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Essays
Drop by Drop: Forgetting the History of
Water Torture in U.S. Courts
EVAN WALLACH*
Historical analysis demonstrates that U.S. courts have
consistently held that artificial drowning interrogation
is torture, which, by its nature, violates U.S. statutory
prohibitions.
I. INTRODUCTION .......................................................................469
II. JAPAN’S USE OF WATER TORTURE AGAINST ALLIED POWS
AND THE SUBSEQUENT TRIALS OF THE JAPANESE ...................477
A. United States v. Sawada: Water Torture of the
Doolittle Raiders ............................................................478
B. Water Torture Prosecutions Before Other U.S.
Tribunals ........................................................................482
C. The International Tribunal .............................................490
III. THE PHILIPPINES.....................................................................494
A. The Water Cure During the U.S. Occupation of the
Philippines .....................................................................496
B. The Marcos Regime’s Conduct on Trial........................501
IV. THE TEXAS WATER TORTURE CASE .......................................502
V. CONCLUSION ..........................................................................504
* Judge, United States Court of International Trade. Adjunct Professor, Law of War,
Brooklyn Law School, George Mason Law School, New York Law School. Visiting
Professor, Law of War, University of Muenster. Web master and author,
www.lawofwar.org. Any views expressed in this article are only those of the author. The
author wishes to express gratitude for the research assistance of Daniel Molina of Stanford
University Law School.
This article is respectfully dedicated in general to the Judge Advocate General
Corps of the United States Army, of which the author was a proud member, and specifically,
to M.G. Thomas J. Romig, who so clearly exemplifies the vision which the Corps has of
itself as “committed to justice [and] grounded in values.” Judge Advocate General Corps
Strategic Plan FY 2004–2010: Judge Advocate General’s Corps Transformation 3 (2004),
available at https://www.jagcnet.army.mil/JAGCNETIntranet/JAGCStra.nsf/(JAGCNetDoc
ID)/1C0BA360376A958485257050006754B8/$FILE/JAGCStratPlan04.pdf.
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2007] HISTORY OF WATER TORTURE IN U.S. COURTS 469
Q: Did the questioners threaten you with any other
treatment while you were being questioned?
A: Yes, I was given several types of torture. . . . I
was given what they call the water cure. . . .
Q: What was your sensation when they were pouring
water . . . , what did you physically feel?
A: Well, I felt more or less like I was drowning, just
gasping between life and death.
Excerpts from testimony of Cpt. Chase Jay Nielsen, Record of Sawada
Trial, at 55.1
Congress doesn’t have the power to tie the President’s
hands in regard to torture as an interrogation technique.
. . . It’s the core of the Commander-in-Chief
function. They can’t prevent the President from ordering
torture.
John Yoo, Professor of Law, University of California at Berkeley.2
I. INTRODUCTION
Interrogation techniques using water to induce the sensation
of drowning in the person under questioning (generally called “water-
boarding” in recent news accounts)3 have been hotly debated in
the past few years.4
An August 2002 memo, drafted by John Yoo of the Office of
1. United States v. Sawada, 5 L. Rep. Trials of War Criminals 1 (1948). The
corresponding record is kept at the National Archives in Suitland Maryland [hereinafter
“National Archives”]. On April 18, 1942, then-Lieutenant Colonel James Doolittle led a
flight of B-25 bombers in a raid on the Japanese mainland. The Japanese captured ten of the
raiders, including Cpt. Nielsen, and executed three of them following a trial before a
Japanese Army tribunal. Following the conclusion of hostilities, the U.S. Army prosecuted
the Japanese who convened and participated in the trial. See generally CRAIG NELSON, THE
FIRST HEROES (2002).
2. Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106 (citing to
Prof. Yoo’s statement).
3. See, e.g., David Johnston & James Risen, Aides Say Memo Backed Coercion
Already in Use, N.Y. TIMES, June 27, 2004, at A1 (“Mr. Mohammed was “waterboarded”—
strapped to a board and immersed in water—a technique used to make the subject believe
that he might be drowned, officials said.”); Douglas Jehl & David Johnston, C.I.A. Expands
Its Inquiry into Interrogation Tactics, N.Y. TIMES, Aug. 29, 2004, at 10 (“Former
intelligence officials say that lawyers from the C.I.A. and the Justice Department have been
involved in extensive discussions in recent months to review the legal basis for some
extreme tactics used at those secret centers, including ‘waterboarding,’ in which a detainee is
strapped down, dunked under water and made to believe that he might be drowned.”).
4. See, e.g., Mark Danner, Torture and Truth, N.Y. REV. BOOKS, June 10, 2004, at 46.
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470 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
Legal Counsel of the Department of Justice,5 and signed by then Assistant
Attorney General (now 9th Circuit Judge) Jay Bybee, discussed
interrogation methods and whether they might violate U.S. or
international law.6 According to Newsweek:
Yoo’s . . . memo was prompted by CIA questions
about what to do with a top Qaeda captive, Abu
Zubaydah, who had turned uncooperative. And it was
drafted after White House meetings convened by
George W. Bush’s chief counsel, Alberto Gonzales,
along with Defense Department general counsel William
Haynes and David Addington, Vice-President
Cheney’s counsel, who discussed specific interrogation
techniques, says a source familiar with the discussions.
Among the methods they found acceptable:
“water-boarding,” or dripping water into a suspect’s
face, which can feel like drowning . . .7
The authors of the Yoo Memo concluded that:
[T]orture as defined in and proscribed by Sections
2340-2340A covers only extreme acts. Severe pain is
generally of the kind difficult for the victim to endure.
Where the pain is physical, it must be of an intensity
akin to that which accompanies serious physical injury
such as death or organ failure. Severe mental pain requires
suffering not just at the moment of infliction
but it also requires lasting psychological harm, such as
seen in mental disorders like posttraumatic stress disorder.
. . . Because the acts inflicting torture are extreme,
there is a significant range of acts that though
they might constitute cruel, inhuman, or degrading
treatment or punishment fail to rise to the level of torture.
8
None of the Memo’s analysis explains why water-boarding does not
cause physical or psychological pain sufficient to meet the criminalization
standards it enunciates.
5. John Yoo, Commentary, Behind the ‘Torture Memos,’ U.C. BERKELEY NEWS, Jan.
4, 2005, http://www.berkeley.edu/news/media/releases/2005/01/05_johnyoo.shtml.
6. Memorandum from Jay S. Bybee to Alberto R. Gonzales, Counsel to the President,
on Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340–40A (Aug. 1, 2002),
available at http://www.texscience.org/reform/torture/bybee-olc-torture-1aug02.pdf.
7. Michael Hirsh et al., A Tortured Debate, NEWSWEEK, June 21, 2004, at 52
(emphasis added).
8. See YOO, supra note 5, at 46.
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On October 16, 2006, President Bush signed into law the
Military Commissions Act of 2006.9 That Act principally defines
persons over whom military commissions have jurisdiction, and
modifies procedures and rules before those commissions. It also,
however, modifies10 the War Crimes Act of 1995.11 Section 3 of that
Act, which criminalizes breaches of the Geneva Conventions of
1949, provides that a “war crime” includes conduct which constitutes
a violation of Common Article 3 of the Geneva Conventions12 (covering
conflicts not of an international nature in the territory of a signatory
power). The Military Commissions Act modifies Section 3,
adding a new subsection (d) to limit violations to include, inter alia,
torture and cruel or inhuman treatment, only if they inflict “severe
physical or mental pain or suffering [if not incidental to lawful sanctions].”
13
The apparent intention of the modification of Section 3 was to
affect its application to military commissions by the United States
Supreme Court in Hamdan v. Rumsfeld.14 In addition to stripping defendants
before military commissions of any right to assert the Geneva
Conventions,15 the Act specifically provided that “[n]o foreign
or international source of law shall supply a basis for a rule of decision
in the Courts of the United States in interpreting the prohibitions
enumerated in subsection (d) of [the War Crimes Act].”16
The drafters of the Act, however, were apparently unaware of
or ignored past U.S. legal history. Indeed, despite increasing discussion
of variations of the technique and their application on a global
9. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006),
available at http://thomas.loc.gov/ [hereinafter Military Commissions Act].
10. Id. § 6(b).
11. War Crimes Act of 1996, 18 U.S.C. § 2441 (2000).
12. Military Commissions Act, supra note 9, § 3. See Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12,
1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6
U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War art.
3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of
Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
13. The Military Commissions Act incorporates by reference the definitions of 18
U.S.C. § 2340(2) which provides, inter alia:
severe mental pain or suffering” means the prolonged mental harm caused by
or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or
suffering; . . .
(C) the threat of imminent death; . . .
Military Commissions Act, supra note 9, § 6(d)(2)(D)(A).
14. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795–96 (2006).
