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Cheney’s claim that the U.S. did not prosecute Japanese soldiers for waterboarding

(William B. Plowman/NBC News/Handout via Reuters)

Chuck Todd: “When you say waterboarding is not torture then why did we prosecute Japanese soldiers?”

Former vice president Richard B. Cheney: “Not for waterboarding. They did an awful lot of other stuff.  To draw some kind of moral equivalent between waterboarding judged by our Justice Department not to be torture and what the Japanese did with the Bataan Death March, with slaughter of thousands of Americans, with the rape of Nanking and all of the other crimes they committed, that’s an outrage. It’s a really cheap shot, Chuck, to even try to draw a parallel between the Japanese who were prosecuted for war crimes after World War II and what we did with waterboarding three individuals — all of whom are guilty and participated in the 9/11 attacks.”

exchange on NBC’s “Meet the Press,” Dec. 14, 2014

This exchange is an excellent example of political misdirection. “Meet the Press” host Chuck Todd asked the former vice president about why the United States prosecuted Japanese soldiers for waterboarding, and Cheney dismissed the question as “a cheap shot” and not worthy of comparison. The Japanese, he said, were guilty of horrific crimes in World War II that led to mass deaths.

But note that Todd’s question is about prosecutions — not executions. And therein lies a difference.

The Facts

At the International Military Tribunal for the Far East (IMTFE), which lasted from April 29, 1946 to Nov. 12, 1948,  there were indeed Japanese war criminals who were tried and ultimately executed for some of the events mentioned by Cheney. Akira Muto and Iwane Matsui commanded troops that commited atrocities at Nanking, including the rapes of 20,000 women and the slaughter of 300,000 people; foreign minister Koki Hirota was also held responsible for being “well informed about the massacre.” Heitaro Kimura forced prisoners of war to do extremely hazardous work, including the construction of a railway between Burma and what is now Thailand.

The judgment of the IMTFE included a description of the type of torture known as “the water treatment,” in which “the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness,” according to “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts,” a 2007 article in the Columbia Journal of Transnational Law, by Judge Evan Wallach. (The article is generally behind a paywall, but a plain type version can be found on the Internet.)

But as Wallach makes clear, Japanese soldiers other than the Class A war criminals were also prosecuted for mistreatment of American prisoners—and water torture “loomed large in the evidence presented against them.”  For instance, at the Yokohama Class B and C War Crimes Trials in 1947, Yukio Asano, an interpreter, faced a charge of violating “the laws and customs of war” through these specific acts:

Specification 1: That in or about July or August, 1943, the accused Yukio Asano, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him, by fastening him on a stretcher and pouring water up his nostrils.
Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O. Cash and Munroe Dave Woodall, American Prisoners of War, by beating and kicking them, by forcing water into their mouths and noses, and by pressing lighted cigarettes against their bodies.
Specification 5. That between 1 April, 1943 and 31 December, 1943, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him, and by fastening him head downward on a stretcher and forcing water into his nose.

Asanao was sentenced to 15 years confinement at hard labor.

First Lt. Seitara Hata, Sgt. Major Takeo Kita and Sgt. Hideji Nakamura faced similar charges.

One victim, Cpt. William Arno Bluehe, testified: “After beating me for a while they would lash me to a stretcher, then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness. When I revived they would repeat the beatings and ‘water cure’ . . . . The tortures and beatings continued for about six hours.”

Another soldier, Thomas B. Armitage, provided this testimony about his experience:

“[We] were strapped to stretchers and warm water poured down our nostrils until we were about ready to pass out. [The Japanese] strapped him to a stretcher and elevated his feet and then poured on his face so that it was almost impossible for him to get his breath. [The victim] was then taken into the corridor, strapped to a stretcher, which was tilted so that his head was toward the floor and feet resting on a nearby sink.Water was then poured down his nose and mouth for about twenty minutes. Then I was taken into the hallway of the barracks. Both of the Japanese still insisting I was guilty and urging me to confess.”

Hata received 25 years of hard labor, Nakamura 20 years and Kita 15 years. (More information on waterboarding charges in these trials can be found in the academic article embedded at the end of this column, by Wolfgang Form of the University of Marburg.)

The Japanese version, as practiced in World War II, appears harsher than the rules under which Americans were supposed to operate after the Sept. 11 attacks; a cloth was supposed to be used, but the Senate Intelligence Committee report details at least one case where water appears to have been poured directly on a detainee’s face. Water torture was not the only charge in the Japanese trials — and no one has accused U.S. personnel of using burning cigarettes — but in these cases it often was a key charge and clearly played a role in the sentences. Thus Cheney is simply wrong when he claims Japanese soldiers were not tried for waterboarding.

Update, Dec. 19: Judge Wallach wrote The Fact Checker to clarify that in his research he eliminated dozens of cases in which water-based interrogation was combined with other forms of torture:

I only looked at cases which specified torture and where the defendant was convicted. In order to be sure the court’s conviction was for water based interrogation, I eliminated the “burning cigarette cases.” There were numerous cases where I was quite convinced the conviction was for water based interrogation, but because there was any other evidence I deleted them from the final product.

While Todd did not mention it, during the Vietnam War, an American soldier was court-martialed within a month after the following photograph appeared on the front page of The Washington Post on Jan. 21, 1968, according to the book “Torture and Democracy,” by Darius Rejali, which in turn cites “America in Vietnam,” by Guenter Lewy, who relied on military records. (A reader, Bryan W. White, pointed us to another published account that says disciplinary action was taken but “no court martial is recorded.”)

The American soldier, at the left, is shown pinning a captured North Vietnamese soldier to the ground while two other Vietnamese placed a towel over his face and poured water in his nose. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced “a flooding sense of suffocation and drowning, meant to make him talk.”  The article with the photograph said the practice was “fairly common” in part because “those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury.”

The Pinocchio Test

Cheney dismissed too cavalierly Todd’s question about the prosecution of Japanese soldiers for waterboarding. One could quibble about whether these practices were exactly like the techniques practiced by CIA interrogators. But Todd raised a legitimate question and, contrary to Cheney’s assertion, waterboarding was an important charge in a number of the lesser-profile cases. Moreover, waterboarding also resulted in at least one court martial during the Vietnam War.

In other words, such techniques in different circumstances have been the subject of U.S. military prosecutions in the past. Thus the former vice president earns Three Pinocchios.

Three Pinocchios

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Comprehensive look at waterboarding charges in the Far East War Crimes trials

Waterboarding article by GlennKesslerWP