2/10/09 1:04 Am

8/14/2019 2/10/09 1:04 Am

1/17

DRUCE.DOC 2/10/091:04AM

351

DOES WATERBOARDING CONSTITUTETORTURE?

GEORGINA DRUCE*

Waterboarding was one of the most controversial interrogation techniques used by the

U.S. Government during the war on terror. At the core of the controversy is whether its

use amounts to torture. This article attempts to provide a purely legal analysis of an

extremely ethical and emotive subject by focusing attention on investigating the legal

definitional components of torture as incorporated under US law and interpreted under

international case law to determine whether waterboarding rises to the level of torture.

In particular, consideration focuses on the two most uncertain elements of the torture

definition: the level of physical or mental pain required for an interrogation technique

to amount to torture and the nature of the intention of the interrogator to cause the

aforementioned pain and suffering.

I. INTRODUCTION ...................................................................................... 351II. A LEGAL DEFINITION OF TORTURE....................................................... 354III. SEVERITY ............................................................................................ 356

A. The Effects of Waterboarding .................................................. 358IV. SEVERE MENTAL PAIN OR SUFFERING ............................................... 360

A. Prolonged Mental Harm ........................................................... 360B. Predicate Act............................................................................. 362

V. INTENTION............................................................................................ 363VI. CONCLUSION....................................................................................... 366

I. INTRODUCTION

On November 18th, 2005, ABC reported that top intelligence officials

had authorized six enhanced interrogation techniques that had allegedly

led to questionable confessions from al-Qaeda leaders in secret prisons.1

One of the techniques was waterboarding described by the report as:

The prisoner is bound to an inclined board, feet raised and head

slightly below the feet. Cellophane is wrapped over the prisoner's face and

* Georgina Druce received a BA in Philosophy from Durham University, England and went on to

study Law at BPP in London. After graduating from Georgetown University Law Center with an

LL.M. in International Law and National Security Law, Georgina interned at the Brookings

Institution, National Nuclear Security Administration and for Senator Biden before returning toLondon to work for Jones Day.1 Brian Ross and Richard Esposito, CIAs Harsh Interrogation Techniques Described, ABC

News, Nov. 18, 2005, http://abcnews.go.com/WNT/Investigation/story?id=1322866 (last visited

Dec. 10, 2007).

8/14/2019 2/10/09 1:04 Am

2/17

DRUCE.DOC 2/10/09 1:04AM

352 THE DARTMOUTH LAW JOURNAL Vol. VI:3

water is poured over him. Unavoidably, the gag reflex kicks in and a

terrifying fear of drowning leads to almost instant pleas to bring the

treatment to a halt.23

The report generated debate over whether the U.S. governmentsalleged use of waterboarding was constitutional in light of numerous global

prohibitions on torture.4 The debate reached a climax during the Senate

Confirmation Hearings of Judge Michael Mukasey, the new U.S. Attorney

General. While Judge Mukasey acknowledged that torture ran contrary to

law and the U.S. Constitution5, when asked whether waterboarding was

constitutional he responded; if it amounts to torture, it is not

constitutional.6 His blatantly ambiguous response led to public outrage

best shown by Senator Sheldons response; I am very disappointed in that

answer. I think it is purely semantic.7

Whereas, the debate over whether waterboarding amounts to torture

may be new, the practice is not. Reports describe its use in the Khmer

Rouges Tuol Sleng torture chambers,8 by the Japanese officer YukioAsano in World War II in 1947,9 as well as Sadao Araki and other Japanese

officers charged with war crimes before the International Military Tribunal

for the Far East in November 194810. It was even the subject of two trials

in Mississippi in 1922 and 1926, where the defendants murder convictions

were overturned on the basis that their confessions had been extracted by

2 Id.3 Walter Pincus, Waterboarding Historically Controversial, THE WASHINGTON POST, Oct.

5, 2005, at A17, available athttp://www.washingtonpost.com/wp-

dyn/content/article/2006/10/04/AR2006100402005.html (last viewed Dec. 10, 2007). For the

purpose of this paper, consideration will be limited to the method described as touchless

torture, since the author considers it more ambiguous for the purpose of whether waterboarding

amounts to torture. The techniques involving application of physical pressure, such as forcingwater into the victims stomach are considered to more easily reach the level of physical pain or

suffering since actual pain is likely experienced.4 Torture is expressly prohibited under the Universal Declaration of Human Rights (1948),

art. 5; the International Covenant on Civil and Political Right (1992), art. 7 and the Geneva

Convention (III) Relative to the Treatment of Prisoners of War (1949), art. 3(1)(a) to name but a

few.5 Letter from Michael Mukasey, U.S. Attorney General, to Members of the Senate Judiciary

Committee (Oct. 30, 2007) ), available at

http://online.wsj.com/public/resources/documents/mukasey20071030.pdf (last visited December

10, 2007).6 Senate Judiciary Committee Hearing for Nomination of Attorney General, Day Two Tr.