15. See, e.g., Military Commissions Act, supra note 9, § 3(a)(1); 10 U.S.C.§ 948b(g).
16. Military Commissions Act, supra note 9, § 6(a)(2).
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472 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
scale,17 nobody seems to remember that, not so very long ago, the
United States, acting alone before domestic courts, commissions, and
courts-martial, and as a participant in the world community, not only
condemned the use of water torture, but severely punished as criminals
those who applied it.18
American judges or commissioners heard American prosecutors
roundly condemn the practice as applied to American servicemen,
in trials both before U.S. military commissions and as participants
in the International Military Tribunal for the Far East
(IMTFE),19 and voted to convict the perpetrators. The United States
was not alone in prosecuting water torture before national tribunals,
nor were the Japanese its sole practitioner. It is worth comparing
those trials with Norway’s prosecution of German defendants for the
same form of misconduct,20 and the United Kingdom’s trial and execution
of Japanese interrogators who used the method.21 There were
17. In a 2006 written parliamentary exchange, the U.K. Foreign Office was asked
whether “the infliction of simulated drowning falls within the definition of torture or cruel
and inhumane treatment used by the government for the purposes of international law.” The
government’s reply from Ian Pearson, a junior Foreign Office minister was that “[w]hether
the conduct constitutes torture or cruel, inhumane or degrading treatment or punishment for
the purposes of the UN Convention Against Torture would depend on all the circumstances
of the case.” James Kirkup, Taking Prisoners to the Edge of Drowning ‘Not Torture’ Says
FO, SCOTSMAN, Mar. 11, 2006, available at http://news.scotsman.com/politics.cfm?
id=367282006.
18. Within the legal and academic community there has been a good deal of discussion
of water torture in various forms under the general rubric of “water boarding.” See generally
THE TORTURE DEBATE IN AMERICA (Karen Greenberg ed., 2005). There has been no
mention, however, of past American government pursuit and prosecution of individuals who
inflicted such treatment on U.S. military personnel (the trials of Japanese war criminals after
World War II) or of American service members who indulged in the technique (the
Philippine insurgency hearings). See, e.g., Charles Brower, The Lives of Animals, the Lives
of Prisoners, and the Revelations of Abu Ghraib, 37 VAND. J. TRANSNAT’L L. 1353 (2005);
Joshua A. Decker, Is the United States Bound by the Customary International Law of
Torture? A Proposal for ATS Litigation in the War on Terror, 6 CHI. J. INT’L L. 803 (2006);
Harold H. Koh, A World Without Torture, 43 COLUM. J. TRANSNAT’L L. 641 (2005); Seth F.
Kreimer, “Torture Lite,” “Full Bodied” Torture, and the Insulation of Legal Conscience, 1
J. NAT’L SEC. L. & POL’Y 187 (2005); Jordan J. Paust, Executive Plans and Authorizations to
Violate International Law Concerning Treatment and Interrogation of Detainees, 43
COLUM. J. TRANSNAT’L L. 811 (2005); Kim L. Scheppele, Hypothetical Torture in the “War
on Terrorism,” 1 J. NAT’L SEC. L. & POL’Y 285 (2005).
19. Commonly known as the Tokyo War Crimes Tribunal, it applied the same general
rules and procedures as the better-known Nuremburg Tribunal. See generally Evan J.
Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes
Trials: Did They Provide an Outline for International Legal Procedure?, 37 COLUM. J.
TRANSNAT’L L. 851 (1999).
20. See, e.g., Trial of Karl-Hans Klinge, Eidsivating Lagmansrett and Supreme Court
of Norway (Dec. 8, 1945 and Feb. 27, 1946), reported in 3 L. REP. TRIALS OF WAR
CRIMINALS 1 (1947) (holding that throwing a victim, naked and with bound hands and feet,
into a bath tub filled with ice-cold water, where he was repeatedly ducked under, constituted
torture).
21. TRIAL OF SUMIDA HARUZO AND TWENTY OTHERS, THE DOUBLE TENTH TRIAL (Colin
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also reports of use of the technique against American service personnel
in other conflicts,22 and by American personnel against Vietnam-
Sleeman & S.C. Silkin ed., 1950). In the trial, conducted in Singapore in 1946, the
prosecution alleged numerous misdeeds and certainly included water torture. As described
by a trial witness:
Witness: [One interrogator] ordered a ladder to be brought, and they tied my
chest and legs to it, my hands already having been tied before. I
was then pressed under three running taps in a bathroom. [Another
interrogator] pressed a gunny bag on my face and they tried to force
water into me. They did not succeed because I struggled and they
left me under one tap which was running directly on my nose and
face, a second flowing towards my body, and the third towards my
legs.
Prosecutor: How long were you left lying there?
Witness: Approximately two hours.
Prosecutor: Did you drink any water?
Witness: Some, but not very much.
Prosecutor: What happened after the two hours?
Witness: The same people came back, including another [military
policeman], who ordered two [assistants] to lay me aside. After half
an hour [the second interrogator] came back and spoke to me in
Chinese. He said I was still healthy, and that I was a young British
agent and would be treated the way all British agents deserved.
Prosecutor: What happened after he made that remark?
Witness: He lifted one side of the ladder and another [assistant] lifted the
other and I was dipped into a pool of water.
Prosecutor: Was this pool in the garage?
Witness: It was a big bathroom inside. The pool is very large and
approximately three feet deep.
Prosecutor: What happened after they carried you to this pool?
Witness: I saw [the first interrogator] adjusting his watch, and then they
placed me into the pool with my head downwards.
Prosecutor: Did your face go under water?
Witness: Yes.
Prosecutor: How long did you stay there?
Witness: I cannot tell you.
Prosecutor: Could you hold your breath for the length of time?
Witness: I just managed.
Prosecutor: Did they then bring your head out of the water?
Witness: Yes, but it was too late to take any breath because they dipped me
again.
Prosecutor: Did this continue?
Witness: Yes.
Prosecutor: For how long?
Witness: I cannot say because I felt like a drowning man. I drank a lot of
water.
Testimony of Khoo Hock Choo, id. at 86–87.
22. For example, USAF Lt. Col. William Harrison described being “tortured with the
‘water treatment’ by Communist North Koreans”:
They used the water treatment. They would bend my head back, put a towel
over my face and pour water over the towel.
I could not breathe. This went on hour after hour, day after day. It was
freezing cold. When I would pass out, they would shake me and begin again.
They would leave me tied to the chair with the water freezing on and around
me.
Air Officer Tells of Torture by Foe, N.Y. TIMES, Aug. 6, 1953, at 3.
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474 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
ese prisoners during the Vietnam conflict.23
“Water cure,”24 “water torture,”25 “water boarding.”26 Under
whatever name, extreme interrogators have long prized the technique,
which, unlike other interrogation methods, imposes severe mental
trauma and physical pain but no traces of physical trauma that would
be discoverable without an autopsy.27
Concerning the mental trauma, Dr. Allen Keller, the director
of the Bellevue/N.Y.U. Program for Survivors of Torture, says he has
treated individuals who have been subjected to forms of nearasphyxiation
similar to water-boarding. He affirms that it is torture,
giving rise to traumatic symptoms years later.28
At least one in-depth study indicates that suffocation by immersion
may cause severe psychological effects.29 Among the cases
studies presented was that of:
[a] 31-year-old man . . . with panic disorder. Typically,
his panic attacks were characterized by predominantly
respiratory symptoms, and there were also
23. Army investigations showed water torture techniques were used by American
troops:
[A witness] identified former Staff Sgt. David Carmon as one of the
interrogators who had tortured detainees.
[Lieutenant Colonel Anthony] Herbert also accused Carmon of subjecting a
detainee to water torture. Herbert said he found Carmon involved in the torture
of a Vietnamese man, pouring water onto a rag placed over the captive’s nose
and mouth.
This technique, called the “water rag,” causes a drowning sensation . . . .
When investigators questioned Carmon in December, 1970, he admitted using
the water rag on a detainee, records show.
“I held the suspect down, placed a cloth over his face and then poured water
over the cloth, thus forcing water into his mouth. The suspect after becoming
choked on the water, confessed that he was a VC and stated that he was a
propaganda man,” Carmon said, according to his sworn statement.
Deborah Nelson & Nick Turse, A Tortured Past, L.A. TIMES, Aug. 20, 2006, at A1.
24. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F.
Supp. 1460, 1463 (D. Haw. 1995). See also infra note 117.
25. International Military Tribunal for the Far East (IMTFE) Record, at 14,168,
available at National Archives and Diamond Library, Columbia Law School, Treasure,
reproduced in facsimile in THE TOKYO WAR CRIMES TRIAL (R. John Pritchard & Sonia
Magbanna Zaide eds., Garland Publishing Inc., 1981).
26. Mark Danner, Op-Ed., We Are All Torturers Now, N.Y. TIMES, Jan. 6, 2005, at
A27 (using term “water boarding” to describe American treatment of al Qaeda prisoners).
27. James Risen et al., Harsh C.I.A. Methods Cited in Top Qaeda Interrogations, N.Y.
TIMES, May 13, 2004, at A1; Johnston & Risen, supra note 3; Jehl & Johnston, supra note 3;
Josh White, Documents Tell of Brutal Improvisation by GIs; Interrogated General’s
Sleeping-Bag Death, CIA’s Use of a Secret Iraqi Squad Are Among Details, WASH. POST,
Aug. 3, 2005, at A1.
28. Mayer, supra note 2, at 106.
29. Colin Bouwer & Dan Stein, Association of Panic Disorder with a History of
Traumatic Suffocation, 154 AMER. J. PSYCHIATRY 1566 (1997).
