Vestal on Waterboarding in the Philippine-American War

Allan Vestal, Drake University Law School, has posted The First Wartime Water Torture by Americans, Maine Law Review 69 (2017): 1-66:

The first use of wartime water torture by Americans occurred during the Philippine-American War of 1899 to 1902, when American soldiers and their indigenous minions used the “water cure” to extract information from Filipinos who resisted the occupation of their land, and to punish them. The practice, in which a prisoner was held down and forced to ingest large quantities of water to simulate drowning, was almost universally acknowledged at the time to be a form of torture, illegal under the applicable laws of war.

The Philippine-American War, an early foray into overseas imperialism, was extremely controversial at the time. Cutting across partisan and sectional lines, the conflict divided the nation between imperialists and anti-imperialists. The conduct of the war intensified the controversy. Beyond water torture, the war was marked by the burning of villages and towns, the establishment of re-concentration camps, and reprisals against innocent civilian hostages. The use of water torture divided the Army, the Senators who investigated the practice, and the nation.

It was against this backdrop of controversy that President Theodore Roosevelt delivered an address to veterans of the Great Rebellion on Memorial Day in 1902, in which he promised to discover and acknowledge every instance of cruelty and barbarity, fairly punish those guilty of such crimes, and take strong action to minimize such crimes in the future. The article traces the failure of the Roosevelt Administration to fulfill these three imperatives, and compares the record of that age with our performance as a nation after our recent use of water torture.

Bessler's "Death Penalty as Torture"

John D. Bessler, University of Baltimore School of Law, has published The Death Penalty as Torture: From the Dark Ages to Abolition, with the Carolina Academic Press:

During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture—from the thumbscrew and the rack to the Inquisition’s tools of torment—was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.

In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria—the father of the world’s anti–death penalty movement—condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.

In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.

More on Teaching "Law and the 'War on Terror'": Selected Bibliographies on Terrorism and Torture

Last week we ran a post about how to teach the topic of "Law and the 'War on Terror,'" part of my series of posts on teaching the U.S. Legal History survey for the first time. In response to my question about useful readings, both for assignments and background knowledge, reader Patrick S. O'Donnell (Santa Barbara City College) sent us two terrific bibliographies, one on terrorism and the other on torture. He gave us permission to post them in full, after the jump.

Weekend Roundup

• Jill Lepore's latest New Yorker article may be of interest to readers. It is titled "The Dark Ages: Terrorism, Terror, and the Law of Torment." Subscribers only, unfortunately.

• From the Daily Beast: legal historian R. B. Bernstein on "The Sequester and the Civil War: A Historical What-If with Lessons for Today."

•  Last year’s Federalist Society Student Symposium at the Stanford Law School included an unusually interesting panel on the Rule of Law and the Administrative State, consisting of Peter Shane, Richard Epstein, David Barron, and Judge Brett Kavanaugh.  Along the way, the speakers make some assertions about the history of the administrative state that are instructive for any historian who needs to check her own understanding of the subject against that of those outside the historical discipline.  I particularly enjoyed Professor Epstein’s evisceration of Felix Frankfurter on the judicial review of the FCC, even though he erroneously claims that Frankfurter learned about the administrative state at the feet of James Landis, when of course it was the other way around.  You may view or download the session here. [DRE] 

• A brief review by Herbert Hovenkamp of David Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge, 2013) is here.

• Georgetown University Law Center hosts Gay Rights Coalition of Georgetown University Law Center vs. Georgetown University, 25th Anniversary on Wednesday, March 20, 2013, from 1:00 - 5:00 p.m. on the 12th Floor of the Gewirz Student Center, located on the Georgetown Law campus at 120 F Street, NW, Washington, D.C.  This symposium is sponsored by the Georgetown Journal of Gender and the Law. It commemorates the 25th anniversary of Gay Rights Coalition of Georgetown University Law Center v. Georgetown University.

The Weekend Roundup is a weekly feature compiled by all the Legal History Bloggers.

Truth, Torture, and 18-year-olds (1)

Truth, Torture, and 18-Year Olds (1)

Felicia Kornbluh

This is the last week of class and the students in my first-year seminar on “Law and American Society” have been reading Mark Danner’s Torture and Truth: America, Abu Ghraib, and the War on Terror – which, if you don’t know it, is a 2004 book about the War on Terror by a journalist made famous by his exposes of the work of the U.S. and its allies in El Salvador. I used to fill up my “law and society” or legal history seminars reflections on the uses of law by “little-guy” plaintiffs or movements for social change: We'd read E.P. Thompson on the Rule of Law and Forbath, Hartog, and Minow on “Legal History from Below,” some theoretical pieces on race and gender (and, if I was feeling conscientious, then a piece on Law and Economics). Then we would look at a whole bunch of case studies. There was critique in the house, but much of it was pretty gentle, informed by Thompson’s (and mine, I guess) basically genial relationship to Anglo-American legal history.

Right around the time the Abu Ghraib photos went public, this way of teaching the history of law started to seem inadequate, even kind of insane, in the sense of operating in a world that was clearly not the one in which my students and I were living. In truth, I could have figured this out sooner, perhaps the very first time I taught a lecture class in American Legal History in the Fall semester of 2001. My students resolutely did NOT want to cancel our regular lectures to talk about what happened on 9/11—but a conversation about the history of civil liberties turned into a lot of questions I’d never heard before about why people in the United States had access to so much information, why the press was so dangerously free. They thought it was terrifying to know that the Vice President was in a secret bunker somewhere—since if they knew it, then the Enemy must know it, too. For the first and only time, I got student evaluations complaining about my politics.

Anyway, nowadays my course is kind of schizophrenic: We don’t always read E.P Thompson anymore, but we talk a lot about little guys and gals, about agency and custom and fightin’ back, and, sure, about the limits of formal legal action for promoting social change. But we end the course talking about Empire, and all that other stuff seems to kind go out the window. The week before Thanksgiving was reserved, pity my poor sleepy students, for the Insular Cases (the Constitution does not follow the flag – see Bartholomew Sparrow’s book in the Kansas Great Cases series). And now we’re hip-deep in the Torture Memos.