(Oct. 18, 2007), available athttp://www.washingtonpost.com/wp-

srv/politics/documents/transcript_mukasey_hearing_day_two_101807.html.7 Id.8

Dana Milbank,Logic Tortured, THE WASHINGTON POST, Nov. 2, 2007, at A2, available athttp://www.washingtonpost.com/wp-dyn/content/article/2007/11/01/AR2007110102342.html

(last viewed Dec. 10, 2007).9 See Pincus, supra note 310 Howard S. Levie, Documents on Prisoners of War, in 60 INTERNATIONAL LAW STUDIES

(US Naval War College 1979

8/14/2019 2/10/09 1:04 Am

3/17


Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 353

the cure.11 Despite the aforementioned cases appearing to support the

proposition that waterboarding could amount to torture and any debate over

this proposition rendered purely semantic, on closer inspection, the label of

torture should not be applied so hastily.Some have criticized the purpose of this paper, arguing that Judge

Mukaseys testimony and legal investigations - such as the Bybee

memorandum12 - are irrelevant exercises and that this papers methodology

continues in a similar vein. These critics claim no investigation should be

made that waterboarding is clearly torture. And any such investigation

is simply a legally semantic game, attempting to define-away torture. This

criticism is hereby rejected. Those who approach the question of whether

waterboarding amounts to torture with simple clarity tend to provide a

moral reflex position as opposed to a deep legal analysis of the extremely

emotive somewhat ethical quagmire of torture. A deep consideration of the

legal framework of torture demonstrates that what amounts to torture is

anything but clear, especially since there is no universal consensus on thedefinitional components of torture, let alone an actual definition.

The ambiguous nature of the definition of torture is merely

emphasized by the clear legal distinction made between torture and

cruel, inhuman or degrading treatment or punishment.13 This distinction

emphasizes the need to apply any interrogation technique to a legal

framework to determine whether it amounts to torture or potentially the

lower standard of cruel, inhuman or degrading treatment or punishment.14

Hence, the rejection of the position that legal analysis of the definitional

requirements of torture is irrelevant.

Additionally, one function of the law is to generate a legal framework

within which actions may be placed to determine their legal status.

Inherent in such a framework is the process of defining the terms of the

11 White v. State, 91 So. 903, 904 (Miss. 1922); Fisher v. State, 110 So. 361, 362 (Miss.

1926).12 Memorandum from Jay S. Bybee, Assistant U.S. Attorney General, to Alberto R. Gonzales,

Counsel to the U.S. President (Aug. 1, 2002), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf (hereinafter referred to as

the Bybee memo). The memorandum was a controversial attempt by John Yoo in the Office of

Legal Counsel under President Bush to define torture. It was later superceded by a later OLC

memorandum and is widely criticized.13 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Jun. 26, 1987, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 112. The

distinction can be seen in the UN Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment in the title and fact that torture and cruel, inhuman ordegrading treatment or punishment are considered in separate provisions of the Convention;

articles 1-15 deal with torture only, and the latter considered separately in article 16.14 That cruel, inhuman or degrading treatment or punishment is a lower standard that torture

is established inIreland v. United Kingdom, Series A, No. 25, 2 EHRR 25 (1979-1980), at para

167.

8/14/2019 2/10/09 1:04 Am

4/17



framework and the subsequent interpretation of those definitions.

Proponents of the criticism (that this investigation of whether

waterboarding amounts to torture is irrelevant and merely an attempt to

define away torture), fail to appreciate the distinction between interpretingthe law as legalizing torture (a jus cogens prohibition)15 and interpreting the

law to establish whether an action amounts to torture or cruel, inhuman or

degrading treatment or punishment.

The modern framework of torture has evolved drastically since the

end of World War II. While efforts to reach a universally accepted

definition of torture have yet to reach fruition, the UN Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(hereinafter CAT)16 has been widely ratified. Because of this, the common

law conception of torture and domestic law prohibitions existing at the time

of the aforementioned cases are different from the modern day conception

that has been legislatively codified. Prior to the UN Declaration Against

Torture (1948), there had been no international instrument that attempted todefine it.17 Thus, any historical precedent provides little guidance for

interpreting what actions amount to torture by the modern day conception

of the term.

There is little doubt that waterboarding is morally wrong and may

constitute cruel, and degrading treatment; Judge Mukasey himself referred

to the technique as on a personal basis, repugnant.18 The purpose of this

paper, however, is to establish whether waterboarding constitutes torture;

not within modern conceptions of morality, but within the confines of the

law.

II. A LEGAL DEFINITION OF TORTURE

Historically, there have been differing global conceptions on the

precise definition of torture. Given my goal to analyze waterboarding in

light of current standards, a presumption shall be made in favor of the CAT

definition as it constitutes the most widely accepted definition.19

15 Yoram Dinstein, TheRight to Life, Physical Integrity, and Liberty, in THE INTERNATIONAL

BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 122 (Louis Henkin ed.,

Columbia University Press 1981). (Yoram Dinstein describes the probation against torture as an

integral part of customary international law, and it may have even acquired the lineament of a

peremptory norm of general international law, i.e. jus cogens).16 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; S. Treaty Doc. No. 100-20(1988).

17 BERKELEY STUDIES IN INTERNATIONAL LAW AND ORGANIZATION,IMPLEMENTATION OF

THE TORTURE CONVENTION INTOUNITED STATES LAW AND PRACTICE, 8 (1990).18 See Letter from Michael Mukasey, supra note 5.19 As of Oct. 2, 2007 there were 74 signatories and 145 parties to CAT.