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2007] HISTORY OF WATER TORTURE IN U.S. COURTS 475
frequent nocturnal panic attacks. On questioning
about traumatic suffocation experiences, the patient
recalled having been tortured as a political prisoner at
age 18. A wet bag had been placed over his head repeatedly,
leading to choking feelings, hyperventilation,
and panic. At about age 20 the patient began to
experience spontaneous panic attacks. The characteristic
reexperiencing, avoidant, and numbing symptoms
of PTSD were less prominent. [The authors’] . . . main
findings were that 1) there was a significantly higher
incidence of traumatic suffocation experiences, both
accidental (near-drowning) and deliberate (torture by
suffocation), in the patients with panic disorder than in
the psychiatric comparison subjects, and 2) within the
group of panic disorder patients, those with a history
of traumatic suffocation were significantly more likely
to exhibit predominantly respiratory symptoms and
nocturnal panic attacks.30
Even among experienced scuba divers, more than half report having
panic attacks while scuba diving.31 It is also clear that respiratory
challenges of all sorts exacerbate symptoms in individuals already
prone to panic attacks.32
The physical effects of immersion are generally described in
studies of drowning victims:
The natural progression of events is fairly typical.
The victim, if conscious, may begin struggling on the
surface. Owing to exhaustion, panic or inability to . . .
swim, this is followed by intermittent submersion,
usually associated with initial breath holding. Large
amounts of fluid are swallowed, usually associated
with vomiting.
The victim then aspirates small amounts of fluid,
which causes laryngospasm, and this in turn may result
in complete airway obstruction lasting up to 2
min. During this period of increasing hypoxia [oxygen
deprivation] and panic, the victim may continue to
swallow fluid into the stomach. Approximately 10–
30. Id. at 1568 (emphasis added).
31. Divers Beware: Training Dives Present Serious Hazards to Fire Fighters, Nat’l
Inst. for Occupational Safety and Health, NIOSH Publication No. 2004-152 (2004).
32. Laszlo A. Papp et al., Respiratory Psychophysiology of Panic Disorder: Three
Respiratory Challenges in 98 Subjects, 154 AMER. J. PSYCHIATRY 1557 (1997).
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476 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
15% of victims proceed to aspirating another aliquot
of fluid, which then causes severe laryngospasm, followed
by increasing hypoxia, possible convulsions,
bradycardia, and cessation of cardiac activity. In the
remainder . . . laryngospasm relaxes secondary to hypoxia
and unconsciousness, when large amounts of
fluid are aspirated.33
Despite the mental and physical trauma, water torture has
been variously described as “torture lite”34 or a “very mild form of
torture.”35 John Yoo, now a U.C. Berkeley law professor,36 testified
in 2005 before the United States Senate that he did not know whether
water-boarding constituted torture.37 It is difficult to believe that
those who describe it that way have ever experienced it.
Captain Nielsen, the U.S. aviator captured by the Japanese in
China following the Doolittle Raid on Tokyo,38 detailed the essence
of the technique:
Well, I was put on my back on the floor with my arms
and legs stretched out, one guard holding each limb.
The towel was wrapped around my face and put
across my face and water poured on. They poured
water on this towel until I was almost unconscious
from strangulation, then they would let up until I’d get
my breath, then they’d start over again.39
Descriptions of water boarding as it is apparently currently applied40
differ very little from the techniques applied by the Japanese. One
investigator describes water-boarding as a technique “in which a
33. Kenneth D. Boffard et al., The Management of Near Drowning, 2 TAUMA 269, 269
(2000).
34. Evan Thomas & Michael Hirsh, The Debate over Torture, NEWSWEEK, Nov. 21,
2005, at 26.
35. STUART MILLER, BENEVOLENT ASSIMILATION: THE AMERICAN CONQUEST OF THE
PHILIPPINES, 1899–1903, at 213 (1982).
36. See http://www.law.berkeley.edu/faculty/yooj/.
37. Sonni Efron, Torture Becomes a Matter of Definition, L.A. TIMES, Jan. 23, 2005, at
A1. “‘It depends on the circumstances,’ he said, including the details of what was done, the
condition of the detainee and what other interrogation methods had been used, Yoo said.”
Id. See also supra note 5.
38. On April 18, 1942, then Lt. Col. James Doolittle led a flight of B-25 bombers in a
raid on the Japanese mainland. See generally CRAIG NELSON, THE FIRST HEROES (2002).
The Japanese captured ten of the raiders and executed three of them following a trial before
a Japanese Army tribunal. Following the conclusion of hostilities, the U.S. Army prosecuted
the Japanese who convened and participated in the trial. See United States v. Sawada, 5 L.
REP. TRIALS OF WAR CRIMINALS 1 (1948).
39. Testimony of CPT Chase Jay Nielsen, supra note 1, at 55.
40. See Danner, supra note 4.
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2007] HISTORY OF WATER TORTURE IN U.S. COURTS 477
prisoner is stripped, shackled and submerged in water until he begins
to lose consciousness.”41 Another current source says that in waterboarding
“a prisoner is strapped down, forcibly pushed under water
and made to believe he might drown.”42 The similarity is startling,
given the opprobrium occasioned by its application to American military
personnel. Furthermore, it is striking because, as discussed at
length below, it bears a stark resemblance to conduct by American
troops in the Philippine insurgency following the Spanish-American
War, just over a hundred years ago.
Water torture has also been described in the U.S. judicial
system in another context. Its use has been punished where it was
applied by government authorities as a means of domestic
questioning. In United States v. Parker,43 a jury convicted a county
sheriff and several of his deputies for interrogating prisoners using
one of the methods described above.
In all cases, whether the water treatment was applied by
Americans or to Americans, or simply reviewed by American courts,
it has uniformly been rejected as illegal, often with severely punitive
results for the perpetrators.
II. JAPAN’S USE OF WATER TORTURE AGAINST ALLIED POWS
AND THE SUBSEQUENT TRIALS OF THE JAPANESE
The clearest exposition of the U.S. position on the use of water
treatment as torture is found in cases in which the Japanese armed
forces applied it to Allied prisoners of war during World War Two.44
Japan’s use of the technique was extremely common,45 and was part
of the widespread use of torture as a tool of interrogation.46 An ex-
41. Danner, supra note 26.
42. Risen et al., supra note 27.
43. CR-H-83-66 (S.D. Tex. 1983), aff’d sub nom. United States v. Lee, 744 F.2d 1124
(5th Cir. 1984).
44. There are numerous instances, both anecdotal and in trial records, of use by the
Japanese of water-based interrogation techniques on civilians. For example, an American
missionary held by the Japanese in Korea reported that he “had received the water cure when
other less elaborate methods of punishment failed to make him agree he had been engaged in
espionage.” According to the reporter, the water cure was “a method of forcing quantities of
water down the throat of the victim until he is unconscious and in a semi-drowning
condition.” Relman Morin, American Defied Torture in Korea, N.Y. TIMES, July 26, 1942,
at 10.
45. See discussion of IMTFE Final Judgment infra at Part II(C).
46. A 1943 Japanese manual entitled “Notes for the Interrogation of Prisoners of War”
included the following:
Care must be taken when making use of rebukes, invective or torture as it will
result in his telling falsehoods and make a fool of you. The following are the
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478 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
tensive discussion of the effectiveness of water questioning, and one
with which some Americans might be expected to be familiar because
of the fame of the victims, was found in the trial of Japanese
officers responsible for the torture, trial, and in some cases execution,
of crew members of the April, 1942 Doolittle raid on Tokyo.
A. United States v. Sawada: Water Torture of the Doolittle
Raiders
Following the end of World War Two the United States participated
in two forms of military tribunals. Most widely known is
the International Military Tribunal for the Far East, which was convened
by General MacArthur as Supreme Commander of the Allied
Powers47 with representative judges from each of the nations engaged
in the war against Japan.48 The IMTFE followed many rules
and procedures similar to those used at the Nuremburg tribunal.49
The United States,50 however, as did other Allied powers,
methods normally to be adopted: (1) Torture which includes kicking, beating
and anything connected with physical suffering. This method is to be used
only when everything else fails as it is the most clumsy one. Change the
interrogating officer when using violent torture, and good results can be had if
the new officer questions in a sympathetic manner.
IMTFE Judgment, Torture Section, Record, supra note 25, at 49,664.
The Japanese Notes make an interesting comparison with the “KUBARK Manual,”
a 1963 CIA interrogation manual obtained by the Baltimore Sun under a FOIA request in
1997. See CIA, KUBARK Counterintelligence Interrogation, July 1963, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/#kubark (“[T]he threat to inflict
pain . . . can trigger fears more damaging than the immediate sensation of pain . . . . In
general, direct physical brutality creates only resentment, hostility and further defiance.”).
47. The IMTFE Charter provides “[b]y command of General MacArthur” that, inter
alia, “[t]he International Military Tribunal for the Far East is hereby established for the just
and prompt trial and punishment of the major war criminals in the Far East. The permanent
seat of the Tribunal is in Tokyo.” Charter of the International Military Tribunal for the Far
East art. 1, in SENATE COMMITTEE ON FOREIGN RELATIONS, A DECADE OF AMERICAN
FOREIGN POLICY: BASIC DOCUMENTS, 1941–1949 (1950), also available at
http://www.yale.edu/lawweb/avalon/imtfech.htm. The Charter further provides that “[t]he
Tribunal shall consist of not less than six members nor more than eleven members,
appointed by the Supreme Commander for the Allied Powers from the names submitted by
the Signatories to the Instrument of Surrender, India, and the Commonwealth of the
Philippines.” Id. art. 2.
48. For a description of the working of the IMTFE, see B.V.A. Röling, Introduction to
THE TOKYO JUDGMENT: THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST
(I.M.F.T.E.) 29 APRIL 1946–12 NOVEMBER 1948, at XI (B.V.A. Röling & C.F. Rüter eds.,
1977).
