The 1968 waterboarding conviction is the historical case John Kiriakou raises to show that the legality of waterboarding was settled in American law long before the CIA’s post-2001 programme, and that nothing in the law subsequently changed.
The photograph and the prosecution
In January 1968, Kiriakou says, the Washington Post ran a front-page photograph of an American soldier waterboarding a North Vietnamese prisoner.[1]
When the photograph was published, the Secretary of Defense, Robert McNamara, ordered an investigation. The soldier was arrested, charged with torture, convicted and sent to prison.[1]
The question he draws from it
Kiriakou puts the point as a question: why was torture illegal in 1968 but not illegal in 2002?[1][2]
His answer is that the law did not change. There was no amendment to the law banning torture that declared it now permissible; there was no statute saying that waterboarding is not torture, that the cold cell is not torture, that sleep deprivation is not torture.[2] What happened instead, in his account, is that a group of attorneys in the Justice Department decided they were going to twist the law to do what they wanted — and that is exactly what happened.[2]
The wider legal frame
Kiriakou sets the case within a stack of prohibitions he says the United States violated at once. Not only do American laws prohibit torture, but there are international treaties and conventions to which the United States is a signatory — in some cases treaties the United States itself wrote and bullied other countries into signing — and which it then violated by torturing.[3]
The episode is his standing rebuttal to the sequence of official denials he describes elsewhere: George W. Bush saying on camera that the United States does not torture, and George Tenet saying the same on 60 Minutes in 2005 in a manner Kiriakou describes as practically shouting.[4][3]