by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.
Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.
The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.
To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.