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DOES WATERBOARDING CONSTITUTE

TORTURE?
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 ...................................................................................... 351

II. A LEGAL DEFINITION OF TORTURE....................................................... 354

III. SEVERITY ............................................................................................ 356

A. The Effects of Waterboarding .................................................. 358

IV. SEVERE MENTAL PAIN OR SUFFERING ............................................... 360

A. Prolonged Mental Harm ........................................................... 360

B. Predicate Act............................................................................. 362

V. INTENTION............................................................................................ 363

VI. 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 to
London to work for Jones Day.
1 Brian Ross and Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC
News, Nov. 18, 2005, http://abcnews.go.com/WNT/Investigation/story?id=1322866 (last visited
Dec. 10, 2007).
351
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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. government’s
alleged 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 Sheldon’s 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
Rouge’s Tuol Sleng torture chambers,8 by the Japanese officer Yukio
Asano 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

2Id.
3Walter Pincus, Waterboarding Historically Controversial, THE WASHINGTON POST, Oct.
5, 2005, at A17, available at http://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 forcing
water into the victim’s 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 at http://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 at
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/01/AR2007110102342.html
(last viewed Dec. 10, 2007).
9 See Pincus, supra note 3
10 Howard S. Levie, Documents on Prisoners of War, in 60 INTERNATIONAL LAW STUDIES
(US Naval War College 1979
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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
Mukasey’s testimony and legal investigations - such as the Bybee
memorandum12 - are irrelevant exercises and that this paper’s 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 the
definitional 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 or
degrading 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 in Ireland v. United Kingdom, Series A, No. 25, 2 EHRR 25 (1979-1980), at para
167.
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354 THE DARTMOUTH LAW JOURNAL Vol. VI:3

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 interpreting
the 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 to
define 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, The Right 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 INTO UNITED 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.
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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 355

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, or
intimidating 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 as
a 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 purpose”22 (inherent to “purpose” is an intention to attain that purpose)
and is “an aggravated form of inhuman treatment”23 (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 CONVENTION
AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE 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).
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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 the
U.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 Comm’n., 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
circumstances…hard 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).
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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 357

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

torture occurs in “limited circumstances”34 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 5
interrogation 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. In
Sendic v. Uruguay (1979),40 the victim suffered plantónes,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 People’s 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 detainee’s head in foul water.
38 Grille Motta v. Uruguay (11/1977), Report of the Human Rights Committee, GAOR, 35th
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).
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“especially cruel act of rape”43 and exercise of “Palestinian hanging”44

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 that
puts 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 People’s
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, the
suffering 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” involves
tying a prisoner’s 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 See Price, supra note 42, at 92-93.
47 See RODLEY, supra note 45, at 87.
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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 or
damage 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
harm…virtually 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 saw”53 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 of “Enhanced” 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.
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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 space
or 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 Senate’s understanding of the CAT to consider it a separate requirement since the
Senate’s 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 at
http://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 O’Reilly with Brian Ross, ABC news reporter, (Sept. 25, 1006) (transcript
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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 361

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 whilst
the 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 to
quantify 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 at
http://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.
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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 a
prolonged 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 of Mehinovic v.
Vuckovic the individuals experienced fear of death during games of
Russian roulette from which they continue to suffer long-term
psychological “harm”61 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” with
no 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 not suggesting 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 since
the 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, 38th 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).
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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 363

you are about to die, you think you’re 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 Senate’s “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 of Pierre v. Gonzales,68 the Second Circuit Court of
Appeals considered whether “specifically intended” in the CAT required a
showing 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 Senate’s 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 O’Reilly 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.
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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
conduct”75 as opposed to “suffering that is the accidental result of an
intended act”76 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 is
specifically intended.”80
Precisely what amounts to “specific intent” remains unclear. This can
be seen from the Levin Memo that stated “the term…is ambiguous
and…the 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 of mens 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
http://www.usdoj.gov/olc/18usc23402340a2.htm.
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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 365

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 descending
culpability, 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.” 86
This is consistent with the definition put forward in Black’s Law
Dictionary (“the intent to accomplish the precise criminal act that one is
later charged with”)87 and the Bybee Memo’s 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 of US 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 Bailey’s 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 BLACK’S 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
http://www.usdoj.gov/olc/18usc23402340a2.htm.
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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 severe
mental 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 action’s 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 producing
a 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 law’s” 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. Keller’s 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 or
multiple 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).

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Fall 2008 DOES WATERBOARDING CONSTITUTE TORTURE? 367

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, 82
U.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.