NRO's Hemingway gets history wrong in accusing Begala of botching facts

››› ››› ERIC HANANOKI

Mark Hemingway claimed that Paul Begala's statement that "[o]ur country executed Japanese soldiers who waterboarded American POWs" is false. However, the United States participated in a tribunal that sentenced numerous Japanese soldiers to death for war crimes including "torture" after a trial in which forms of waterboarding were presented as evidence of torture.

In an April 22 post on the National Review Online blog The Corner, staff reporter Mark Hemingway claimed that CNN contributor Paul Begala's statement that "[o]ur country executed Japanese soldiers who waterboarded American POWs" is false. Hemingway wrote: "What Begala said isn't true. Begala appears to be referencing Yukio Asano, a Japanese soldier convicted of war crimes. ... Not only was Asano not executed, but his 15-year sentence was for a host of crimes besides waterboarding." But contrary to Hemingway's claim that "[w]hat Begala says isn't true" because Asano was not executed, the United States also convened and participated in the International Military Tribunal for the Far East (IMTFE), which sentenced numerous Japanese soldiers to death for war crimes including "torture" after a trial in which forms of waterboarding were presented as evidence of torture.

Hemingway's post was cited by Media Research Center director of media analysis Tim Graham in an April 24 NewsBusters post titled "Did CNN's Paul Begala Mangle the Facts on Waterboarding History?"

During the April 21 edition of CNN's Anderson Cooper 360, Begala said of waterboarding: "We -- our country executed Japanese soldiers who waterboarded American POWs. We executed them for the same crime that we are now committing ourselves." Hemingway responded to Begala's appearance:

There's just one problem. What Begala said isn't true. Begala appears to be referencing Yukio Asano, a Japanese soldier convicted of war crimes. His case was popularized -- in the context of waterboarding -- by Ted Kennedy. See this Washington Post article from 2006:

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

Not only was Asano not executed, but his 15-year sentence was for a host of crimes besides waterboarding. According to the U.C. Berkeley War Crimes center:

Docket Date: 53/ May 1 - 28, 1947, Yokohama, Japan

Charge: Violation of the Laws and Customs of War: 1. Did willfully and unlawfully mistreat and torture PWs. 2. Did unlawfully take and convert to his own use Red Cross packages and supplies intended for PWs.

Specifications: beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward [emphasis in original]

However, Hemingway ignored death sentences passed down from the IMTFE, during which forms of waterboarding were presented as evidence of torture.

In a 2007 essay for The Columbia Journal of Transnational Law (retrieved from the Lexis database; a rough draft is available online), Evan Wallach, a federal judge for the U.S. Court of International Trade, wrote of the IMTFE:

In addition to those single-nation military commissions conducted [*490] by the United States, water torture was a major issue in proceedings before the IMTFE. That tribunal was created by General [Douglas] MacArthur in his position as Supreme Commander of Allied Powers, (SCAP). An American Judge sat on the tribunal and voted for convictions, and the chief prosecutor was an American. Accordingly, its record should have some precedential weight, in history if not in law.

C. The International Tribunal

The IMTFE was principally concerned with Japanese crimes against states, including acts of aggression and crimes against peace, but it also considered charges of misconduct against military personnel and civilians, including murder, rape, and torture.

The Judgment of the International Military Tribunal for the [*491] Far East held that:

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment ... .

As noted above, the Judgment described the water treatment as "commonly applied." It was called by a number of names (water treatment, the water test, water torture, suffocation by immersions), but the descriptions in the IMTFE trial record are generally of two types:

There were two forms of water torture. In the first, the victim was tied or held down on his back and cloth placed over his nose and mouth. Water was then poured on the cloth. Interrogation proceeded and the victim was beaten if he did not reply. As he opened his mouth to breathe or answer questions, water went down his throat until he could hold no more. Sometimes, he was then beaten over his distended stomach, sometimes a Japanese jumped on his stomach, or sometimes pressed on it with his foot.

In the second, the victim was tied lengthways on a ladder, face upwards, with a rung of the ladder across his throat and head below the latter. In this position he was slid first into a tub of water and kept there until almost drowned. After being revived, interrogation proceeded and he would be reimmersed. [Affidavit of J.L. Wilson, The Right Reverend Lord Bishop of Singapore, admitted as Prosecution Exhibit 1519A, 16 December, 1946, IMTFE Record at 12, 935.]

Wallach noted in a footnote that the "trial record of the IMTFE contains numerous references to forms of water torture inflicted by Japanese troops":

