Fact-Check: Could The Next President Bring Back Waterboarding?

As national security has come to dominate the 2016 presidential race, the GOP contenders in particular are being pushed to define where they stand on a contentious matter: how suspected terrorists should be interrogated. Specifically, they've been asked about the currently banned use of waterboarding — a simulated drowning technique the CIA used on at least three alleged terrorists.

In a debate on ABC News earlier this month, Donald Trump said, "I would bring back waterboarding, and I would bring back a hell of a lot worse than waterboarding." In response, Texas Republican Sen. Ted Cruz was asked whether he considered waterboarding to be torture.

The Claim

"Well, under the definition of torture, no, it's not. Under the law, torture is excruciating pain that is equivalent to losing — losing organs and systems. So, under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture." — Sen. Ted Cruz

The Big Question

If waterboarding is torture, could it even be considered as an acceptable interrogation technique? And if it is not torture, does that mean it remains an option to be used possibly by a future president?

The Broader Context

President Obama signed an executive order in 2009 banning the use of torture by any government agency. Last year, Congress codified that ban into law in the National Defense Authorization Act. So, if waterboarding is considered torture, it would take an act of Congress to allow its use as an interrogation technique, since that's now forbidden under current U.S. law. Only those interrogation techniques outlined in the Army Field Manual are considered legal — and those techniques do not include waterboarding.

But if waterboarding is not considered torture, a president could argue he or she has the legal right to order it — much as George W. Bush did during his administration.

The Short Answer

For Cruz, it's torture only if excruciating pain "equivalent to losing organs and systems" has been inflicted. That is not the standard used by international organizations whose definitions of torture have been endorsed by the U.S. There is a wide legal and diplomatic consensus that waterboarding is torture, and therefore illegal.

The Long Answer

Cruz's contention that waterboarding "does not meet the generally recognized definition of torture" largely echoes the rationale used by the Bush administration to get around the existing legal strictures surrounding torture. But the argument made in the 2002 "Bybee Memo" — named for Jay Bybee, who at the time headed the White House Office of Legal Counsel — has been repudiated even by members of that administration.

Waterboarding is, in fact, widely considered to meet the definition of torture in the United Nations Convention Against Torture, ratified in 1990 by the U.S. Senate. "Torture," it says, "means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or her information of a confession" and when it is done with the consent of anyone acting in an official capacity. The International Committee of the Red Cross also considers waterboarding torture. And the U.S. executed half a dozen Japanese generals after World War II found guilty of torturing American prisoners of war with techniques that included water torture.

Sources

• ABC News candidate debate, Feb. 6, 2015
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — United Nations Audiovisual Library of International Law, Dec. 10, 1984
• Congressional Record, 114th Congress, amendment SA 1889 to the 2016 National Defense Authorization Act, H.R. 1735, "Reaffirmation of the Prohibition on Torture"
• "Waterboarding is Torture, Says International Red Cross," Wall Street Journal, Aug. 7, 2014
• "A Guide to the Memos on Torture," The New York Times

This story is part of NPR's fact-checking series, "Break It Down," in which we try to cut through the spin and put things in context. Have something you want us to fact-check? Put it in the comments section or send us an email at nprpolitics@npr.org.

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