[UPDATE: Shertaugh at IsThatLegal? posted about the Fisher case–also in Mississippi and four years after the White case below–in which the Mississippi Supreme Court called the “water cure” (waterboarding), torture.]

The following rejection of waterboarding comes from the Supreme Court of Mississippi in 1922, during the Jim Crow era:

Gerrard White, an 18-year-old black youth, was threatened and waterboarded by a group of armed white planters into “confessing” to the murder of a white shopkeeper in Mississippi in 1921. White was convicted and sentenced to death. He appealed. Describing waterboarding as “brutal treatment” and “barbarous circumstances,” the Mississippi Supreme Court ruled in 1922 that all the “confessions” obtained by the white planters were inadmissible. Mind you, the lower courts had already excluded the “confession” obtained during the waterboarding itself. Not even the state’s lawyer dared to argue that one was admissible. Rather, the case turned on whether two other“confessions” obtained by the planters minutes before and a few days after the waterboarding were also inadmissible.[1] The Court ruled all the confessions inadmissible.

Is it possible that a Jim Crow Mississippi Supreme Court—with its racist language, in a decision dealing with a black youth accused of murdering a white man—rhetorically condemned the use of waterboarding more readily than did our current Attorney General, Michael Mukasey?

EXCERPT:

White v. State, 129 Miss. 182 (1922).

Holden, J., delivered the opinion of the court.
…

The appellant Gerrard White, a negro boy eighteen years of age, employed as a farm hand, was arrested by the sheriff during the day, and taken to the scene of the murder, where it appears he was released, but was again taken into custody by a Mr. Gilbert, a planter, who took him into the store where the dead man lay, and, after locking the door, proceeded to obtain a confession from him. The store was a small building, and there were gathered in the building several other white men, plantation owners and managers, some of whom were armed. Among the dozen white men in the store was Mr. Gilbert, who testified that the appellant told him, alone, in the corner of the store, that he (appellant) was present and participated in the killing of Mr. Gross; that he (appellant) did not strike any of the blows, but saw Buck Kenard strike Mr. Gross with an ax, and that Ben Pickens struck him with a hatchet; that the purpose of the killing Was robbery, etc. None of the white men in the store testified to this confession except Gilbert. A few minutes after this alleged confession the hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant’s breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed that he knew where the money was, and told them that it was out at the “dredge ditch.” They then took the appellant to the dredge ditch to find the money, but there was no money found there or anywhere else so far as this record shows. Following this appellant was taken to the Greenville jail and in a few days thereafter the same Mr. Gilbert and Mr. Robertson visited appellant at the jail, and they testified that appellant again voluntarily confessed the crime while in his cell at the jail.

Now let us see what were the facts and circumstances under which the first confession at the store was made. Here was an ignorant negro boy, arrested and taken from his work in the field, and brought to the scene of the horrible murder. The sheriff had questioned him with reference to his guilt and whereabouts, and apparently concluded that he was not guilty, and thereupon released him, and after he was released, or, according to one view of this record, after he was turned over to a deputy, he fell into the hands of Mr. Gilbert and the other infuriated planters and plantation managers gathered there at the scene of the murder. They took him into the store building, locked the door behind him, and there, in the presence of the bloody corpse so foully murdered but a few hours before, and with the crowd of armed white men there assembled for the purpose of obtaining a confession, he was asked to confess, and under these circumstances he told Mr. Gilbert, and it seems that no one else heard it, about his connection with the crime, and who participated in it. Following this, a few minutes afterwards, the brutal treatment described as the “water cure” was administered to him, which succeeded in obtaining a second confession. It is well to state at this juncture that the negro boy denied confessing to the killing until after he was threatened, frightened, and mistreated as described by Mr. Gilbert himself. The word of the helpless negro boy was of no avail to him; though a human being, his situation was indeed hopeless and fearful…

We do not hesitate to say that a confession obtained under these conditions and circumstances is not free and voluntary…

At all events the confessions at the store were involuntary, and it may be that the one at the jail was also involuntary because induced by the same wrongful influence which induced the previous ones…

Reversed and remanded.