49. See id. at xii; Wallach, supra note 19, at 863–68.
50. The best-known example is United States v. Yamashita, United States Military
Commission, Manila, Oct. 8–Dec. 7, 1945, 4 L. REP. TRIALS OF WAR CRIMINALS 1 (1948),
appeal denied sub nom. Yamashita v. Styer, 327 U.S. 1 (1946).
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principally including the United Kingdom,51 Australia,52 China,53 the
Soviet Union,54 the Philippines,55 and the Netherlands,56 also tried
lesser war criminals57 before sole state military commissions or tribunals.
Among those tribunals was the Sawada case, of interest here
because some of the Doolittle raiders were questioned using water
torture, and the result of that torture (although not its actual application)
was included in the charges and specifications against the defendants.
58
Sawada and his co-defendants were not specifically charged
with torture in the trial charges and specifications. Rather, Sawada
was charged with causing “Prisoners of War to be denied the status
of Prisoners of War and to be tried and sentenced by a Japanese Mili-
51. See, e.g., Trial of Yamamoto Chusaburo, British Military Court, Kuala Lumpur,
Jan. 30–Feb. 1, 1946, 3 L. REP. TRIALS OF WAR CRIMINALS 76 (1947).
52. See, e.g., Trial of Sergeant-Major Shiger Ohashi and Six Others, Australian
Military Court, Rabaul, Mar. 20–23, 1946, 5 L. REP. TRIALS OF WAR CRIMINALS 25 (1948).
53. The Nationalist Chinese prosecuted Japanese Class B and C war criminals in
Nanking between 1946 and 1947. Xiaoyu Pu, The Nanking Massacre, Justice and
Reconcilliation: A Chinese Perspective, 6 PERSPECTIVES 26 (2005), available at
http://www.oycf.org/Perspectives/30_09302005/2c_Pu_NankingMassacre.pdf.
54. The U.S.S.R. conducted a series of trials at Khabarovsk from December 25, 1949,
through the 30th, the subject of which was principally allegations of biological and chemical
warfare. Jing-Bao Nie, The United States Cover-Up of Japanese Wartime Medical
Atrocities: Complicity Committed in the National Interest and Two Proposals for
Contemporary Action, 6 AM. J. BIOETHICS 3, 3 (2006).
55. Two hundred and fifteen Japanese defendants faced military commissions in the
Philippines. See Robert Barr Smith, Japanese War Crimes Trials, available at
http://www.historynet.com/wars_conflicts/world_war_2/3035796.html (last visited Jan. 18,
2007).
56. See, e.g., Trial of Washio Awochi, Netherlands Temporary Court Martial at
Batavia, Oct. 25 1946, 13 L. REP. TRIALS OF WAR CRIMINALS 122 (1949).
57. The term refers not to the gravity of crimes committed but to their type, and the
decision not to include that individual as a representative “Class A” defendant before the
IMTFE. In August 1945, the Coordinating Committee of the U.S. Departments of State,
War, and Navy [hereinafter SWNCC] published its classification of war criminals: A, B,
and C. In brief, Class A consisted of those accused of “crimes against peace”—first of all,
planning, preparing, initiating, or waging a declared or undeclared war of aggression, or a
war in violation of international law and treaties; or, participating in a conspiracy for the
accomplishment for any of the foregoing. Class B consisted of those people charged with
conventional war crimes—namely violations of the laws and customs of war, including the
maltreatment of civilians and prisoners of war. Finally, Class C comprised all those accused
of crimes against humanity—those who had carried out torture, murder, extermination,
enslavement, deportation, and other inhumane acts before or during the war, or persecution
on political, religious, or racial grounds ordered by superiors. As Takemae Eiji notes, “In
Germany, four Allied powers had tried Nazi leaders for the Holocaust and related horrors
under Class-C crimes against humanity, but in Japan this category became blurred with
Class B offenses, and most of the so-called B/C war crimes covering conventional brutalities
and murder were tried in local military tribunals throughout Asia.” Bill Barette, Art and
Exchange at Sugumo Prison, 1945–52: Visual Communication in American-Occupied
Japan (Japan Policy Research Institute, JPRI Occasional Paper No. 33, 2004).
58. See infra notes 59 and 60.
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480 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
tary Tribunal in violation of the Laws and Customs of War.”59 The
specifications alleged that he had directed the prisoners’ trial “on
false and fraudulent charges,” that he failed to commute or remit the
sentences causing unlawful deaths and other criminal sentences, and
that he unlawfully caused the prisoners to be treated as war criminals.
60
Captain Nielsen’s testimony was part of the prosecution’s
proof that the Doolittle raiders were not guilty of war crimes, and
that, in fact, their confessions were obtained by torture.61 Sawada
was present during that testimony and was asked about it on crossexamination:
Q: Did you listen to Captain Nielsen testify on the
witness stand in this case?
A: I heard it.
Q: Did you hear him tell how he was treated . . . ?
A: I heard.
Q: Well who was responsible for his treatment at the
Airfield that night?
A: The Gendarmerie took them over already . . . .
Q: The fact of the matter is, General, you didn’t care
how they were treated did you?
A: I thought they were treated fairly.
Q: You heard Captain Nielsen testify about being
given the water treatment out there, didn’t you?
59. Charge, Record of Trial, United States v. Sawada, 5 L. REP. TRIALS OF WAR
CRIMINALS 1 (1948), Judge Advocate General’s Office File No. 119-19-5 (1946), at 1,
available at National Archives.
60. Specifications, Record of Trial, supra note 59, at 2–3.
61. The U.S. Government’s official position about Japanese interrogation techniques
applied to the Doolittle raiders was clearly stated in a diplomatic note delivered to the
Japanese government through Switzerland in 1943:
With regard to the allegation of the Japanese Government that the American
aviators admitted [intentionally bombing and strafing non-military targets]
there are numerous known instances in which Japanese agencies have
employed brutal and bestial methods in extorting alleged confessions from
persons in their power. It is customary for those agencies to use statements
obtained under torture, or alleged statements, in proceedings against the
victims.
Telegram from Sec. of State Cordell Hull to Japanese Government via Bern Legation, Apr.
5, 1943, Investigative File, United States v. Sawada, 5 L. REP. TRIALS OF WAR CRIMINALS 1
(1948), Judge Advocate General’s Office File No. 35-6, at 53 (1945), available at National
Archives.
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A: I heard him say he received it from the Gendarmes.
62
In his closing argument the Prosecutor explained the government’s
position on the application of the facts about prisoner mistreatment to
General Sawada:
[O]ur contention is that we cannot see how Sawada
can escape responsibility when these men were his
prisoners and he turned them over and allowed these
Gendarmerie members to treat them as they did, when
he should have seen to it that they had proper treatment.
63
He continued his argument against Sawada discussing the General’s
claim that he was not familiarized by the Japanese government with
the specifics of the 1929 Geneva Convention:
They cannot say that something their government
failed to do authorized them to fail to treat these men
as human beings. When their government agreed to
[abide by the 1929 Convention] they should have
taken these men and treated them as prisoners of war
and not as war criminals.64
The Commission rejected the Prosecutor’s argument about
the General’s criminal liability for the water torture (and other mistreatment)
inflicted by the Japanese military police. Although it
found that Sawada “was negligent in not personally investigating the
treatment being given the American prisoners, he was informed by
his responsible staff that they were being given the treatment accorded
Japanese officer prisoners.”65
What the Commission did not question, however, was the
Prosecution’s contention that Captain Nielsen was tortured with the
water cure, and that the torture resulted in a wrongful conviction. It
rejected the portion of the First Specification alleging Sawada
“knowingly and willfully” constituted a military tribunal to try
Americans who were entitled to POW status, although it found the
62. Record of Trial, United States v. Sawada, 5 L. REP. TRIALS OF WAR CRIMINALS 1
(1948), Judge Advocate General’s Office File No. 119-19-5 (1946), at 439–40, available at
National Archives.
63. Id. at 490.
64. Id. at 491.
65. Commission’s Conclusions, Record of Trial, United States v. Sawada, 5 L. REP.
TRIALS OF WAR CRIMINALS 1 (1948), Judge Advocate General’s Office File No. 119-19-5
(1946), at 549, available at National Archives.
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482 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
General guilty on the remainder of that Specification. On the Second
Specification, however, that Sawada had the American prisoners tried
“on false and fraudulent charges,” the Commission found him guilty
with no exception. It accepted that they were false and fraudulent,
based on evidence which in very large part showed the prisoners’
confession had been obtained through torture. A key aspect was the
water torture applied to Captain Nielsen.
That the water cure was torture was also a legal conclusion
accepted in other U.S. military commissions in the Pacific Theater.
B. Water Torture Prosecutions Before Other U.S. Tribunals
The United States tried a significant number of Class B and C
war criminals before national tribunals. Among them were several
conducted at Yokohama, Japan and one in the Philippines. All of
these trials elicited compelling descriptions of water torture from its
victims, and resulted in severe punishment for its perpetrators.
One compelling example is found in the Manila trial of Sergeant-
Major Chinsaku Yuki of the Kempentai66 for torture and murder67
of Philippine civilians. There, the Commission heard testimony
from Ramon Navarro, a Filipino lawyer who had been arrested by the
Kempentai and questioned by the Defendant on suspicion that he
knew of and supported guerilla activities. His testimony was the only
direct evidence received by the tribunal about Sgt. Maj. Yuki’s interrogation
techniques:
Q: And then did he take you back to your room?
