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In recent years, few issues have been debated more frequently and more vigorously than the use of torture � especially an interrogation technique known as waterboarding � to extract information from suspected terrorists. (Waterboarding occurs when a detainee is strapped to a board, his face is covered with a cloth and water is poured over the cloth to produce a feeling of imminent drowning.) But despite widespread discussion of this issue, uncertainty persists. Last month, Steven G. Bradbury, the acting head of the Justice Department’s Office of Legal Counsel, told a congressional committee that waterboarding is no longer one of the interrogation techniques authorized to be used on terrorism suspects. When questioned further, however, Bradbury conceded that the Justice Department had not yet decided whether waterboarding was still a lawful technique. A few weeks earlier, both CIA Director Michael Hayden and Attorney General Michael Mukasey also told Congress that the legality of waterboarding was an unresolved matter. However, the director of national intelligence, Michael McConnell, did make a contribution to the debate (albeit a small one) when he told a reporter: “Whether it’s torture by anybody else’s definition, for me it would be torture.” In a Feb. 17 New York Times op-ed piece, Colonel Morris Davis, the chief prosecutor for the military commissions at Guant�namo Bay, Cuba, disclosed that his policy was that “evidence derived through waterboarding was off limits.” But he quickly added that he had been “overruled on the question” and had then resigned his position “to call attention to the issue.” On two recent occasions, the legal adviser for the military commissions, Brigadier General Thomas Hartmann, has refused to rule out the use of evidence acquired through waterboarding. At the moment, President Bush is considering whether to veto a bill that would prohibit the CIA from using waterboarding and other harsh interrogation methods. A number of commentators have added to the confusion by insisting that, even if the bill is vetoed, waterboarding and other cruel and degrading interrogation techniques are already banned by the Detainee Treatment Act of 2005. Earlier torture by the police This is not the first time Americans have debated the need for, and the desirability of, torture as an interrogation method. As Richard Leo, who is both a law professor and a criminologist, discusses at considerable length in his illuminating new book, Police Interrogation and American Justice (2008), in the first third of the past century, police resort to torture � in those days it was often called the “third degree” � was hotly disputed. As Leo points out, when the Wickersham Commission Report was published in 1931 � detailing the widespread use of harsh and often violent police interrogation methods � some police officials responded as follows: First, there wasn’t any third degree; second, the police couldn’t do their work without it. (Sound familiar?) It is noteworthy that a tactic the police used in the 1920s and 1930s closely resembled waterboarding. Called the “water cure,” it involved holding a suspect’s head in water until he almost drowned or putting a hose into his mouth or even down his throat. Sometimes the police forced a suspect to lie on his back and poured water into his nostrils. As did the CIA after Sept. 11, 2001, (at least for a while), during the era of the third degree the police also staged mock executions. A suspect might hear screams or the thud of falling bodies coming from an adjacent room. The message was clear: The suspect would get the same treatment if he did not confess. Most high-ranking law enforcement officials eventually came to realize that the third degree had become, as Leo puts it, “a black mark on the image of policing” and had to be abolished. Thus began the long struggle to replace the old ways with the techniques and strategies of psychological interrogation. In this regard, the police were aided by the publication of various interrogation manuals. By discussing which methods were appropriate and which were not (and why they were not), these manuals contributed greatly to the culture of police interrogation. When Leo made several references to a training manual I had not heard of before, one written by a California police lieutenant named W.R. Kidd, I soon obtained a copy. I found it so interesting that I read it from cover to cover in one sitting. Kidd treated torture and the old third degree interchangeably. He had quite a bit to say about each � and none of it was good. Torture, noted Kidd, “may consist of beatings; of long grillings by relays of interrogators under blinding lights; or locking the prisoner up in a dungeon without food or water for long periods of time.” When should these techniques be used to extract a confession from a prisoner? According to Kidd, the answer is never. Why so? “Because torture does not produce the truth. Under sufficient torture, a man will tell you anything you want to know. If you build your case on this ‘confession’ you may find [out later] that the man could not possibly have committed the crime . . . .Public confidence in the police is shattered if knowledge of such methods is publicized.” Kidd summed up his position on torture by maintaining that if the police resort to that kind of interrogation technique, only three things can happen to their prisoner: “1. He will tell you anything desired. 2. He will go insane if the torture is severe enough. 3. He will die.” The most remarkable thing about Kidd’s little book (it could fit into a man’s back pocket) is that it was written in 1940 and was the first police interrogation manual ever published in America. How much progress have we made in the last two-thirds of a century? Yale Kamisar is a professor of law at the University of San Diego and professor emeritus of law at the University of Michigan.

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