Will the Obama administration investigate potential war crimes?

President-elect Barack Obama nominated Eric Holder as U.S. Attorney General. Many observers suggest that Holder may face significant scrutiny during his Senate confirmation hearing on his role in the controversial Clinton administration pardon of indicted financier Marc Rich as well as the pardon of Puerto Rican nationals convicted of violence during Puerto Rico’s drive for independence.

Holder may also be forced to answer questions relating to an issue that dogged his predecessor Michael Mukasey. The confirmation of Mukasey became contentious when he failed to provide a direct answer to questions regarding whether waterboarding was considered torture. Mukasey said he did not know enough about how waterboarding was used to determine if it was torture.

Waterboarding has commonly been referred to as an “interrogation technique” used to elicit information from enemy combatants housed at Guantanamo Bay and in various foreign countries. Waterboarding is a technique where by a detainee is restrained and water is poured over a cloth covering his face. The procedure simulates drowning and often causes temporary unconsciousness.

Mukasey’s Senate interrogators were trying to pin him down on the issue of torture. If the attorney general, the country’s chief law enforcement officer, believed that waterboarding was torture he would have a responsibility to investigate and possibly prosecute, as war criminals, those responsible for its use.

Waterboarding is neither new nor rare. Ed Peters of the University of Pennsylvania told National Public Radio that waterboarding was first documented in the 14th century during the Spanish Inquisition. At the time, waterboarding was considered a legal form of interrogation sanctioned by the authority of the day.

Since its early use, waterboarding has fallen out of favor. Last year, Judge Evan Wallach wrote in the Washington Post that as far back as the 1898 Spanish-American war, U.S. soldiers were court-martialed for using waterboarding to question Philipino guerrillas. According to National Public Radio the presiding judge advocate said the charges constituted a “resort to torture with a view to extort a confession.” In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian during World War II. Asano was sentenced to 15 years in prison by the Tokyo War Crimes Tribunal.

Human rights violations

More recently, according to Wallach, the estate of former Philippine president Ferdinand Marcos was forced by a U.S. Court to pay $766 million in damages for human rights violations including, “the water cure, where a cloth was placed over the detainee’s mouth and nose, and water producing a drowning sensation.” In 1983, a Texas sheriff was convicted for using waterboarding to elicit confessions from suspects.

Holder will undoubtedly be asked if waterboarding is torture. His response will have potentially explosive implications. CIA Director Michael Hayden told Congress that waterboarding was used to interrogate al-Qaida leader Khalid Sheikh Mohammed. Recently, Vice-President Dick Cheney told Jonathan Karl of ABC News that he was “involved in helping get the process cleared,” referring to tactics used against Mohammed. Karl asked, “In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?” Cheney responded, “I don’t.”

Even former prosecutor Andrew C. McCarthy, who wrote an article for The National Review defending the Bush administration’s use of waterboarding conceded, “Waterboarding should be considered illegal, under the McCain Amendment, in almost all instances.”

Last month the Senate Armed Services Committee issued a report accusing former Defense Secretary Donald Rumsfeld and his deputies of being the principal architects of the plan to use harsh interrogation techniques on terrorism suspects.

Former Republican presidential candidate and U.S. Sen. John McCain told the Associated Press, “The committee’s report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in U.S. custody.” McCain went on to say, “These policies are wrong and must never be repeated.”

Holder’s response to the waterboarding question may have an impact on his confirmation. More importantly, if confirmed, Holder’s position on waterboarding may result in high ranking Bush administration officials being investigated and potentially prosecuted for war crimes.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com.