A: When Yuki could not get anything out of me he
wanted the interpreter to place me down below
66. Yuki was tried before a military commission convened by the Commanding
General Philippines-Ryukyus Command. Record of Trial, United States v. Yuki, Philippines
Trials, March 21, 1947, SCAP Prosecution Section File 142, available at National Archives,
NND 775011, Record Group 331: Allied Operational and Occupation Headquarters, World
War II, Entry 1321: SCAP; Legal Section; Prosecution Division, United States v. Japanese
War Criminals Case File, 1945-49, Box 1586, File Chinsaku Yuki-Vol. I.
67. The Charge was a standard one:
That Chinsaku YUKI, ISN 51J-119862, a Sergeant-Major in the Imperial
Japanese Army, on the dates and at the places hereinafter specified, and while a
state of war existed between the United States of America, its allies and
dependencies, and Japan, did violate the laws and customs of war.
Record of Trial, United States v. Yuki, supra note 66, Vol. I (Charge and Specifications
Against Chinsaku Yuki), at 7. The specifications included torture and murder of unarmed
non-combatants. Id. Interestingly, the Commission declined to convict Yuki regarding his
treatment of guerillas, apparently taking the position that the charge and specifications were
limited to noncombatants. Id., Vol. VI (Judgment), at 249–50.
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and I was told by Yuki to take off all my clothes
so what I did was to take off my clothes as ordered.
I was ordered to lay on a bench and Yuki
tied my feet, hands and neck to that bench lying
with my face upward. After I was tied to the bench
Yuki placed some cloth on my face and then with
water from the faucet they poured on me until I
became unconscious. He repeated that four or five
times.
Col. Keeley: You mean he brought water and poured
water down your throat?
A: No sir, on my face, until I became unconscious.
We were lying that way with some cloth on my
face and then Yuki poured water on my face continuously.
Col. Keeley: And you couldn’t breathe?
A: No, I could not and so I for a time lost consciousness.
I found my consciousness came back again
and found Yuki was sitting on my stomach and
then I vomited the water from my stomach and the
consciousness came back again for me.
Q: Where did the water come out when he sat on your
stomach?
A: From my mouth and all openings of my face . . .
and then Yuki would repeat the same treatment
and the same procedure to me until I became unconscious
again.
Q: How many times did that happen?
A: Around four or five times from two o’clock up to
four o’clock in the afternoon. When I was not
able to endure his punishment which I received I
told a lie to Yuki . . . . I could not really show
anything to Yuki because I was really lying just to
stop the torture.68
When Yuki learned that Navarro was lying, he was brought back to
the Kempentai facility and again subjected to the water cure:
68. Id., Vol. III (Public Trial), at 85–86.
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484 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
Col. Keeley: Was it painful?
A: Not so painful, but one becomes unconscious.
Like drowning in the water.
Q: Like you were drowning?
A: Drowning: you could hardly breathe.
Q: How many times did he do that?
A: Two or three times.69
In his summation, the Prosecutor discussed Navarro’s testimony noting
that “it’s on his testimony that we have to determine whether
there was any torture or not.” Apparently, that testimony was sufficient
for the Commissioners. They convicted Yuki of the charges
that he tortured and murdered a civilian non-combatant, and sentenced
him to life imprisonment.70
Another compelling description of water torture is found in a
case heard before a U.S. Military Commission at Yokohama, Japan.
There, four Japanese defendants were tried for torture and mistreatment
of American and Allied prisoners at Fukoka Prisoner of War
Branch Camp Number 3 in Kyushu.71 Water torture was among the
acts alleged in the specifications against the various defendants, and
it loomed large in the evidence presented against them.72
The four defendants, Hata,73 Asano,74 Kita75, and Naka-
69. Id., at 87–88.
70. Id. at 241.
71. United States v. Hideji Nakamura, U.S. Military Commission, Yokohama, 1947,
available at National Archives, NND 735027, Record Group 153: Office of the Judge
Advocate General (Army), Entry 143: War Crimes Branch; Case Files, 1944-49, Box 1025,
File No. 36-219-Vol. I.
72. Id.
73. The charge and specifications against Hata were:
Charge: That the following member of the Imperial Japanese Army with his
then known title: Seitaro Hata, Surgeon First Lieutenant, at the times and
places set forth in the specifications hereto attached, and during a time of war
between the United States of America and its Allies and Dependencies, and
Japan, did violate the Laws and Customs of War.
Specification 3. That in or about July or August, 1943, at Fukoka Prisoner of
War Branch Camp Number Three, Fukuoka ken, Kyushu, Japan, the accused
Seitaro Hata, did willfully and unlawfully, brutally mistreat and torture Morris
O. Killough, an American Prisoner of War, by beating and kicking him, by
fastening him on a stretcher and pouring water up his nostrils.
Specification 5. That on or about 15 May, 1944, at Fukoka Prisoner of War
Branch Camp Number Three, Fukuoka ken, Kyushu, Japan, the accused Seitaro
Hata, did, willfully and unlawfully, brutally mistreat and torture Thomas B.
Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of
War, by beating and kicking them, by forcing water into their mouths and
noses, and by pressing lighted cigarettes against their bodies.
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mura76 were respectively the camp doctor, interpreter, senior noncommissioned
officer, and mess sergeant. The charges against them
arose from two separate water torture incidents in which they partici-
Charge and Specifications Against Seitara Hata, United States v. Hideji Nakamura,
U.S. Military Commission, Yokohama, 1947 (emphasis added).
74. The charge and specifications against Asano were:
Charge: That between 1 April, 1943 and 31 August, 1944, at Fukoka Prisoner
of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asana,
then a civilian serving as an interpreter with the Armed Forces of Japan, a
nation then at war with the United States of America and its Allies, did violate
the Laws and Customs of War.
Specification 1: That in or about July or August, 1943, the accused Yukio
Asano, did willfully and unlawfully, brutally mistreat and torture Morris O.
Killough, an American Prisoner of War, by beating and kicking him, by
fastening him on a stretcher and pouring water up his nostrils.
Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War
Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did,
willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage,
William O Cash and Munroe Dave Woodall, American Prisoners of War, by
beating and kicking them, by forcing water into their mouths and noses, and by
pressing lighted cigarettes against their bodies.
Specification 5. That between 1 April, 1943 and 31 December, 1943, the
accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and
torture John Henry Burton, an American Prisoner of War, by beating him, and
by fastening him head downward on a stretcher and forcing water into his nose.
Charge and Specifications Against Yukio Asano, United States v. Hideji Nakamura,
U.S. Military Commission, Yokohama, 1947 (emphasis added).
75. The charge and specifications against Kita were:
Charge: That the following member of the Imperial Japanese Army with his
the known title: Takeo Kita, Sergeant Major, at the times and places set forth
in the specifications hereto attached, and during a time of war between the
United States . . . and Japan, did violate the Laws and Customs of War.
Specification 2: That between 1 April, 1943 and 31 August, 1944, at Fukoka
Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Takeo
Kita, did, willfully and unlawfully, brutally mistreat and torture John Henry
Burton, an American Prisoner of War, by beating him and by forcing water into
his nose.
Specification 4: That on or about 15 May, 1944, at Fukoka Prisoner of War
Branch Camp Number 3, Kyushu, Japan, the accused Takeo Kita, did, willfully
and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O
Cash and Munroe Dave Woodall, American Prisoners of War by beating them,
forcing water into their mouths and noses, and by pressing lighted cigarettes
against their bodies.
Charge and Specifications Against Takeo Kita, United States v. Hideji Nakamura,
Yukio Asano, Seitara Hata, and Takeo Kita, U.S. Military Commission, Yokohama,
May 1–28, 1947 (emphasis added).
76. The charge and specifications against Nakamura were less specifically related to
water torture per se, but still dealt with forced dunking:
Charge: That the following member of the Imperial Japanese Army, with his then
known title, Hideji Nakamura, at the times and places set forth in the specifications
hereto attached, and during a time of war between the United States of America, its
Allies and Dependencies, and Japan, did violate the Laws and Customs of War.
Charge and Specifications Against Hideji Nakamura, United States v. Hideji Nakamura,
U.S. Military Commission, Yokohama, 1947. None of the specifications were on water
torture per se, but specifications two and nine refer to forcing prisoners into a tank of water.
Id. The testimony discussed infra links those specifications to water torture (emphasis
added).
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486 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
pated: one involved a single victim, John Burton, and the other involved
several prisoners and arose from the jailers’ belief that prisoners
Armitage, Cash and Woodall had stolen food.77
The witness’s descriptions painted a grim portrait of the
treatment meted out to POWs, and of the use of water torture as a
primary means of interrogation. He was turned upside down, water
poured up his nose, and he was beaten into unconsciousness.78
[T]hey would lash me to a stretcher then prop me up
against a table with my head down. They would then
pour about two gallons of water from a pitcher into
my nose and mouth until I lost consciousness.79
[T]hey laid me out on a stretcher and strapped me on.
The stretcher was then stood on end with my head almost
touching the floor and my feet in the air. . . .
They then began pouring water over my face and at
times it was almost impossible for me to breath [sic]
without sucking in water.80
77. A separate trial arising out of the same incidents of torture was instituted against
Genji Mineno. See infra text accompanying note 85.
78. The full testimony reads:
American prisoner Woodall . . . had stolen a shirt from the Japanese . . . was
stretched and tied on a hospital stretcher and severely beaten. He was turned
upside down and water poured up his nose and beaten into unconsciousness.