8/14/2019 2/10/09 1:04 Am

5/17



According to the CAT:

Torture means any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person for such purposes

as obtaining from him or a third person information or a confession, orintimidating or coercing him or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by or at

the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity. It does not include pain or

suffering arising only from, inherent in or incidental to lawful sanctions.20

The definition may be condensed into 4 elements; (a) severe physical

or mental pain, (b) intentional administration for a purpose such as gaining

information or intimidation, (c) under state authority, and (d) not in

connection with lawful sanctions. For the purposes of this paper,

consideration of (c) and (d) appears futile, since the context in which

waterboarding arises in relation to the current debate is under official

governmental authorization21 and as an interrogation technique (thus not asa lawful sanction). It will be assumed that waterboarding satisfies (c) and

(d). Consideration will instead focus on the elements of severity and

intention.

Severity and intention are crucial components of most proposed

torture definitions. The European Commission determined that torture has

a purpose22 (inherent to purpose is an intention to attain that purpose)

and is an aggravated form of inhuman treatment23 (implying severity).

The International Criminal Tribunal of Yugoslavia Appeals Chamber

described elements of torture in armed conflict being the infliction, by the

intentional act or omission, of severe pain or suffering.24 Furthermore, the

U.S. legislation implementing the CAT [8 C.F.R. 208.18(A)(5)] describes,

an act specifically intended to inflict severe physical or mental pain or

suffering.25

One final distinction must be acknowledged. Due to the absence of a

universally accepted definition of torture and ambiguity surrounding some

of the terms of the CAT, conceptions of precisely what the CAT prohibits

may deviate from state to state, depending on state interpretations. Since

the greatest amount of controversy on the issue is in the United States, this

paper will consider whether waterboarding constitutes torture under the

20 See CAT, supra note 16, at art. 1(1); S. Treaty Doc. No. 100-20 (1988).21 See Brian Ross & Richard Esposito, supra note 1.22

J.HERMAN BURGERS &HANS DANELIUS,THE UNITED NATIONS TORTURE CONVENTIONAGAINST TORTURE:AHANDBOOK ON THECONVENTION AGAINSTTORTURE AND OTHER CRUEL,

INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT 115 (1988).23 Id.24 Prosecutor v.Anto Furundzija, Case No. IT-95-17/1-T, Judgement, (Dec. 10 1998).25 8 C.F.R. 208.18(a)(5) (2008).

8/14/2019 2/10/09 1:04 Am

6/17



United States interpretation.26

The United States made its interpretation clear by including a

declaration and understanding to the CAT during the advice and consent

procedure in the Senate, both of which were ultimately interpreted by theU.N. as constituting reservations.27 The significance of the label

reservation is that a reservation alters the effect of the treaty in so far as

it may apply to the relations of the state with the other states. 28 Provided

no state objects to the reservation, the interpretation as provided for in the

reservation binds that state in its international affairs. Thus, as the

understanding interpreted the definition of torture,29 and no state

objected,30 said interpretation of torture is what binds the United States in

their international affairs, and as such is the interpretation that will govern

this discussion of waterboarding.

III. SEVERITY

As a concept, severity is nearly impossible to define and quantify in

a categorical manner. A legal definition is elusive under both the CAT and

8 C.F.R. 208.18, thus leading to interpretations of its ordinary or natural

meaning.31 Such interpretations have generated certain elements deemed

indicative of severity.

The most common definition of severe is [g]rievous, extreme and

hard to sustain or endure.32 The idea of an extreme action is compatible

with the interpretation of the Senate Foreign Relations Committee in their

report recommending ratification of the CAT. They described torture as an

extreme practice which is universally condemned.33 The element of

26 However, since the interpretation concerns an international treaty, case law and

interpretations of the international community will be considered in order to provide a conclusive

position of how the elements of the US interpretation of torture may be considered in the

international arena.27 See CAT, supra note 16.28 Power Auth. of N.Y. v. Fed.. Power Commn., 247 F.2d 538, 541 (D.C. Cir. 1957).29 The elements of this interpretation will be considered when they arise in the following

analysis.30 There was no direct objection to the reservation. Germany made an objection however this

was not in relation to the definition of torture, but concerned other elements of the United States

reservations. The Netherlands noted that the US definition appears to restrict the scope of the

definition of torture under article I of the Convention. However, it followed that this had no

impact on the obligations of the United States of America under the Convention. Therefore,

presumably, this does not amount to an objection. See CAT, supra note 16.31

FDIC v. Meyer, 510 U.S. 471, 476 (1994).32 Of pain, suffering, loss, or the like: Grievous, extreme and Of events or

circumstanceshard to sustain or endure see Oxford English Dictionary Online (1989),

http://dictionary.oed.com/cgi/entry/50221106?single=1&query_type=word&queryword=severe&

first=1&max_to_show=10 (last visited Dec. 10, 2007).33 S.EXEC.REP. No. 101-30, at 13-14 (1990).

