November 16, 2007

Waterboarding, or the "water cure," has been with us since the Inquisition, and has always been regarded as a particularly heinous and cruel form of torture. If you don't believe me, perhaps this state supreme court decision from the 1920's which overturned a murder conviction might give you pause:

The state offered the testimony above set forth, also testimony of confessions made by the appellant, Fisher. When the testimony was offered the witnesses tendered testified that the confessions were free and voluntary. No objections were offered to this testimony at that time, but subsequently the defendant, after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country. The sheriff testified that he told these people not to hurt the appellant, and that the process was new to him as he witnessed it being administered to the appellant.

Several persons were introduced by the appellant who testified as to the presence of the parties in the jail and the administering of the water cure to Fisher and others jointly charged with the offense with him. The defendant also introduced a witness by the name of Hicks Ellis, who testified that he was in the party which administered the water cure to the appellant, and secured the confession thereby.


We are satisfied that the court erred in receiving the confessions under the circumstances disclosed in this record. The Constitution of the state provides in section 26, among other things, that “the accused shall not be compelled to give evidence against himself.” This guaranty is violated whenever a confession is illegally extorted from a person accused of crime. In White v. State, 129 Miss. 182, 91 So. 903, 24 A. L. R. 699, the court, in the first syllabus of that case, held:

Confessions induced by fear, though not aroused by spoken threats, are nevertheless involuntary, because the fear which takes away the freedom may arise solely from the conditions and circumstances surrounding the confessor.”
That case, in the methods resorted to to procure the confession, is a good deal like the one before us. There an ignorant negro boy was arrested, brought to the scene of a horrible murder, and after he was released by the authorities fell into the hands of infuriated citizens, who took him into a store building where the bloody corpse lay and a crowd of armed men were assembled, to obtain a confession. The boy confessed to one of the men, and then his hands were tied behind him, he was placed upon the floor, and a white man stood upon his body and administered to him the water cure, which consisted of pouring water into his nose. The court held that this confession was unlawfully obtained, and was therefore involuntary. It also held, in the third syllabus of the case, that:
Where confessions were obtained at the scene of the murder by threats, duress, and physical violence, it was error to refuse to allow defendant's counsel to introduce testimony showing a connection between such involuntary confessions, and another confession to some of the same parties subsequently made at the jail to show that the same influence obtained in the latter confession rendering it involuntary.”

The bleeding heart judges who made that ruling, incidentally, were the members of the Mississippi Supreme Court. Eighty years later, a practice that was deemed too barbaric to justify even in the deepest part of Dixie, at a time when lynching was still a daily part of life in that state and much of the membership of the judiciary had ties to the Ku Klux Klan, is now a confirmed practice of the United States of America, something the President and the Attorney General will not say is torture. [link via Hit&Run]

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