The treatment lasted for about four hours. . . . . William Cash . . . WAS given
the identical treatment for the same offense. The Japanese immediately
involved in this punishment were FIRST LIEUTENANT HATA, medical
officer at the camp, MR ASANO, civilian interpreter, MASTER SERGEANT
KITA, and the unidentified Japanese Warant [sic] Officer.
Affidavit of Cpt. Vetalis Vernon Anderson, Oct. 20, 1945, San Francisco, CA, Record of
Trial, United States v. Hideji Nakamura, U.S. Military Commission, Yokohama, 1947, at
Exhibit 6. See also Affidavit of Cpt. William Arno Blueher, Record of Trial, United States
v. Nakamura, at Exhibit 6.
79. The full testimony reads:
In addition to the two [Japanese] who brought us over there, the following
[Japanese] were also present and participated in the beatings and tortures;
Doctor Lieutenant HATA, Sergeant KALISAKI, a discharged ex-soldier
named MANEO, a civilian interpreter named OSANA. After beating me for a
while they would lash me to a stretcher then prop me up against a table with
my head down. They would then pour about two gallons of water from a
pitcher into my nose and mouth until I lost consciousness. When I revived they
would repeat the beatings and ‘water cure’ . . . . The tortures and beatings
continued for about six hours.
Statement of Thomas B Armitage (one of the victims), Oct. 1, 1945, 29th Replacement
Depot, United States v. Hideji Nakamura, U.S. Military Commission, Yokohama, 1947.
80. The full testimony reads:
Two of the Japanese guards, Kita and Osano (Kita was the Sergeant Major and
Osano was the interpreter) . . . . These two Japanese then started beating me
with a club, using a bamboo stick about two feet long and two inches thick. . . .
the beating . . . continued from 9:00 that morning until 1:00 o’clock in the
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[We] were strapped to stretchers and warm water
poured down our nostrils until we were about ready to
pass out.81
[They] strapped him to a stretcher and elevated his
feet and then poured on his face so that it was almost
impossible for him to get his breath.82
[The victim] was then taken into the corridor, strapped
to a stretcher, which was tilted so that his head was
toward the floor and feet resting on a nearby sink.
Water was then poured down his nose and mouth for
about twenty minutes. . . .83
afternoon. Then I was taken into the hallway of the barracks. Both of the
Japanese still insisting I was guilty and urging me to confess . . . . After taking
me down into the hallway, they laid me out on a stretcher and strapped me on.
The stretcher was then stood on end with my head almost touching the floor
and my feet in the air. By this time, practically the entire Japanese personnel of
the camp were present. I saw the Japanese Major who was the Commanding
Officer and also the 1st Lt. who was his assistant. This 1st Lt. told me while I
was strapped to the stretcher that he didn’t think I did it, but it was his duty to
punish me anyway. They then began pouring water over my face and at times
it was almost impossible for me to breathe without sucking in water. This
torture continued for what must have been a half hour or an hour. Finally I was
placed in a horizontal position and unstrapped. It was impossible for me to
arise so one of the prisoners . . . helped me.
Affidavit of John Henry Burton, Apr. 26, 1946, Los Angeles, CA, United States v. Hideji
Nakamura, U.S. Military Commission, Yokohama, 1947.
81. The full testimony reads:
One of the Japanese Guards who was particularly bad was a two star sergeant
named MENINO (phonetic) . . . . In August, 1943, I and a civilian from Wake
Island named BILL CASH, were strapped to stretchers and warm water poured
down our nostrils until we were about ready to pass out. MENINO did this with
the help of two other Japanese guards.
Affidavit of George Dee Stoddard, Oct. 22, 1945, Alameda, CA, United States v. Hideji
Nakamura, U.S. Military Commission, Yokohama, 1947.
82. The full testimony reads:
At about 12:00 noon Kita and Osano took Burton and strapped him to a
stretcher and elevated his feet and then poured on his face so that it was almost
impossible for him to get his breath. I was standing within three feet of Burton
when this happened. While the Japs were giving Burton the ‘Water Cure’ I
was forced to hold my right arm which was infected out at right angles to my
body and the Japs were hitting it with clubs. Gibson also identified Mineno as
having commonly been nicknamed by the POWs as ‘the water snake.’
Sworn Statement of George E. Gibson (civilian contractor captured at Wake Island), Sept.
28, 1945, 29th Replacement Depot, United States v. Hideji Nakamura, U.S. Military
Commission, Yokohama, 1947.
83. The full testimony reads:
BURTON . . . was then taken into the corridor, strapped to a stretcher, which
was tilted so that his head was toward the floor and feet resting on a nearby
sink. Water was then poured down his nose and mouth for about twenty
minutes . . . . ASANO (5 star), the civilian interpreter of the camp . . . was
responsible for this water treatment, and had done the beating and poured the
water down BURTON’s nose and mouth.
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[T]hey stood them on their heads and poured water
down their noses and into their mouths until they almost
choked.84
Genji Mineno was tried separately at Yokohama85 for participating
in the same series of events.86 The evidence introduced
against him included the same affidavits and witness statements introduced
against the other four defendants. On the basis of that evidence,
87 all five were convicted of all torture specifications.88 It is
worth noting that, in Minano’s case, the reviewing officer “in view of
the proof of the guilt of the accused of the many beatings and other
vicious tortures” thought his sentence of twenty years confinement at
hard labor was “inadequate.”89
Affidavit of James William Pettit, Oct. 12, 1945, Alameda, CA, United States v. Hideji
Nakamura, U.S. Military Commission, Yokohama, 1947.
84. The full testimony reads:
In about May of 1944, 3 Americans, one whose name was William Cash took
some clothing from the store house . . . . [Among other tortures] they stood
them on their heads and poured water down their noses and into their mouths
until they almost choked.
Claude A Thomas Dep., Sept. 18, 1945, 29th Replacement Depot, Luzon. P.I., United States
v. Hideji Nakamura, U.S. Military Commission, Yokohama, 1947.
85. Military Commission Case Docket No 47 Tried at Yokohama June 25–28, 1946.
NARA NND 735027 Record Group 153, Office of the Judge Advocate General (Army),
Entry 143: War Crimes Branch; Case Files, 1944-49, Box 1025, File No. 36-449-Vol. I.
Mineno was a civilian employee of the Imperial Japanese Army.
86. The charges and specifications were:
Charge: That between 1 Feb 1943 and 1 Sept 1945 at POW Camp No. 3,
Kokura, Fukuoka, Japan, Genji Mineno . . . did willfully and unlawfully
commit cruel, inhuman and brutal acts, atrocities and other offenses against
certain American and Allied Prisoners of War, in violation of the Laws and
Customs of War.
Specification 5. That in or about August, 1943, the accused, Genji Mineno,
together with other persons did, willfully and unlawfully, brutally mistreat and
torture George De Witt Stoddard and William O. Cash, American Prisoners of
War, by strapping them to a stretcher and pouring water down their nostrils.
Specification 9. That in or about 15 May, 1944, the accused, Genji Mineno,
did, willfully and unlawfully, brutally mistreat and torture Thomas B.
Armitage, William O. Cash, and Munroe Dave Woodall, American Prisoners of
War, by beating and kicking them, by forcing water into their mouths and
noses, and by pressing lighted cigarettes against their bodies.
Reproduced in Synopsis of Charges, Pleas, Findings, Legal Sufficiency, and
Sentence, Review of Staff Judge Advocate, Headquarters Eighth Army, United States
Army, Yokohama, Japan, Document No. 46, Aug. 17, 1946, at 1–2.
87. See supra notes 69–81.
88. Surgeon First Lieutenant Hata was sentenced to twenty-five year confinement at
hard labor. Mr. Mineno, the civilian guard, and Mess Sergeant Nakamura both received
twenty years confinement at hard labor. Sergeant Major Kita and Mr. Asano, the interpreter,
were given confinement for fifteen years at hard labor. Review of Staff Judge Advocate,
Headquarters Eighth Army, United States Army, Yokohama, Japan, Case No. 53, Oct. 15,
1948, at 1.
89. See Reviews of the Yokohama Class B and Class C War Crimes Trials by the 8th
Army Judge Advocate, 1946–1949. National Archives Publication M1112.
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In an entirely separate water torture case, the United States
tried Yagoheiji Iwata.90 The torture charges against Iwata involved
his mistreatment of a Dutch Prisoner of War, A. A. Peters.91 One of
Peters’ superior officers was a witness to the torture:
After [beating Peters] they let him down again . . . and
Iwata told a few soldiers to hold Peters head backwards.
Then he told another soldier to put a piece of
cloth over his mouth and ordered another soldier
again, to fetch a bucket of sea water. There were five
buckets which were standing on a special tank in case
of fire. At that point the Japanese sick bay attendant,
who was present at the moment, and who expected
what was going on, intervened. He told him, to Sergeant
Iwata, that it is dangerous because it is sea water
and the man will get sick. At that moment Sergeant
Iwata said ‘Let him die.’ Further, the soldiers lifted
the buckets and Iwata assisted in pouring the sea water
over Peters face. On account of the piece of cloth
over his mouth, his nose was closed so he was forced
to swallow the sea water causing a swollen belly.92
Upon that evidence, Iwata was convicted of the torture charge.93
In addition to those single-nation military commissions con-
90. United States v. Iwata, Case Docket No 135, Mar. 31, 1947 to Apr. 3, 1947,
Yokohama. NND735027, Record Group 153: Office of the Judge Advocate General
(Army), Entry 143: War Crimes Branch; Case Files, 1944-49, Box 1036, File No. 36-449-
Vol. I.