---

[1] Gerrard White had made three “confessions,” the first while cornered by the apparent leader of the armed white planters. Minutes later, the planters waterboarded White and extracted the second “confession.” White was jailed (seemingly on the basis of these first two “confessions”) and, days later, was visited by two men, one of whom had stood on White’s neck during the waterboarding. At the jail, the men extracted yet another “confession.”

A Timeline of Torture Flip-Flopping:

1988: President Reagan asks Senate to give advice and consent to his signature of the UN Convention against Torture.[1]

1993: Democrat-controlled Senate approves bill containing statute criminalizing torture by a vote of 95 to 4. President Clinton signs it into law in 1994.[2]

1994: The US ratifies the UN Convention against Torture, signed by President Reagan in 1988.[3]

1996: Republican-controlled Senate unanimously approves War Crimes Act, criminalizing torture and other violations of the Geneva Conventions. President Clinton signs it into law.[4]

2005: Republican-controlled Senate passes the Detainee Treatment Act by a vote of 90-9, banning cruel, inhuman, and degrading treatment of detainees under any type of US custody anywhere. President Bush issues a signing statement declaring he may ignore the law.[5]

2006: Republican Senators lead negotiations on the Military Commissions Act of 2006, which is passed, gutting much of the War Crimes Act. The vote is 65-34, including 12 “Yeas” from Democrats.[6]

2007: Democrat-controlled Senate gives advice and consent by a vote of 53-40 to Mukasey as attorney general, a man who publicly declares his wish to avoid creating legal trouble for waterboarders (read torturers) and those who approved waterboarding (read torturers).[7]

---

[1] President Ronald Reagan signed the UN Convention against Torture on April 18, 1988, stating, “[The Convention] marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.”

 

[2] The Torture Statute criminalizing torture was enacted by Congress in 1994 and signed by President Clinton into law on September 13, 1994. The Senate voted 95-4 to pass the omnibus bill containing the torture criminalization on November 19, 1993. The measure was intended to bring the US into compliance with the UN Convention against Torture, which was ratified on October 21, 1994.

[3] Id.

[4] A Republican controlled Congress enacted the War Crimes Act in 1996. The Senate passed it by unanimous consent. President Clinton signed it into law August 21, 1996. The War Crimes Act criminalized violations of the Geneva Conventions to pave the way for prosecutions of foreign officials who tortured Americans.  The original bill was sponsored by staunch conservative Walter Jones Jr. (R-NC) in the House during the Republican-controlled Congress.  DoD’s general counsel declared full support for the bill and even suggested making the list of war crimes longer.  The Pentagon, opting to set a high bar for conduct, did not oppose the fact that the War Crimes Act applied to actions by US personnel.

[5] A Republican controlled Congress banned cruel, inhuman, and degrading treatment to all detainees under US custody everywhere. The law also limited US military interrogations (though not those of the CIA) to methods outlined in the Army Field Manual. The vote was 90 to 9. President Bush purported to reserve the right to ignore the law through a signing statement.

[6] A Republican controlled Congress gutted most of the War Crimes Act by enacting the Military Commissions Act (i.e. Torture Law) on September 29, 2006. Negotiation regarding the Torture Law were concentrated in three Republican Senators. President Bush signed the Torture Law on October 17, 2006.

[7] A Democrat controlled Senate approved Mukasey for attorney general on November 8, 2007, without a filibuster attempt despite his failure to commit to meaningfully uphold either the Torture Statute or the War Crimes Act as evidenced by his refusal to declare waterboarding illegal.

The New York Times editorial this Sunday, titled “Abdicate and Capitulate,” states, “Democrats offer excuses for their sorry record, starting with their razor-thin majority. But it is often said that any vote in the Senate requires more than 60 votes — enough to overcome a filibuster.”

Apparently, a filibuster on Mukasey was not off the table, as Talking Points Memo reports here. With only 53 “Yeas” for Mukasey, a senator with a conscience capable of being shocked could have stopped the Torture Nominee. So, why didn’t someone step forward to stop the pro-Mukasey, pro-torture vote?

Hypocrisy.

The nation’s lawmakers chose to place politics above the law. Wanting to score a rhetorical point before engaging with President Bush in a debate about the Iraq and Afghanistan wars, the Democrats let the whole torture thing slide. Mind you, the deal struck was not a compromise about anything substantive in relation to those wars. Rather, as Talking Points Memo explains, it appears to have been a ploy to grant the Democrats a slight debater’s edge.

