WHEREAS President George W. Bush has nominated Michael B. Mukasey to serve as the Attorney General of the United States, a cabinet position established by law, and has requested the advice and consent of the United States Senate to the appointment pursuant to Article II, Section 2, Clause 2 of the Constitution of the United States of America ; and

WHEREAS the Committee on the Judiciary is preparing to vote on the nomination; and

WHEREAS the nominee was asked by members of the Committee whether the use of "waterboarding," an interrogation technique that simulates drowning, by American officials on prisoners taken into custody in the war on terrorism amounts to torture; and

WHEREAS the nominee has stated that his legal opinion on waterboarding would depend on the facts and circumstances of the program and that he has not been briefed on the government’s program and techniques;

THEREFORE the following brief is submitted for his enlightenment and for such other use as the Committee may find appropriate.

During water torture, the body and head of a victim is typically strapped to an inclined board with the head lower than the feet. The victim’s jaws are forced open and a cloth is forced deep into the mouth and over the nose. Water is continuously poured over and into the cloth forcing the victim to stop breathing until forced to either swallow water and/or aspirate it into the lungs, triggering the gag reflex.

Water torture results in controlled drowning, the degree of which depends upon the ability of an individual to resist and the will of the torturer. The punishment ranges from psychological torment and physical suffocation to death. At the least, water torture represents a mock execution. The primeval fear of asphyxiation leads to overwhelming panic in even the most disciplined individuals who may be trained and psychologically conditioned to die rather than submit.

Water torture can lead to serious injury to the victim. A lack of oxygen can quickly result in permanent brain damage, and the aspiration of even small amounts of water can lead to lung disease, including pneumonia. Struggles by the victim against the restraints can produce severe sprains and broken bones. Significantly, the intense fear of imminent death and the victim’s helplessness to prevent it produces devastating and long lasting psychological damage.

The use of water to simulate drowning has been used as a torture device since at least the Middle Ages. It was known as the tortura del agua during the Spanish Inquisition and was used by agents of the Dutch East India Company during the Amboyna massacre in 1623.

Water torture has been acknowledged by the United States to be illegal since at least 1901 when an Army officer was convicted and sentenced to 10 years imprisonment for using it to torture a Philippine rebel.

In 1947, a Japanese officer was prosecuted by the United States for strapping a U.S. civilian to a tilted stretcher and pouring water over his face until he agreed to talk. The officer was convicted of a Violation of the Laws and Customs of War and was sentenced to 15 years of hard labor.

In 1957, French forces in Algeria tortured Henri Alleg, a journalist, by strapping him to a plank and wrapping his head in a cloth placed under a running water tap. Alleg later talked about his torture in The Question: "The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. But for a while I could still breathe in some small gulps of air. I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I couldn’t hold on for more than a few moments. I had the impression of drowning, and a terrible agony, that of death itself, took possession of me. In spite of myself, all the muscles of my body struggled uselessly to save me from suffocation. In spite of myself, the fingers of both my hands shook uncontrollably."

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