91. The charges and specifications against Iwata included:
Charge: That the following member of the Imperial Japanese Army, with his
then known title: Yagoheiji IWATA, Sergeant, at the time and place set forth
in the specifications hereto attached, and during a time of war between the
United States of America, its Allies and Dependencies, did violate the Laws
and Customs of War.
Specification 1. That on or about 24, September, 1943, at Fukuoka Prisoner of
War Camp Number Two, Koyagimura, Nagasaki, Kyushu, Japan, the accused,
Yagoheiji Iwata, singly and with others, did willfully and unlawfully mistreat
and torture Marine Third Class A. A. Peters, a Dutch Prisoner of War, by
beating him, by throwing him on the ground, by hanging him by his hands from
a post, by holding his head back and forcing him to swallow a bucketful of sea
water, by placing him in solitary confinement and by otherwise abusing him.
Record of Trial, United States v. Iwata, supra note 90, Vol. 1 (Charges and
Specifications Against Yagoheiji Iwata), at 1–2.
92. Testimony of Johannas J. Budding, Captain, Royal Netherlands Indies Army,
Special Troops. Reproduced in Synopsis of Charges, Pleas, Findings, Legal Sufficiency,
and Sentence, Review of Staff Judge Advocate, Headquarters Eighth Army, United States
Army, Yokohama, Japan, Sept. 17, 1948, at 1.
93. Iwata was found guilty (but the words “a bucketful of” and “by placing him in
solitary confinement” were struck from the charge). Iwata was sentenced to twelve years of
hard labor.
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490 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
ducted by the United States, water torture was a major issue in proceedings
before the IMTFE. That tribunal was created by General
MacArthur in his position as Supreme Commander of Allied Powers,
(SCAP).94 An American Judge95 sat on the tribunal and voted for
convictions96, and the chief prosecutor was an American.97 Accordingly,
its record should have some precedential weight, in history if
not in law.
C. The International Tribunal
The IMTFE was principally concerned with Japanese crimes
against states, including acts of aggression and crimes against
peace,98 but it also considered charges of misconduct against military
personnel and civilians, including murder, rape, and torture.99
The Judgment of the International Military Tribunal for the
94. IMTFE Charter, supra note 47.
95. Justice John P. Higgins of the Massachusetts Supreme Court, and, as a replacement
in July, 1946, M.G. Myron Cramer, former Judge Advocate of the Army. RICHARD MINEAR,
VICTOR’S JUSTICE: THE TOKYO WAR CRIMES TRIAL (1971). Interestingly, Cramer, a former
Judge Advocate General of the United States Army, had participated extensively in the
drafting and application of the procedural and evidentiary rules which governed both the
Nuremburg Tribunal and the IMTFE. Wallach, supra note 19, at 858.
96. See IMTFE Judgment, Record, supra note 25, at 48,413.
97. See Joseph Keenan, Observations and Lessons from International Criminal Trials,
17 U. KAN. CITY L. REV. 117, 123 (1949).
98. See IMTFE Indictment, 1 THE TOKYO WAR CRIMES TRIAL, supra note 25, at ¶¶ 1–
53.
99. The IMTFE Indictment charged the defendants, inter alia, with torture under
conventional war crimes and crimes against humanity. Specifically, the defendants
allegedly had ordered, authorized, and permitted:
the Commanders-in-Chief of the several Japanese naval and military forces in
each of the several theatres of war in which Japan was then engaged, and the
officials of the Japanese War Ministry, and the persons in charge of each of the
camps and labor units for prisoners of war and civilian internees in territories
of or occupied by Japan and the military and civil police of Japan, and their
respective subordinates frequently and habitually to commit . . . breaches of the
Laws and Customs of War. . . .
IMTFE Judgment, supra note 96, at Appendix D, Section One. Allegedly “prisoners of war
and civilian internees were murdered, beaten, tortured and otherwise ill-treated, and female
prisoners were raped by members of the Japanese forces.” Id. Defendants allegedly
inflicted
[e]xcessive and illegal punishment of prisoners of war, contrary to Article 8 of
the said Annex to the said Hague Convention and to Part III, Section V,
Chapter 3 of the said Geneva Convention, and to the said assurances: 1.
Prisoners of war were killed, beaten and tortured without trial or investigation
of any kind, for alleged offences.
Id. at Section Four. Finally, allegedly “[l]arge numbers of the inhabitants of [occupied]
territories were murdered, tortured, raped and otherwise ill-treated, arrested and interned
without justification, sent to forced labor, and their property destroyed or confiscated.” Id. at
Section Twelve. IMTFE Indictment, supra note 98.
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Far East held that:
The practice of torturing prisoners of war and civilian
internees prevailed at practically all places occupied
by Japanese troops, both in the occupied territories
and in Japan. The Japanese indulged in this practice
during the entire period of the Pacific War. Methods
of torture were employed in all areas so uniformly as
to indicate policy both in training and execution.
Among these tortures were the water treatment . . . .100
As noted above, the Judgment described the water treatment as
“commonly applied.” It was called by a number of names (water
treatment, the water test,101 water torture,102 suffocation by immersions103),
but the descriptions in the IMTFE trial record are generally
of two types:
There were two forms of water torture. In the first,
the victim was tied or held down on his back and cloth
placed over his nose and mouth. Water was then
poured on the cloth. Interrogation proceeded and the
victim was beaten if he did not reply. As he opened
his mouth to breathe or answer questions, water went
down his throat until he could hold no more. Sometimes,
he was then beaten over his distended stomach,
sometimes a Japanese jumped on his stomach, or
sometimes pressed on it with his foot.
In the second, the victim was tied lengthways on a
ladder, face upwards, with a rung of the ladder across
his throat and head below the latter. In this position
he was slid first into a tub of water and kept there until
almost drowned. After being revived, interrogation
proceeded and he would be reimmersed.104
Another detailed description before the IMTFE was provided by a
Swiss engineer held by the Japanese in the Dutch East Indies:
The third degree of punishment was suffocation by
100. IMTFE Judgment, supra note 96, at 49,663.
101. IMTFE Record, supra note 25, at 13,811, 13,812.
102. Id. at 12,940.
103. Id. at 13,691.
104. Affidavit of J.L. Wilson, The Right Reverend Lord Bishop of Singapore, admitted
as Prosecution Exhibit 1519A, Dec. 16, 1946, IMTFE Record, supra note 25, at 12,935.
This testimony refers to the same events discussed in the U.K. “Double Tenth Trial,” supra
note 21.
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492 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
immersions. A towel was fixed under the chin and
drawn over the face. Then many buckets of water
were poured into the towel so that the water gradually
reached the mouth and rising further eventually also
the nostrils . . . which resulted in his becoming unconscious
and collapsing like a person drowned. This
procedure was sometimes repeated 5–6 times in succession.
Did the prisoner not confess, he was mostly
led back to the cell to pass the night in his wet
clothes.105
The technique was similar in Shanghai:
Various tortures were administered during interrogation,
the main ones being “Water Torture,” which is
done by laying a person flat on a bench with his head
overhanging one end. A funnel is then placed in the
mouth and water forced into the abdomen and lungs.
The torturer then jumps on the stomach of his victim
producing a drowning sensation.106
A French prisoner of the Japanese at Cao-Bang in Vietnam described
“water punishment” applied to him:
I was submitted to another group of torturers: a soldier
held my head with one hand and with the other
stopped my mouth during this time a second soldier
poured cold water from a teapot into my nostrils, my
head thrown backwards to a position lower than the
bench on which I was lying. This operation was repeated
about fifteen times and the teapot was filled as
many times. This produced in me the early stages of
asphyxia and I estimate that I must have had 3 or 4 liters
of water forced down me.107
There was a significant reason the IMTFE’s Judgment listed
water torture first in its determination that the Japanese uniformly
engaged in torture throughout occupied areas.108 The practice, in its
105. Report of Dr. R. Flachs on treatment by Japanese Kenpeitai [military police] at
Bandung, Dutch East Indies, admitted as Prosecution Exhibit 1752A, Dec. 27, 1946, IMTFE
Record, supra note 25, at 13,691.
106. Affidavit of Cpt. Edward E. Williamson, sworn to on June 6, 1946, admitted as
Prosecution Exhibit 1892-A, Jan. 3, 1947, IMTFE Record, supra note 25, at 14,168.
107. Affidavit of Marcel Robert, admitted as Prosecution Exhibit 2134-A, Jan. 16, 1947,
IMTFE Record, supra note 25, at 15,339.
108. IMTFE Judgment, supra note 96, at 49,664.
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various iterations, was widespread and uniform.109 Its condemnation,
and the ensuing severe sentences of those who ordered and permitted
it,110 was approved in its entirety by Myron Cramer,111 the
U.S. Judge on the Tribunal.112
109. The trial record of the IMTFE contains numerous references to forms of water
torture inflicted by Japanese troops. These include, inter alia: Affidavit of James Strawhorn
regarding torture at a POW camp at Nichols Field in the Philippines (tying victim to a board
with head lower than feet and pouring salt water into his mouth), admitted as Prosecution
Exhibit 1453, Dec. 12, 1946, IMTFE Record, supra note 25, at 12,605–07; Affidavit of
Amhad Bin Cheteh regarding death of prisoners following water torture at Penang
[Malaysia], admitted as Prosecution Exhibit 1531A, Dec. 16, 1946, id. at 12,958–59; Solemn
Declaration of Harry Joseph regarding tortures by Kempeitai at Kyaikto [Myanmar],
admitted as Prosecution Exhibit 1552A, Dec. 16, 1946, id. at 12,981–82 (“a large quantity of
water slowly poured into [prisoner’s] mouth and nostrils, so that the prisoner suffocated”);
Affirmation of Pyaray Mohan, admitted as Prosecution Exhibit 1611A, Dec. 18, 1946, id. at
13,186 (victim of water torture in Andaman Islands); Affirmation of Murad Ali, admitted as
Prosecution Exhibit 1616A, Dec. 18, 1946, id. at 13,192–93 (Indians tried as spies in
Adaman Islands, water torture carried, including by one of the judges); Affidavit of Maj. A.