Is it too much to ask the party that controls Congress to make some headway in stopping the war, without having to condone torture in the process? The Senate leadership, in preparing to confront the president over one of the most unpopular wars in US history, cut a “deal” with Republicans to send half a trillion dollars to the military to show themselves to be pro-troops. Apparently, vowing to withdraw troops from combat is not enough of a “pro-troops” debater’s edge. Or maybe the Democrats are just lousy debaters. In return, Dems granted the Republicans Mukasey as a chief prosecutor, the man who has expressed a desire to shield the Bush administration from criminal prosecution for war crimes.

To re-cap: Dems get to send $500 billion to the military before taking an anti-war position on the most unpopular war led by the most unpopular president in nearly 40 years. Republicans get a get-out-of-jail-free card for war crimes.

Who advises them on these deals anyway? Karl Rove in a donkey suit?

The following entry is taken from a press release by Torture Abolition and Survivors Support Coalition International. All quotes are from survivors of torture, and members of that coalition.

Nasim, a survivor of waterboarding from Ethiopia, who does not want her last name in the press, says that she is “brought back to the torture chambers every time I hear the sound of splashing water. In the shower, when water hits my face, I must remind myself that I am not strapped to a board and that my lungs will not fill up with water until I lose consciousness. Though it has been years, the fear and pain are still there. There can be no debate that waterboarding is torture.”

Anthony Ibeagha, a survivor from Nigeria, said that “this confirmation is disrespectful to me as a person and only exacerbates the pain of torture which has come to be my life.”

—

Dianna Ortiz, a US nun and survivor of torture in Guatemala, said that “the Senate may have substituted the name Mukasey, but they voted for torture. What congress and Judge Mukasey have said loudly and clearly is that they have no concern for those of us who were tortured. First we were betrayed by our torturers; now we are betrayed by the government of the United States. Those who voted for torture will go unconcerned to their dinners and cocktail parties, while we go home to our nightmares.”

Sister Ortiz wrote of her experience watching the Senate Judiciary Committee’s vote on Mukasey here: http://torturelaw.org/blog_post.php?post=41

The Senate vote for torture (Mukasey) is in.

TORTURE APOLOGISTS (boycott them here!):

• All 46 Republicans present voted for torture. Three were absent [see “WEASELS”].

• Six Democrats [Bayh (D-IN), Carper (D-DE), Feinstein (D-CA), Landrieu (D-LA), Nelson (D-NE), and Schumer (D-NY)], plus Lieberman (I-CT) also voted for torture.

BYSTANDERS:

• Seven senators did not bother to vote, most notable among these, Senator McCain (R-AZ), torture survivor, and all of the Democratic senators who are candidates for president. Sure, candidates Biden, Clinton, Dodd, and Obama all talked the talk of opposing Mukasey, but why should they ruin their “electability” on something like torture when they can say the words of opposition to torture (like Bush does) and take no meaningful action? Way to learn a lesson from your opponents, Dems!

—

One last thought that occurred to me while watching “Rendition” tonight: maybe the Democrats haven’t gotten serious about torture because the Clinton administration is guilty of it also. Perhaps everybody fears felony prosecutions. After all, the rendition program did start under Clinton. Exposing the “progressive” party’s own dirty hands would be remarkably inconvenient politically, no?

I know what you’re thinking: let’s distinguish the supposed “rendition to justice” program under Clinton from the “rendition from justice (to torture)” program under Bush. But do you believe the lines were ever drawn so neatly? Besides, my friends, no matter what, Clinton did create a “rendition to justice” program, one that sowed the seeds of lawlessness. It created a precedent that lay around like a loaded gun for Bush.

Having witnessed so many squandered opportunities to stop the torture program, there can no longer be any doubt that the Democrats are a pro-torture party. Sound exaggerated? Just try convincing me that they are an anti-torture party. The nail in the coffin: there were fewer than 60 “Yeas” in the Senate today. That means that even the 40 “Nays” were cowards for not filibustering.

Shame on all of Congress and all of us. We are officially an atrocity society. And with Sarkozy getting a cozy reception in D.C., I’ll take the opportunity to finally just come out and say it: J’accuse!

