If waterboarding was a war crime when the Japanese did it to my father, why isn't it a war crime anymore?...

Ernest A. Canning Byon 4/6/2009, 9:39am PT

Guest Blogged by Ernest A. Canning

In my previous piece, "Prosecute or Perish", here at The BRAD BLOG --- in which I argued that criminal investigations and, where appropriate, prosecutions of the Bush/Cheney cabal for war crimes was not merely mandated by our treaty obligations but vital to preserving our constitutional democracy and the rule of law --- I referenced an allegation by Seymour Hersh that the Bush regime had created a highly secretive "executive assassination ring" which reported only to Dick Cheney's office and which had "been going into countries, not talking to the ambassador or the CIA station chief, and finding people and executing them and leaving."

How can a nation that calls itself just convict the Japanese officers who waterboarded my father, yet refuse to so much as investigate high officials from our own government who authorized the same war crime and, as newly alleged, even much worse...

On March 31, 2009 Hersh was interviewed by Amy Goodman on Democracy Now!. The segment begins with Wolf Blitzer's March 30, 2009 interview of John Hannah, Cheney's former national security advisor [emphasis added]:

BLITZER: Is there a list of terrorists, suspected terrorists out there who can be assassinated? Is there a list of terrorists, suspected terrorists out there who can be assassinated? HANNAH: There is clearly a group of people that…have committed acts of war against the United States, who are at war with the United States, or are suspected of planning operations of war against the United States, who authority is given to the troops in the field and in certain war theaters to capture or kill those individuals. That is certainly true.

Hannah implied that this was limited to Iraq, Afghanistan and Pakistan. Hersh says it was far broader; that the assassination wing of the Joint Special Operations Command (JSOC), in direct violation of an executive order issued by President Gerald Ford, carried out assassinations in at least a dozen countries, not only in the Middle East, but in Central and South America. Hersh told Amy Goodman that the JSOC assassination wing would clear the list through Cheney's office; that, at least initially, Cheney was directly involved.

Hersh expressed concern about going after people who were not involved in combat. He pointed not only to collateral damage but to a Bush administration 2002 internal study which suggested at least one-half of the people held in Guantanamo were innocent. Jane Mayer's 2006 New Yorker piece, "The Hidden Power," cited in "Prosecute or Perish," relied upon a Seton Hall study that produced more dramatic numbers. It revealed a Guantanamo detainee population, 55% of whom had never committed a hostile act and only 8% of which were allegedly connected to al-Qaeda. The vast majority, 86%, were captured either by Pakistan or the Northern Alliance at a time when the U.S. was offering huge bounties for "suspected" terrorists.

Late last month, a complaint was filed in a Spanish court seeking to hold high Bush administration officials accountable for possible war crimes. While those officials included David Addington, Cheney's former chief of staff, they did not include either George W. Bush or Cheney. This was covered by Keith Olbermann with Law Professor Jonathan Turley who suggested during a March 30, 2009 segment of Countdown that the Spanish court's action afforded President Obama with a window of opportunity to "take the high road" by appointing a special prosecutor so that the United States could undue the damage inflicted on our reputation by the Bush/Cheney torture regime.

Commenting on a Washington Post article, which revealed that no useful intelligence was extracted from Abu Zubaida after he was waterboarded, Turley said it has been "long known" that torture produces "absolute garbage….The only thing we got out of this was the condemnation of the ages."

I can personally attest to the accuracy of Turley's observations. In early 1942, my father was arrested by the Japanese Kempetai in Shanghai. He was transported to "Bridge House," an infamous torture chamber, where he was kept for several months in a cage whose dimensions were so small that he could neither lie down nor stand. Midway through his captivity, he was interrogated; asked to sign a confession he was a British agent. He refused for two reasons. First, it wasn't true. Second, my father believed he was being asked to sign his own death warrant.

My father was taken to another room where he was pinned to a wooden platform by several soldiers. One soldier held a sponge over his mouth and nose. Another soldier poured water onto the sponge. My father could hold his breath only so long, after which water ran up his nostrils, down his throat, and into his lungs. He described the process to me as "exquisitely painful."

After multiple lapses of consciousness, my father signed the "confession." The next day, his tormentors, unsatisfied with his wobbly signature, returned to his cell. They offered him the choice of signing again or undergoing another round of waterboarding. He signed. Death was preferable to torture.

Fortunately, especially for me since I would have never been born, they didn't execute him. My father spent the remainder of the war in Japanese internment camps; met my mother in one; walked out when the war ended. In 1948 his testimony at the War Crimes Tribunal in Hong Kong helped to convict several Japanese officers.

Appearing above the entrance to the U.S. Supreme Court are the words, "Equal Justice Under Law." Those words are not an empty slogan. They form the essence of who we are. Waterboarding was a war crime then, when committed by the Japanese, and it is a war crime now, when committed by Americans. Cheney publicly admitted he authorized waterboarding.

If our government fails to abide by its legal obligation to initiate a criminal investigation, it does more than open our nation to a charge of hypocrisy. Such failure amounts to a betrayal of the very essence of who we are-a people and a nation committed to the principle of equal justice under law.

UPDATE 4/7/09: Via Democracy Now!: "Scott Horton is reporting that Senate Republicans are threatening to filibuster two top Justice Department nominees if the Obama administration releases secret Bush administration memos that authorized the torture of prisoners. The nominees are Dawn Johnson as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel. Horton writes, 'It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.'" Here's Horton's full coverage...

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored a Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He's also a Vietnam vet (4th infantry, Central Highlands 1968).