The trial record of the IMTFE contains numerous references to forms of water torture inflicted by Japanese troops. These include, inter alia: Affidavit of James Strawhorn regarding torture at a POW camp at Nichols Field in the Philippines (tying victim to a board with head lower than feet and pouring salt water into his mouth), admitted as Prosecution Exhibit 1453, Dec. 12, 1946, IMTFE Record, supra note 25, at 12,605-07; Affidavit of Amhad Bin Cheteh regarding death of prisoners following water torture at Penang [Malaysia], admitted as Prosecution Exhibit 1531A, Dec. 16, 1946, id. at 12,958-59; Solemn Declaration of Harry Joseph regarding tortures by Kempeitai at Kyaikto [Myanmar], admitted as Prosecution Exhibit 1552A, Dec. 16, 1946, id. at 12,981-82 ("a large quantity of water slowly poured into [prisoner's] mouth and nostrils, so that the prisoner suffocated"); Affirmation of Pyaray Mohan, admitted as Prosecution Exhibit 1611A, Dec. 18, 1946, id. at 13,186 (victim of water torture in Andaman Islands); Affirmation of Murad Ali, admitted as Prosecution Exhibit 1616A, Dec. 18, 1946, id. at 13,192-93 (Indians tried as spies in Adaman Islands, water torture carried, including by one of the judges); Affidavit of Maj. A. Zimmerman, admitted as Prosecution Exhibit 1750, Dec. 26, 1946, id. at 13,682-84 ("water test" at Buitenzorg [now Bodor], Indonesia); Affidavit of Prof. E. DeVries, admitted as Prosecution Exhibit 1751, Dec. 26, 1946, id. at 13,685-86 (underwent "water test" twenty-two times during a period of two months at Buitenzorg [now Bodor], Indonesia); Affidavit of Cdr. C.D. Smith regarding water torture at Shanghai, admitted as Prosecution Exhibit 1901A, Jan. 3, 1947, id. at 14,179, 14,181-82:

Wallach wrote of the significance of "water torture" in the IMTFE's judgment:

There was a significant reason the IMTFE's Judgment listed water torture first in its determination that the Japanese uniformly engaged in torture throughout occupied areas. The practice, in its [*493] various iterations, was widespread and uniform. Its condemnation, and the ensuing severe sentences of those who ordered and permitted it, was approved in its entirety by Myron Cramer, the U.S. Judge on the Tribunal.

In its judgment, under the section "Torture and Other Inhumane Treatment," the tribunal wrote of "water treatment":

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment, burning, electric shocks, the knee spread, suspension, kneeling on sharp instruments and flogging.

The Japanese Military Police, the Kempetai, was most active in inflicting these tortures. Other Army and Navy units, however, used the same methods as the Kempetai. Camp guards also employed similar methods. Local police forces organized by the Kempetai in the occupied territories also applied the same methods of torture.

We will show how the Chiefs of Camps were instructed in Tokyo before assuming their duties. We will also show that these Chiefs of Camps were under the administrative control and supervision of the Prisoner of War Administration Section of the Military Affairs Bureau of the War Ministry to which they rendered monthly reports. The Kempetai were administered by the War Ministry. A Kempetai training school was maintained and operated by the War Ministry in Japan. It is a reasonable inference that the conduct of the Kempetai and the camp guards reflected the policy of the War Ministry.

To indicate the prevalence of torture and the uniformity of the methods employed we give a brief summary of these methods.

The so-called "water treatment" was commonly applied. 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. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process. There was evidence that this torture was used in the following places: China, at Shanghai, Peiping and Nanking; French Indo-China, at Hanoi and Saigon; Malaya, at Singapore; Burma, at Kyaikto; Thailand, at Chumporn; Andaman Islands, at Port Blair; Borneo, at Jesselton; Sumatra, at Medan, Tadjong Karang and Palembank; Java, at Batavia, Bandung, Soerabaja and Buitennzong; Celebes, at Makassar; Portuguese Timor, at Ossu and Dilli; Philippines, at Manila, Nichols Field, Palo Beach and Dumaguete; Formosa, at Camp Haito; and in Japan, at Tokyo. [emphasis added]

Wallach noted in a footnote that some of the IMTFE defendants were convicted of, among other crimes "ordering, authorizing, and permitting commission of war crimes including, inter alia, torture," and were sentenced to death:

Kenji Dohihara, Seishiro Itagaki, Heitaro Kimura, Akira Muto, and Hideki Tojo, the IMTFE defendants who were convicted on Count 54 (ordering, authorizing, and permitting commission of war crimes including, inter alia, torture), were all sentenced to death by hanging. IMTFE Judgment, supra note 96. Shunroko Hata, Kuniaki Koiso, Koki Hirota, who were convicted on Count 55 (failure to take adequate steps to prevent war crimes), were sentenced to life imprisonment, but defendant Iwane Matsui was sentenced to death after he was convicted of failing to prevent the Nanjing massacre, and Mamoru Shigemitsu was sentenced to seven years imprisonment based on mitigating circumstances. Id. Many of the defendants were, of course, convicted of other crimes of conspiracy, of aggression and against the peace. Id.

Dohihara, Itagaki, Kimura, Muto, and Tojo served in the Imperial Japanese Army.

As Media Matters for America Senior Fellow Eric Boehlert noted, in a December 2007 article, PolitiFact.com concluded that Sen. John McCain's statement that the "Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding" was "true." Citing Wallach's essay, PolitiFact wrote that a "number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps." From PolitiFact's article:

McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as "water cure," "water torture" and "waterboarding," according to the charging documents. It simulates drowning.

R. John Pritchard, a historian and lawyer who is a top scholar on the trials, said the Japanese felt the ends justified the means. "The rapid and effective collection of intelligence then, as now, was seen as vital to a successful struggle, and in addition, those who were engaged in torture often felt that whatever pain and anguish was suffered by the victims of torture was nothing less than the just deserts of the victims or people close to them," he said.

In a recent journal essay, Judge Evan Wallach, a member of the U.S. Court of International Trade and an adjunct professor in the law of war, writes that the testimony from American soldiers about this form of torture was gruesome and convincing. A number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps.

We find McCain's retelling of history to be accurate, so we give him a True.

Posted In
Justice & Civil Liberties, Interrogation
Network/Outlet
National Review, NewsBusters
Person
Mark Hemmingway
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