—

Jennifer Harbury is a Harvard Law School J.D. graduate from 1978. In 1992, her husband Everardo (Efrain Bamaca Velasquez) was disappeared and tortured by the CIA and the Guatemalan military. She still seeks justice. But the story of CIA torture and secret prisons is older still than hers and her husband’s. We have been an atrocity society for a long time. The difference is that now, at last, we embrace it.

On our first day of law school in 2005, Dean Elena Kagan told us that in the olden days, they used to say something horrible during the admissions info sessions for Harvard Law School: “Look to your left, and look to your right. One of you will be gone by next fall.” This was meant put us on notice that it was a dog eat dog world out there.

But today, we look to the left, and sure enough: there is nobody there. The left has disappeared. To our right, though, sits war criminal Alberto Gonzales, Harvard Law School alum. And torture apologist (ok, let’s face it — advocate) Alan Dershowitz, Harvard Law School professor. The list goes on.

These days, it’s a dog eat detainee world out there.

YEAs: 53

NAYs: 40

Not Voting: 7

No surprise: the Democrats failed to deliver on a fundamental principle. For those who want to stop the U.S. torture program, not all is lost, however. Let the whole episode be a warning to would-be torturers that the whole world knows of their deeds, and that the discussions of criminal liability are no longer happening only in the corners of coffee houses among lefty campus groups.

That talk is now on the front page of the NY Times. Former military and CIA officials have come out against the torturers.

For those who insist on disappearing people into secret prisons to be tortured: know that one day the law will catch up with you. It ‘s already getting close.

Senators Schumer and Feinstein both think we can do no better than Mukasey under Bush. A resigned Feinstein declared, “Judge Mukasey is the best nominee we are going to get from this administration.” There is no justification for the Senate setting its expectations so low. A senator should evaluate a nominee on his or her merits, not on who the president might or might not send next. Besides, and most importantly, Schumer and Feinstein missed the big picture.

Here is why Mukasey’s nomination presents the biggest chance in years to stop the U.S. torture program:

The risk of criminal liability is the only thing that has put the brakes on the U.S. torture program to any serious degree. After the Supreme Court applied Geneva Common Article 3 protections to the “war on terrorism” detainees in Hamdan (June 2006), the resulting risk of war crimes liability for violators of Geneva (see War Crimes Act) single-handedly did what nothing previously had been able to do: it shut down the CIA secret prisons. Nervous CIA interrogators, fearing prosecution, refused to go on with the program. Unfortunately, the shutdown lasted less than a month, however, because Congress unforgivably caved during election season in September 2006, and rewarded President Bush with the Military Commissions Act of 2006, a rather remarkable response to Bush’s then recent public acknowledgement that the U.S. had been disappearing detainees into secret prisons and torturing them. (Acknowledged with somewhat less accurate vocabulary). The Military Commissions Act of 2006, with its decriminalization of non-grave breaches of the Geneva Conventions (quite possibly the functional equivalent of an illegal amnesty, but that’s for another post) and its allotment of interpretive authority of Geneva to the president, made the Bush administration and the CIA personnel feel secure enough to reopen their secret prisons.

Throughout the episode, fear of criminal prosecution, or lack thereof, was the key. Jack Goldsmith, former head of the OLC, discusses in The Terror Presidency how Addington, Gonzales, and others have always been obsessed with the possibility of facing criminal prosecutions for torture. So much so, that Rumsfeld would talk about the need to combat “lawfare,” a term he took from the writings on universal jurisdiction of Air Force Brigadier General Charles Dunlap. If there’s been one reliable anti-torture motivator in the Bush administration, it’s been the criminal law. Proverbial flows of potential criminal liability have been accompanied by ebbs of the U.S. torture program.

Fastfoward to Mukasey. The frontpage New York Times story from November 1, 2007, marked the start of the first major public discussion of the Bush administration’s potential criminal liability for torture since Hamdan. This because the post-Hamdan discussion was flawed, the mainstream media buying into the administration’s spin, in which it raised the specter of Democratic witch-hunts of “well-meaning” CIA interrogators, who had but laid a gentle finger upon detainees. The Bush administration used this specter to railroad the Military Commissions Act through Congress, and then to interpret it how they saw fit.

