A Brief on the Use of Water Torture by American Officials in the War on Terrorism

In 1968, the Washington Post published a photograph of an American soldier supervising the use of water torture on a North Vietnamese prisoner. The victim was being held down as water was poured over a cloth covering his nose and mouth to induce "a flooding sense of suffocation and drowning meant to make him talk." The soldier was charged, convicted and discharged from the Army.

In 2005, the U.S. State Department’s review of Tunisia’s poor human rights record included "submersion of the head in water" as a form of "torture and other cruel, inhuman, or degrading treatment or punishment" of detainees.

On September 17, 2001, President Bush signed a secret Presidential finding authorizing the CIA to hunt, capture, detain, or kill designated terrorists wherever they might be located.

In a secret memorandum dated February 7, 2002, President Bush stated that the Geneva Conventions did not apply to al-Qaeda or Taliban detainees, but that the United States would "continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." In doing so, the president authorized extraordinary rendition of detainees and their secret detention; however, the findings were silent regarding the use of enhanced interrogation techniques.

In March 2002, the CIA created a list of six "enhanced interrogation techniques" including the attention grab, attention slap, belly slap, long time standing, the cold cell, and waterboarding. At least one detainee in Afghanistan died of hypothermia after being forced to stand naked throughout a cold night after being doused with cold water and another died after being suffocated in a sleeping bag.

In August 2002, the Justice Department secretly issued a legal opinion stating that no interrogation practices were illegal unless they produced pain equivalent to organ failure or death. A second secret memorandum described approved practices and the frequency and duration of their application. The legal opinion was withdrawn in June 2004 after it became public knowledge. The Justice Department subsequently published a new opinion that stated, "Torture is abhorrent both to American law and values and to international norms." However, a footnote stated that previous actions by the CIA were not being declared illegal.

The public legal opinion was quickly followed in early 2005 by yet another secret opinion that, according to a recent article in the New York Times, "provided explicit authorization to barrage suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."

In March 2005, Porter J. Goss, the then director of the Central Intelligence Agency, was unable to assure Congress that the CIA had been using lawful interrogation methods in the past few years. He did say that waterboarding fell into "an area of what I will call professional interrogation techniques" and he defended such techniques as an important tool in efforts against terrorism.

On April 5, 2005, one hundred U.S. professors of law signed and sent an open letter to then Attorney General Alberto Gonzales, which stated in pertinent part:

"We are particularly concerned about your continuing failure to issue clear statements about illegal interrogation techniques, and especially your failure to state that "waterboarding"—a technique that induces the effects of being killed by drowning—constitutes torture, and thus is illegal. We urge you to make such a statement now.

"The Convention Against Torture prohibits practices that constitute the intentional infliction of "severe pain or suffering, whether physical or mental." The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause "severe physical or mental pain or suffering."

"Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward."

The Detainee Treatment Act of 2005 prohibited the "cruel, inhuman, or degrading treatment or punishment" of detainees and provides for "uniform standards" for interrogation by the military; however, it does not apply to interrogations by the CIA. In signing the Act in January 2006, President Bush declared his authority to set aside the restrictions if they interfered with his constitutional powers. His ability to get away with it is enhanced by the secret Justice Department opinion allowing even the use of water torture in certain circumstances.

President Bush issued yet another secret executive order in summer 2006 regarding enhanced interrogation techniques; however, he has refused to disclose whether water torture is included among the approved techniques.

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