposes such an idea. The topic has been subject to heated internal debate within the White House.

Republican Senator John McCain, in a Washington Post opinion piece, disputed that waterboarding helped locate Osama bin Laden, saying: "I asked CIA Director Leon Panetta for the facts, and he told me the following: The trail to bin Laden did not begin with a disclosure from Khalid Sheik Mohammed, who was waterboarded 183 times. The first mention of Abu Ahmed al-Kuwaiti — the nickname of the al-Qaeda courier who ultimately led us to bin Laden — as well as a description of him as an important member of al-Qaeda, came from a detainee held in another country, who we believe was not tortured. None of the three detainees who were waterboarded provided Abu Ahmed's real name, his whereabouts or an accurate description of his role in al-Qaeda."

In fact, the use of 'enhanced interrogation techniques' on Khalid Sheik Mohammed produced false and misleading information. He specifically told his interrogators that Abu Ahmed had moved to Peshawar, got married and ceased his role as an al-Qaeda facilitator — none of which was true. According to the staff of the Senate intelligence committee, the best intelligence gained from a CIA detainee — information describing Abu Ahmed al-Kuwaiti's real role in al-Qaeda and his true relationship to bin Laden — was obtained through standard, noncoercive means.

U.S. Attorney General Eric H. Holder Jr. announced on 30 August 2012 that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the interrogations carried out by the C.I.A. The Justice Department closed its investigation of the CIA's use of severe interrogation methods, because investigators said they could not prove any agents crossed the lines authorized by the Bush administration in the "war on terror" program of detention and rendition. According to the New York Times the closing of the cases means that the Obama administration's limited effort to scrutinize the counterterrorism programs, such as waterboarding, carried out under President George W. Bush has come to an end.

In October 2014, John Cantlie reported that ISIL had waterboarded prisoners, "Some of us who tried to escape were waterboarded by our captors, as Muslim prisoners are waterboarded by their American captors."

All nations that are signatory to the United Nations Convention Against Torture have agreed they are subject to the explicit prohibition on torture under any condition. This was affirmed by Saadi v. Italy in which the European Court of Human Rights, on 28 February 2008, upheld the absolute nature of the torture ban by ruling that international law permits no exceptions to it. The treaty states "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Additionally, signatories of the Universal Declaration of Human Rights are bound to Article 5, which states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Many signatories of the convention have made specific declarations and reservations regarding the interpretation of the term "torture" and restricted the jurisdiction of its enforcement. However, UN High Commissioner for Human Rights, Louise Arbour, stated on the subject: "I would have no problems with describing this practice as falling under the prohibition of torture," and that violators of the UN Convention Against Torture should be prosecuted under the principle of universal jurisdiction.

Bent Sørensen, Senior Medical Consultant to the International Rehabilitation Council for Torture Victims and former member of the United Nations Committee Against Torture has said: "It's a clear-cut case: Waterboarding can without any reservation be labeled as torture. It fulfils all of the four central criteria that according to the United Nations Convention Against Torture (UNCAT) defines an act of torture. First, when water is forced into your lungs in this fashion, in addition to the pain you are likely to experience an immediate and extreme fear of death. You may even suffer a heart attack from the stress or damage to the lungs and brain from inhalation of water and oxygen deprivation. In other words there is no doubt that waterboarding causes severe physical and/or mental suffering– one central element in the UNCAT's definition of torture. In addition the CIA's waterboarding clearly fulfills the three additional definition criteria stated in the Convention for a deed to be labeled torture, since it is 1) done intentionally, 2) for a specific purpose and 3) by a representative of a state – in this case the US."

Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency, concurred by stating, in a hearing before the Senate Armed Services Committee, that he believes waterboarding violates Common Article 3 of the Geneva Conventions.

In a review of The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, by Jane Mayer, The New York Times reported on 11 July 2008, that "Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes," that the techniques applied to Abu Zubaydah were "categorically" torture, and that Abu Zubaydah had told investigators that, contrary to what had been revealed previously, "he had been waterboarded at least 10 times in a single week and as many as three times in a day."

Shortly before the end of Bush's second term news media in other countries were opining that under the United Nations Convention Against Torture, the U.S. is obligated to hold those responsible to account under criminal law.

The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment–Manfred Nowak–on 20 January 2009, remarked on German television that, following the inauguration of Barack Obama as new President, George W. Bush has lost his head of state immunity and under international law the U.S. is now mandated to start criminal proceedings against all those involved in violations of the UN Convention Against Torture. Law professor Dietmar Herz explained Novak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.

The United States Supreme Court in Sosa v. Alvarez-Machain, said that the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law." However, the United States has a historical record of regarding water torture as a war crime, and has prosecuted as war criminals individuals for the use of such practices in the past.

In 1947, the United States prosecuted a Japanese civilian who had served in World War II as an interpreter for the Japanese military, Yukio Asano, for "Violation of the Laws and Customs of War," asserting that he "did unlawfully take and convert to his own use Red Cross packages and supplies intended for" prisoners, but, far worse, that he also "did willfully and unlawfully mistreat and torture" prisoners of war. Asano received a sentence of 15 years of hard labor. The charges against Asano included "beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward." The specifications in the charges with regard to "water torture" consisted of "pouring water up [the] nostrils" of one prisoner, "forcing water into [the] mouths and noses" of two other prisoners, and "forcing water into [the] nose" of a fourth prisoner.

Following the attacks of 11 September 2001, several memoranda, including the Bybee memo, were written analyzing the legal position and possibilities in the treatment of prisoners. The memos, known today as the "torture memos," advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.

In its 2005 Country Reports on Human Rights Practices, the U.S. Department of State formally recognized "submersion of the head in water" as torture in its examination of Tunisia's poor human rights record.

On 6 September 2006, the U.S. Department of Defense released a revised Army Field Manual entitled Human Intelligence Collector Operations that prohibits the use of waterboarding by U.S. military personnel. The department adopted the manual amid widespread criticism of U.S. handling of prisoners in the War on Terrorism, and prohibits other practices in addition to waterboarding. The revised manual applies only to U.S. military personnel, and as such does not apply to the practices of the CIA. Nevertheless Steven G. Bradbury, acting head of the U.S. Department of Justice (DOJ) Office of Legal Counsel, on 14 February 2008 testified: "There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

In addition, both under the War Crimes Act and international law, violators of the laws of war are criminally liable under the command responsibility, and they could still be prosecuted for war crimes. Commenting on the so-called "torture memoranda" Scott Horton pointed out "the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous 'Night and Fog Decree.'"

Michael Mukasey's refusal to investigate and prosecute anyone that relied on these legal opinions led Jordan Paust of the University of Houston Law Center to write an article for JURIST stating: "it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!"

On 22 February 2008 senator Sheldon Whitehouse made public that "the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies."

Both houses of the United States Congress approved a bill by February 2008 that would ban waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for Fiscal Year 2008. As he promised, President Bush vetoed the legislation. His veto applied to the authorization for the entire intelligence budget for the 2008 fiscal year, but he cited the waterboarding ban as the reason for the veto. Supporters of the bill supporters lacked enough votes to overturn the veto.

On 22 January 2009 President Barack Obama signed an executive order that requires both U.S. military and paramilitary organizations to use the Army Field Manual as the guide on getting information from prisoners, moving away from the Bush administration tactics.

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