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United States law
The United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) said that the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law."[133] However, the United States has a historical record of regarding waterboarding as a war crime, and has prosecuted as war criminals individuals for the use of the practice in the past. In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for carrying out various acts of torture including kicking, clubbing, burning with cigarettes and using a form of waterboarding on a U.S. civilian during World War II. Yukio Asano received a sentence of 15 years of hard labor.[74] The charges of Violation of the Laws and Customs of War against Asano also included "beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward."[134] In addition, the European Court of Human Rights ruled in February 2008 that local considerations do not negate the absolute torture prohibition under international law.[123]
Following the attacks of September 11, 2001, several memoranda,[135][136] 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,"[137] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.[138] 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.[139]
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,[140] and critics of waterboarding draw parallels between the two techniques, citing the similar usage of water on the subject.
On September 6, 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.[141] Nevertheless Steven G. Bradbury, acting head of the US Department of Justice (DOJ) Office of Legal Counsel, on February 14, 2008 testified: |