8/14/2019 2/10/09 1:04 Am

7/17



extremity manifests itself in further elements of torture. It implies that

torture occurs in limited circumstances34 and acts as the gravest form of

cruel, inhuman or degrading treatment or punishment.35 The latter is

supported by the European Court of Human Rights which held that 5interrogation techniques did not occasion suffering of the particular

intensity and cruelty implied by the word torture.36

Analysis of international caselaw indicates that the clearest forms of

extreme actions amounting to torture occur when various actions are

amalgamated and administered over a prolonged period of time. The

Human Rights Commission found torture when the victim experienced

submarino,37 electric shocks, insertion of rifles into his anus and

prolonged standing, and being hooded with a piece of wood thrust into his

mouth.38 In Estrella v. Uruguay (1980)39 the victim suffered electric

shocks, beatings with rubber truncheons, punches and kicks, hanging with

arms tied behind his back, submersion into water until near asphyxiation

and standing with legs apart and arms raised for more than 20 hours. InSendic v. Uruguay (1979),40 the victim suffered plantnes,41 food

deprivation and beatings over three months. In both cases, torture was

found to have occurred.

The key elements in these cases are the prolonged length of time the

individual was subjected to the actions and the administration of multiple

techniques. This interpretation is consistent with the ruling in Price v.

Socialist Peoples Libyan Arab Jamahiriya: absent descriptions by the

victim of the duration, frequency, parts of body affected and weapons used

in the beatings, the beatings would not constitute torture.42

This is not to say, however, that a lone incident cannot constitute

torture. The European Court of Human Rights (ECtHR) has held that an

34 David P. Stewart, The Torture Convention and the Reception of International Criminal

Law Within the United States, 15 NOVA L.REV. 449, 455 (1991).35 See CAT, supra note 16, at art. 16.; S. Treaty Doc. No. 100-20 (1988) (acts of cruel,

inhuman or degrading treatment or punishment which do not amount to torture as defined in

article 1).36 See Ireland v.. United Kingdom, supra note 14. These interrogation techniques constituted,

hooding, wall-standing, subjection to white noise, deprivation of sleep and deprivation of food

and water.37 Placing the detainees head in foul water.38 Grille Motta v. Uruguay (11/1977), Report of the Human Rights Committee, GAOR, 35 th

Session, Supplement No. 40 (1980), Annex XI, para. 2.39 Estrella v. Uruguay (74/1980), Report of the Human Rights Committee, GAOR, 38th

Session, Supplement No. 40 (1983), Annex XII, para. 1.6.40 Sendic v. Uruguay (63/1979), Report of the Human Rights Committee, GAOR, 37th

Session, Supplement No. 40 (1982), Annex VIII, para. 2.4.41 The practice of plantones involves forcing prisoners to remain standing for long periods of

time.42 Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002).

8/14/2019 2/10/09 1:04 Am

8/17



especially cruel act of rape43 and exercise of Palestinian hanging44

constitute specific forms of torture on their own. While courts are

generally not inclined to classify individual acts, these cases seem to dictate

that if the act involves the infliction of pain and suffering at a level thatputs it into the category of torture,45 it alone can constitute torture.

Therefore, for waterboarding to reach the level of torture, it must

either occur over a prolonged period of time and in amalgamation with

other acts inflicting pain and suffering, or be of such a level of pain and

suffering in itself that it alone qualifies it as torture.

In determining the level of intensity required for waterboarding to

amount to torture, the district court held in Price v. Socialist Peoples

Libyan Arab Jamahiriya that [t]he critical issue is the degree of pain and

suffering that the alleged torturer intended to, and actually did, inflict upon

the victim. The more intense, lasting, or heinous the agony, the more likely

it is to be torture.46

When an action involves infliction of physical pain or suffering, thesuffering may be more easily quantified and ascertainable by reference to

the injuries inflicted and any long-term damage caused. It has been

suggested that if treatment results in death, there is clear evidence of

torture.47 However, mental pain and suffering add another level of

complexity and ambiguity. Often such injuries do not physically manifest

themselves and as a result are more difficult to analyze.

For this reason, consideration of waterboarding is limited to not

physical, but rather mental damage. Mental pain is more ambiguous and

will be experienced during both physical and touchless waterboarding.

Thus, if it can be established that the mental pain alone is sufficiently

extreme so as to render waterboarding torture, it will follow that physical

forms of waterboarding clearly amount to torture.

A. The Effects of Waterboarding

The psychological effect of waterboarding had been described by Dr.

Allen S. Keller during congressional testimony as mock drowning

producing:

[A] terrifying fear of drowning clearly can result in immediate and

long-term health consequences. As the prisoner gags and chokes, the terror

43 Aydin v. Turkey, App. No. 23178/94 75 ECHR, 86 (1997).44

Aksoy v. Turkey, App. No. 21987/93 68 ECHR, 64 (1996). Palestinian Hanging involvestying a prisoners hands behind their back and then suspending the prisoner in the air.

45 NIGEL S.RODLEY,THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 89 (2d

ed. 2002).46 SeePrice, supra note 42, at 92-93.47 See RODLEY,supra note 45, at 87.