But Congress shouldn’t have fallen for the act. Politically, no U.S. prosecutor would go after the CIA unless real cases were involved. If those cases arise, then they deserve to be investigated. Either way, as commentators like Prof. Jack Balkin have noted, the CIA agents then as now may have a defense under U.S. law to prosecution since they seem to have ostensibly relied on official readings of the law (OLC opinions) for their actions. A note of caution to would-be CIA torturers, however: as Jack Goldsmith points out in his book, that reliance must be reasonable, and reliance on clearly flawed opinions would not count, and some of the torture memos might meet this standard. Also, under international law, such a defense would almost definitely not be admitted anyway, so universal jurisdiction cases would still threaten.

Regardless, this story has always really been about the criminals in the White House rather than those in the CIA Salt Pits of Afghanistan or elsewhere. Both are guilty of torture, but it is the former that are now scrambling to cover their behinds in the Mukasey debate. Why? Because the Mukasey debate is different than the Hamdan one. This time, the story has spun out of the Bush administration’s control. Waterboarding is the issue, and it is so clearly torture, and torture is criminal, and conspiracy to commit torture is criminal (as Senator Cardin told Mukasey), and everybody knows these days that Bush and Co. ordered it nonetheless.

If there were ten votes (Democratic or otherwise) against Mukasey in Committee, not only would that block the nomination, it would demonstrate that Congress is serious about calling the CIA’s methods criminal. Faced with a “no” vote, Bush would have to either recess appoint Mukasey or subject another person to a confirmation proceeding, in which they would certainly be asked the same questions on waterboarding, war crimes, and the like (i.e. the Bush nightmare: the creation of an anti-torture litmus test). Any new nominee would either have to accept that the Bush administration is seemingly liable for conspiracy to commit torture, or face the Senate’s big “no.” Democracy at work! Checks and balances! Fancy that.

The message sent to federal prosecutors, the administration, and the public would be loud and clear: there will be no more torture without accountability. This would an immediate chilling effect on U.S. torturers everywhere, even if investigations and prosecutions never panned out.

The waterboarding question has temporarily put the Democrats in a position to checkmate the administration on torture. Without an attorney general to rubber stamp their torture program—or with only a de-legitimated recess-appointed one—the Bush administration would have had to move to Plan C: mass presidential torture pardons when shamefully bowing out of office. (Don’t rule that out, by the way. In fact, expect no less).

Had Schumer and Feinstein stood strong, perhaps the CIA would have gotten the jitters again à la Hamdan, and the secret prisons might have closed once more. But alas, Schumer and Feinstein not only lack principle, apparently they lack tactical thinking. Never throw away a checkmate that stares you in the face.

The loss entailed by Schumer’s and Feinstein’s decisions is much greater than that of a mere augmentation of torture apology in the echo chamber of the national security discourse. The Mukasey confirmation was the best chance that has come up in years stop the U.S. torture policy. Perhaps today, as the torture survivors who are planning to attend the confirmations look on, Schumer and Feinstein will have the courage, and the brains, to change their minds and vote to stop torture.

One thing is for certain: they may think Mukasey is the best they will get, but Schumer and Feinstein are not the best we will get. We will demand more, and we will work to boycott their fundraising efforts and remember to vote them out of office at the next opportunity. In the meantime, they should be ashamed, and they should be shamed. The demonstration outside Congress today and the protest gathered outside Schumer’s New York City office in silent vigil to deliver written testimonies of waterboarding survivors to his staffers show that we will not let them forget their complicity.

***

CURRENT TALLY

• In Favor of Moral & Legal Ambiguity on Torture
  • Schumer (NY)
  • Feinstein (CA)

• Opposed to Mukasey and Torture
  • Whitehouse (RI)
  • Biden (DE)
  • Durbin (IL)
  • Kennedy (MA)
  • Leahy (VT)
  • Feingold (WI)
  • Cardin (MD)
  • Kohl (WI)

Note: Since the Senate Judiciary Republicans are all expected to vote for Mukasey, even the ones who theoretically are against torture (e.g. Specter and Graham), we count here only Senate Judiciary Democrats, the members of that oh so disappointing party.