8/14/2019 2/10/09 1:04 Am

9/17



of imminent death is pervasive, with all of the physiologic and

psychological responses expected, including an intense stress response,

manifested by tachycardia, rapid heart beat and gasping for breath. There is

a real risk of death from actually drowning or suffering a heart attack ordamage to the lungs from inhalation of water. Long term effects include

panic attacks, depression and PTSD.48

Dr. Keller also described how one patient years later still felt as if he

was gasping for air whenever he showered or went out in the rain.49

Major General Jack Rives described waterboarding as intended to cause

severe mental suffering involving a threat of imminent death by

asphyxiation. 50

Additionally, a report compiled by Physicians for Human Rights and

Human Rights First described waterboarding as significant psychological

harmvirtually identical to the significance of the harm cause by physical

abuse.51 It described the potential forms that mental harm could take:

PTSD manifested in prolonged, recurring flashbacks and nightmares;significant impairment and instability in life functions; suicidal ideation;

and, weakened physical health, depression manifested in self-destructive

and suicidal thoughts and behavior, and psychosis in the form of

delusions, bizarre ideations and behaviors, perceptual distortions, and

paranoia.52

In determining whether such consequences are of sufficient extremity,

Estrella v. Uruguay should be considered. Mr. Estrella experienced a

mock amputation with an electric saw53 of his hands from which he

suffered a loss of sensitivity in both arms and hands for eleven months,

[and] discomfort that still persists in the right thumb. 54 The Human

Rights Committee held that this amounted to psychological torture. If

temporary loss of sensitivity and discomfort constitutes the requisite

48 U.S. Interrogation Policy and Executive Order 13440: Hearing Before the S. Select Com.

on Intelligence, Statement of Allen S. Keller, Director, Bellevue/NYU Program for Survivors of

Torture, 6 (Sept. 25, 2007) available at

http://physiciansforhumanrights.org/library/documents/testimony/allen-keller-testimony-to.pdf

(last viewed Dec. 10, 2007). PTSD refers to Posttraumatic Stress Disorder.49 Id.50 Letter from Physicians for Justice to Senate Judiciary Committee (Nov. 1, 2007), available

at

http://physiciansforhumanrights.org/library/documents/letters/mukaseyoppositionletterfinal1.pdf.51 Summary ofEnhanced Interrogation Techniques: The Risk of Criminality by Physicians

for Human Rights and Human Rights First(forthcoming July 22, 2007), available at

http://psychoanalystsopposewar.org/blog/2007/07/22/enhanced-interrogation-techniques-the-risk-of-criminality/.

52 Id.53 Estrella v. Uruguay (74/1980), Report of the Human Rights Committee, GAOR, 38th

Session, Supplement No. 40 (1983), Annex XII, para. 1.6.54 Id.

8/14/2019 2/10/09 1:04 Am

10/17



severity, then a fortiori so must long-term panic attacks, depression, and

PTSD.

IV. SEVERE MENTAL PAIN OR SUFFERING

It may be that the mental harm produced by waterboarding is

sufficiently extreme to satisfy the severe element of torture. However, 8

C.F.R. 208.18 provides two further severity requirements. 8 C.F.R.

208.18(a)(4) defines severe mental pain or suffering as:

[T]he prolonged mental harm caused by or resulting from

the intentional infliction or threatened infliction of severe physical pain

or suffering;

the administration or application, or threatened administration or

application of mind-altering substances or other procedures calculated to

disrupt profoundly the senses or the personality;

the threat of imminent death;

the threat that another person will imminently be subjected to death,

severe physical pain or suffering, or the administration or application of

mind-altering substances or other procedures calculated to disrupt

profoundly the senses or personality.55

The mental pain must therefore be prolonged and result from a predicate

act.56

A. Prolonged Mental Harm

The difficulty in quantifying mental harm inflicted through

waterboarding is that prolonged denotes lengthened, extended (in spaceor time).57 However, one waterboarding exercise lasts on average less than

35-40 seconds with the longest reported experience lasting two and a half

minutes.58 It seems therefore that mental harm must last beyond the

55 8 C.F.R. 208.18(a)(4)(i)-(iv).56 There is debate over whether the prolonged mental harm is a separate element or presumed

to arise when one of the predicate acts is established. In the view of the author, it is consistent

with the Senates understanding of the CAT to consider it a separate requirement since the

Senates understanding to the CAT specifically refers to prolonged mental harm not the

prolonged mental harm. As the Levin memo considers, it is unlikely that the inclusion of the

word the was meant to change the definition of mental pain, particularly since the purpose of 8

C.F.R. 208.18 was to implement the obligations arising under CAT.57

Oxford English Dictionary, available athttp://dictionary.oed.com/cgi/entry/50189826?single=1&query_type=word&queryword=prolonge

d&first=1&max_to_show=10.58 Khalid Sheikh Mohammed, the alleged mastermind behind the September 11, 2001,

terrorist attacks reportedly endured two and a half minutes of a waterboard exercise. See

interview by Bill OReilly with Brian Ross, ABC news reporter, (Sept. 25, 1006) (transcript

8/14/2019 2/10/09 1:04 Am

11/17



duration of the waterboarding (although not necessarily be permanent)59 or

that a series of waterboards must be administered over a length of time

sufficient to establish that the pain that arises through the amalgamated

waterboardings constitutes prolonged. Thus, if a fear of drowning whilstthe waterboarding persists is the only harm inflicted and there is no residual

damage, can torture exist under this definition?

A further question in the same vein is whether torture can be

established solely on the basis of the effects it produces. In such a case, it

is conceivable that an individual with an unusually strong resolve or high

tolerance for pain may experience only mild discomfort whereas an elderly,

fragile individual experiencing identical treatment would suffer permanent

damage. Can one conclude that only the latter constituted torture as the

former individual experienced neither prolonged nor severe pain? If this

position is followed, issues arise concerning how one proves that the

individual with a high pain threshold did not in fact suffer, when - as

considered previously - the severity of mental pain is near impossible toquantify for it is subjective. This reasoning could lead to abuse should the

government consistently administer torturous techniques and state that the

victims do not suffer sufficiently as they are trained in techniques of how to

withstand pain.

These questions get at the crux of the debate over what torture is; an

action that must be termed torture due to its objectively extreme nature or

an action that subjectively causes pain of sufficient severity to amount to

torture. Is an act torture by its nature, so that whenever and to whomever it

is administered it constitutes torture, or is an act torture due to its subjective

effect?

It seems that an act constitutes torture because of the effects

experienced by an individual, since torture is generally defined in terms of

the extreme pain it causes. The central element of torture appears to be its

effect. Pushing an athletic young man to the floor may have little effect

while pushing an elderly woman to the floor may cause her to break a hip.

Whereas the former example would clearly not constitute torture, the later

case is more ambiguous.

Consider now the original question posed as to whether a lone

waterboarding experience with no long-lasting effects and only an intense

fear of drowning during the waterboard can amount to torture. In light of

the above analysis, the answer appears to be no, as it does not result in

available athttp://corner.nationalreview.com/post/?q=NWYxY2RkOGE2YjExNzc0OTBhMjQ5MGQ5MTUz

YmNlY2Q=).59 Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal

Counsel, to Deputy Attorney General (Dec. 30, 2004),

http://www.usdoj.gov/olc/18usc23402340a2.htm.

8/14/2019 2/10/09 1:04 Am

12/17



prolonged mental harm. The harm in this example is the fear of death that

lasts less than two and a half minutes. A fear of imminent death may be

sufficient to establish the severity element, but it is dubious that

experiencing fear for two and a half minutes can ever constitute aprolonged time.60

Of course the above scenario is only a hypothetical one. In most

accounts of waterboarding, the individual suffers the long-term effects

previously described. The existence of such long-term psychological

damage likely constitutes prolonged harm. In the case ofMehinovic v.

Vuckovic the individuals experienced fear of death during games of

Russian roulette from which they continue to suffer long-term

psychological harm61 ten years after the ordeal. The court described this

case as prolonged mental harm sufficient enough to constitute torture.

This raises the question of what length of time amounts to prolonged

time. The parameters appear to be psychological damage lasting eleven

months,62 and psychological pain only persisting during the ordeal withno effects afterwards. 63 The latter did not persist long enough to warrant

the label of prolonged harm, even though the subjects were threatened with

death.

In conclusion, while waterboarding creates a fear of imminent death,

this is not sufficient to warrant prolonged harm if not in conjunction with

psychological damage persisting after the experience. Alternatively,

should psychological damage then remain due to the severity of the earlier

descriptions of likely psychological waterboarding effects, such effects will

likely persist for at least a period of months which will satisfy the

prolonged harm condition.

B. Predicate Act

The debate concerning whether predicate acts are exclusive is an

unnecessary consideration here. Waterboarding appears to fall neatly

within (C): As Brian Ross states, it creates a gag reflex, where you think

60 Some may be appalled by an argument seeming to conclude that a waterboard could be

permissible on the basis of its short duration in light of the severe damage it causes. However, it

must be noted that the argument is notsuggesting that despite severe damage, waterboarding is

permissible as its duration is short. Should the mental effect be so serious as to warrant such a

reaction it is unlikely that the only effect would be fear and no long lasting damage experienced

and if such long-term effects do occur then the prolonged time element is already satisfied sincethe damage is prolonged.

61 Mehinovic v Vuckovic 198 F. Supp 2d 1322, 1346 (N.D. Ga. 2002).62 Estrella v Uruguay (74/1980) Report of the Human Rights Committee, GAOR, 38 th session,

Supplement No. 40 (1983), Annex XII, para 1.6.63 Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003).

8/14/2019 2/10/09 1:04 Am

13/17



you are about to die, you think youre drowning.64 The fear of imminent

death is also effectively analogous to the underlying experience during a

mock execution, and a mock execution has been held to constitute a threat

of imminent death for the purposes of 8 C.F.R. 208.18(a)(4)(iii).65

V. INTENTION

The intention element of torture attracts the most controversy. Such

controversy results from the Senates understanding to the CAT and its

domestic implementing legislation (8 C.F.R. 208.18) seemingly adding a

requirement for specific intent to the definition of torture. The

understanding states that in order to constitute torture, an act must be

specifically intended to inflict severe physical and mental harm,66 and this

wording is mirrored in 8 C.F.R. 208.18(a)(5). 67

In the recent case ofPierre v. Gonzales,68 the Second Circuit Court of

Appeals considered whether specifically intended in the CAT required ashowing of general or specific intent for the purposes of criminal law. The

appellant argued that finding specific intent would impermissibly narrow

CAT.69 Nevertheless, the court deferred to Re J-E70 where the Board of

Immigration Appeals found specific intent as taken directly from the

understanding contained in the Senates ratification resolution.71

The court in Pierre also considered Zubeda v. Ashcroft,72 where the

defendant had attempted to disregard the specific intent requirement by

arguing that one can specifically intend without specific intent.73 The

reasoning behind this seemingly contradictory conclusion flowed from the

phrase specifically intended being followed by the statement, [a]n act

that results in unanticipated or unintended severity of pain and suffering is

64 Interview by Bill OReilly with Brian Ross, ABC news reporter, (Sept. 25, 1006)

(transcript available at

http://corner.nationalreview.com/post/?q=NWYxY2RkOGE2YjExNzc0OTBhMjQ5MGQ5MTUz

YmNlY2Q=).65 Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales,

Counsel to the President 12 (Aug. 1, 2002), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf.66 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment Reservations, Declarations and Understandings, available at

http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm (last viewed Dec. 10,

2007).67 8 C.F.R. 208.18(a)(5).68

Pierre v Gonzales, 502 F.3d 109 (2d Cir. 2007).69 Id. at 116.70 Re J-E 23 I. & N. Dec. 291 (2002).71 Id. at 298.72 Zubeda v. Ashcroft, 333 F.3d 463, (3d Cir. 2003).73 Pierre, 502 F.3d supra note 69, at 117.

8/14/2019 2/10/09 1:04 Am

14/17



not torture.74 The defendant claimed that by including this statement, the

legislation intended to limit torturous acts to those acts where suffering is

purposefully inflicted or the foreseeable consequence of deliberate

conduct75

as opposed to suffering that is the accidental result of anintended act76 and the former is not the same as requiring a specific intent

to inflict suffering.77

The court in Pierre rejected this conclusion. They read 8 C.F.R.

208.18(a)(5) as distinguishing a severity of pain that is intended (torture)

and an unanticipated severity (not torture), and were not concerned with

intention in terms of foresight.78 The court in Pierre went on to conclude

that an act which must be specifically intended to inflict severe physical or

mental pain or suffering bespeaks specific intent.79

Thus according to recent case law, for an act to constitute torture the

element of specific intent must be satisfied. As Pierre concluded, [i]t is

true that, given the United States understandings of the CAT, even

suffering of the utmost severity cannot constitute torture unless it isspecifically intended.80

Precisely what amounts to specific intent remains unclear. This can

be seen from the Levin Memo that stated the termis ambiguous

andthe courts do not use it consistently and concluded that [w]e do not

believe it is useful to try to define the precise meaning.81 However, the

conclusion of the memo is an unconvincing and weak admission of defeat

in generating a conclusive interpretation of the legal standards of the torture

statute, which was its stated purpose.

LaFave and Scott illustrate the inconsistency surrounding specific

intent:

Sometimes general intent is used in the same way as criminal intent to

mean the general notion ofmens rea, while specific intent is taken to mean

the mental state required for a particular crime. Or, general intent may be

used to encompass all forms of the mental state requirement, while specific

intent is limited to the one mental state of intent. Another possibility is that

general intent will be used to characterize an intent to do something on an

undetermined occasion, and specific intent to denote an intent to do that

74 8 C.F.R. 208.18(a)(5).75 Zubeda, 333 F.3d supra note 73, at 473.76 Id.77 Id.78

Pierre, 502 F.3d supra note 69, at117.79 Id.80 Id. at 121.81 Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal

Counsel, to Deputy Attorney General (Dec. 30, 2004), available at


8/14/2019 2/10/09 1:04 Am

15/17



thing at a particular time and place.82

US v. Bailey explains this confusion from the fact that intention,83

due to its inherent ambiguity, has been largely replaced by a hierarchy of

culpable states of mind.84

These states of mind, in order of descendingculpability, are purpose, knowledge, recklessness and negligence.

Confusion arises from courts mixing old concepts of intention with newer

concepts of culpable mindsets, and attempts to define each in terms of the

other.

Rather the distinction should be made that [i]n a general sense,

purpose corresponds loosely with the common-law concept of specific

intent, while knowledge corresponds loosely with the concept of general

intent.85 Explaining these concepts, the court suggested that acting with

purpose arises if he consciously desires that result, whatever the likelihood

of that result happening as opposed to acting knowingly if he is aware

that that result is practically certain to follow from his conduct, whatever

his desire may be as to the result. 86This is consistent with the definition put forward in Blacks Law

Dictionary (the intent to accomplish the precise criminal act that one is

later charged with)87 and the Bybee Memos conclusion that knowledge

alone that a particular result is certain to occur does not constitute specific

intent.88

From the aforementioned cases, it seems that the key element

differentiating specific from general intent is that the former involves an

aim of achieving the precise end of the action, whereas the latter may occur

simply from knowing that the effect of an action may occur.

The interpretation of the Bailey court is by no means the only possible

interpretation, though it seems the most stringent and narrow. For

example, the Levin memo contrasted the case ofUS v. Neiswender (1979),

in which specific intent consisted of the lower test of mere knowledge or

notice that his act would have likely resulted in the proscribed

outcome,89 which appears analogous to Baileys concept of general intent.

82 WAYNE R. LAFAVE & AUSTIN W. SCOTT JR., HANDBOOK ON CRIMINAL LAW 201-202

(1972).83 US v Bailey, 444 U.S. 394 (1980).84 Id. at 404.85 Id. at 405.86 Id. at 404.87 BLACKS LAW DICTIONARY 814 (7th ed. 1999).88

Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales,Counsel to the President 4 (Aug. 1, 2002), available at

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf.89 Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal

Counsel, to Deputy Attorney General (Dec. 30, 2004), available at


8/14/2019 2/10/09 1:04 Am

16/17



Therefore, should one establish waterboarding under Bailey, a fortiori it

will constitute torture under broader interpretations of specific intent.

According to this framework of specific intent in Bailey,

waterboarding must be carried out with the conscious desire that severemental pain or suffering follow to constitute torture. Uncertainty arises

though from differing interpretations of the mental state accompanying an

interrogation technique such as waterboarding. To avoid the label of

torture, the argument follows that, despite inflicting severe pain, the

purpose was not so much to cause the pain as it was to extract information

from the victim. Under this reasoning, waterboarding is merely the means

to the end of gathering information.

This argument is more successful in circumstances where a particular

outcome is not an absolute certainty; when the actions effect and its

intention are extremely separate. However, the intention of the

waterboarding (information) is achieved precisely by causing a negative

effect: the mental harm. The success of waterboarding, relies on producinga level of mental anguish that cannot be withstood so that subjects are

broken and divulge information. The argument against the torture label

conflates intention with the motive behind it and it is an established

principle that motive and intention are two separate phenomena; motives

do not supplant the criminal laws own resources for determining

whether the fault element for a given crime is present.90

Therefore, due to the inability to disconnect the severe harm

waterboarding causes from the intention to cause said pain, the actor cannot

deny that achieving that pain is his intention.

VI. CONCLUSION

To satisfy the severity requirement for torture, waterboarding must

constitute (1) a severe act causing (2) severe mental pain or suffering

arising from (3) a predicate act. First, this paper has shown that severe

is analogous to an extreme practice which is indicated by prolonged

infliction and repetition of waterboarding. Alternatively a single

waterboard may be extreme if the level or pain or suffering rises to the

level of torture. This level includes lasting heinous and intense pain or

suffering. In light of Dr. Kellers description of the effects of

waterboarding, this element is satisfied.

Second, waterboarding has been shown to constitute severe mental

pain and suffering if one waterboard causes prolonged mental damage ormultiple waterboards are administered over a prolonged time. While

merely experiencing fear during one waterboard is unlikely to amount to

90 WILLIAM WILSON,CENTRAL ISSUES IN CRIMINAL THEORY 129-130 (2002).

8/14/2019 2/10/09 1:04 Am

17/17



torture, due to the severity of the effects of waterboarding, that solely fear

is experienced is very unlikely.

Third, waterboarding causes a fear of imminent death, which satisfies

the predicate act element of threat of imminent death.In addition to being severe, waterboarding must also be intentionally

inflicted to constitute torture. While many object to an interpretation that

specific intent, as opposed to general intent, is required, this conclusion

was undeniably the intention of Congress and was not objected to by

members of the U.N.: thus, it governs U.S. legal relations. To change this

conclusion, pressure should be placed on Congress and not the Executive,

to change the law.

However, even with the requirement for specific intent, waterboarding

may still satisfy the intent element since the inevitability of causing the

prohibited level of pain or suffering is intrinsically linked to the intention

of extracting information. This makes it practically impossible to deny that

one consciously desired to inflict severe pain and suffering.This paper addressed techniques of waterboarding inflicting mental

pain and suffering and has established that an argument for torture can be

made. It therefore follows a fortiori that waterboarding techniques

involving the infliction of physical pain or suffering will also constitute

torture due to the presence of mental pain and suffering.

This conclusion thus suggests that waterboarding is prohibited as a

violation of the jus cogens prohibition of torture and is also prohibited by

all four Geneva Conventions.91 Continuing to administer waterboarding

will constitute a war crime under the Charter of the International Military

Tribunal,92 a grave breach of the Geneva Conventions,93 and a violation of

common article 3 of the Geneva Conventions.94

In conclusion, governments that continue to use waterboarding as a

method of interrogation may want to consider rounding up their legal

teams.

91 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, art. 12(2), Aug. 12, 1949, 6 U.S.T. 3114; 75 U.N.T.S. 31; Geneva

Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked

Members of Armed Forces at Sea, art. 12(2), Aug. 12, 1949, 6 U.S.T. 3217; 75 U.N.T.S. 85;

Geneva Convention (III) Relative to the Treatment of Prisoners of War, art. 17(4), Aug. 12, 1949,

6 U.S.T. 3316; 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the protection of Civilian

Persons in Time of War, art. 32 Aug. 12, 1949, 6 U.S.T. 3516; 75 U.N.T.S. 287.92

Charter of the International Military Tribunal, art. 6(b), Aug. 8, 1945, 59 Stat. 1544, 82U.N.T.S. 279.

93 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949), art. 130,

Aug. 12, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135.94 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949), art. 3(1)(a),

Aug. 12, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135.

Date post:	30-May-2018
Category:	Documents
Upload:	airb13
View:	221 times
Download:	0 times