Zimmerman, admitted as Prosecution Exhibit 1750, Dec. 26, 1946, id. at 13,682–84 (“water
test” at Buitenzorg [now Bodor], Indonesia); Affidavit of Prof. E. DeVries, admitted as
Prosecution Exhibit 1751, Dec. 26, 1946, id. at 13,685–86 (underwent “water test” twentytwo
times during a period of two months at Buitenzorg [now Bodor], Indonesia); Affidavit
of Cdr. C.D. Smith regarding water torture at Shanghai, admitted as Prosecution Exhibit
1901A, Jan. 3, 1947, id. at 14,179, 14,181–82:
The water treatment consists of lashing a man face up across the desk top. A
bath towel is then so rolled as to form a circle around his nose and mouth, and a
five-gallon can of water, which was generally mixed with the vilest of human
refuse and other filth, such as kerosene, was then put handy . . . if he did not
respond, the water was poured into the space made by the bath towel, forcing
the prisoner to either swallow and inhale the vile concoction or strangle
himself. This is kept up, questioning between doses, until the man is at the
point of unconsciousness . . . the water is allowed to drain out of him. When he
has sufficiently recuperated the treatment is resumed.
Affidavit of Dominique Poli, admitted as Prosecution Exhibit 2135, Jan. 16, 1947, id. at
15,340–41 (given “water punishment” several times at Hanoi, Vietnam by Japanese police);
and Declaration of Leon Artouard, interrogated by Kempetai at Saigon, Vietnam, admitted
as Prosecution Exhibit 2143A, Jan. 16, 1947, id. 15364, 15,366:
I was placed on my back on a bench and firmly tied down so as to undergo
‘torture by water’ which consisted in causing the first stages of asphyxiation by
the absorption of water into the respiratory tract. Water was poured at the same
time into the nose and mouth, which is kept open with a whip or a staff slipped
between the teeth, or on a rag held firmly over these two orifices.
Id.
110. Kenji Dohihara, Seishiro Itagaki, Heitaro Kimura, Akira Muto, and Hideki Tojo,
the IMTFE defendants who were convicted on Count 54 (ordering, authorizing, and
permitting commission of war crimes including, inter alia, torture), were all sentenced to
death by hanging. IMTFE Judgment, supra note 96. Shunroko Hata, Kuniaki Koiso, Koki
Hirota, who were convicted on Count 55 (failure to take adequate steps to prevent war
crimes), were sentenced to life imprisonment, but defendant Iwane Matsui was sentenced to
death after he was convicted of failing to prevent the Nanjing massacre, and Mamoru
Shigemitsu was sentenced to seven years imprisonment based on mitigating circumstances.
Id. Many of the defendants were, of course, convicted of other crimes of conspiracy, of
aggression and against the peace. Id.
111. Signature page, IMTFE Record, supra note 25, at 49,858.
112. A number of the Members separately concurred, Delfin Jarnilla (Philippines),
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494 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
The water cure, however, has had a longer association with
the U.S. Government than its application to American and Allied
prisoners of the Japanese. In fact, in the international context, it
came to the attention of the courts of the United States as a result of
the Spanish-American War, and the ensuing U.S. occupation of the
Philippine Islands.
III. THE PHILIPPINES
The United States has largely forgotten its adventure in the
Philippines, but at the time the U.S. occupation was highly controversial
at home, not least because of allegations of misconduct by
American troops. Eventually, courts-martial reached as high as a
general officer,113 leaving the administration to face congressional
inquiries, and the public with a sour aftertaste from its “splendid little
war.”114 One highly publicized aspect of that misconduct was the
“water cure.”
Testifying before Congress, the U.S. Administrator in the
Philippines, William Howard Taft (later President and Supreme
Court Justice) conceded that the “water cure” had been used as a
questioning technique.115 The testimony coincided with publication
of a soldier’s letter home boasting of use of the water cure on Filipino
insurgents.116
The technique persisted in the Philippines. In the compensatory
damages phases of an action against the estate of former Philippine
President Ferdinand Marcos, a U.S. District Court articulated
what it described as both “a human rights violation” and “a form of
torture:” “[t]he ‘water cure,’ where a cloth was placed over a dedissented
in part, Bernard Roling (Netherlands), or entirely dissented Henri Bernard
(France), and Rabhabinod Pal (India). 21 THE TOKYO WAR CRIMES TRIAL, supra note 25.
113. See Guénaël Mettraux, US Courts-Martial and the Armed Conflict in the
Philippines (1899-1902): Their Contributions to National Case Law on War Crimes, 1 J.
INT’L CRIM. JUST. 135 (2003) (Court martial of General Jacob Smith). General Smith was
charged with “conduct to the prejudice of good order and military discipline” before a court
martial in Manila from April 24 to May 3, 1902. Id. at 139. The specifications included
giving orders that “I want no prisoners,” and “the more you kill and burn, the better you will
please me.” Id. General Smith was convicted on the charge (although not all the
specifications), and sentenced to be admonished. Id. at 140.
114. See John T. Bethel, A Splendid Little War, HARV. MAG., Nov./Dec. 1998, at 44,
available at http://www.harvardmag.com/nd98/war.html (“Ambassador John Hay, writing
from London to Theodore Roosevelt, declared that from start to finish [the Spanish-
American War] had been ‘a splendid little war.’”).
115. MILLER, supra note 35, at 213.
116. Id.
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2007] HISTORY OF WATER TORTURE IN U.S. COURTS 495
tainee’s mouth and nose and water poured over it producing a drowning
sensation.”117
The Philippines came into U.S. possession as a result of the
Spanish-American War in 1898.118 During the conflict, the United
States entered into tentative negotiations with Philippine nationalist
guerillas who had been engaged in a revolution against Spanish rule.
American occupation of the islands, and their subsequent transfer
from Spanish to U.S. sovereignty, eventually resulted in a split between
Spain and the United States.119 A bloody conflict followed.120
The fight against the Philippine insurrectionists was, to say
the least, controversial at home.121 The American homeland was divided
between self-described “imperialists” and “anti-imperialists,”
and the conduct of the war resulted in numerous political conflicts.
Not the least of those was the argument over alleged mistreatment of
rebel prisoners by the American counter-insurgency forces,122 including
allegations of various forms of torture. Thus, for example, a
committee was formed in 1902 to “vindicate the National Character.”
123 The New York Times, then a staunchly pro-imperialist newspaper,
opined that:
Reports of cruelty, torture and inhuman procedures in
the Philippines have come to their ears. They have
been shocked by Gen. Jacob H. Smith’s admission
that he issued the order to burn and kill . . . . We beg
to remind the committee that it will be disobedient to
its instructions if it investigates and reports upon nothing
but the water cure torture and wanton killing. The
American people denounce as cruel and monstrous
Gen. Smith’s orders to kill male natives of Samar
above the age of ten. But all candid and fair-minded
American not only want to know but insist upon
knowing the truth about the conditions of the war in
the Philippines. The committee will be unwise . . . if
it excludes from considerations such testimony as this
from William H. Taft, Civil Governor of the Philip-
117. In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F. Supp. 1460,
1463 (D. Haw. 1995).
118. See generally MILLER, supra note 35
119. See id. at 31–56.
120. See id. at 57–66.
121. See id. at 104–28.
122. Inquiries were conducted in Congress and the Press on a continuing basis during
the period between 1899 and 1903. See generally id.
123. Full Disclosure of the Facts, N.Y. TIMES, May 1, 1902, at 8.
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496 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
pines: That there has been cruelty in the Philippines
and that the “water cure” has in some cases been administered
to natives is no doubt true; that it typifies
the conduct of the army in the islands I do not believe.
[I]t is not strange that young officers . . . should resort
to every legitimate means to endeavor to find where
guns were hid by the treacherous foe, and if they
found in vogue a system of torture among the Filipinos,
which the Spaniards, too, had used, is it strange
that human nature weakened.124
As the New York Times indicated, not the least uncommon of the
forms of torture encountered in the Philippines was the water cure.
A. The Water Cure During the U.S. Occupation of the
Philippines
The American Commander in the Philippines in 1900 was
moved to complain that when enemy soldiers were “pursued too
closely they [would] hide their rifles and scatter to their homes, and
no longer wear uniforms or any distinctive insignia but use the dress
of noncombatants of the country.”125 As the American people
learned in some detail, one common means for countering these “illegal
enemy combatants” was questioning using a form of water torture.
126
124. Id.
125. SAN FRANCISCO CALL, Sept. 20, 1900.
126. An extensive study of counterinsurgency in the Philippine War concluded, with
considerable support, that:
Physical mistreatment and torture were never sanctioned by either Division
headquarters in Manila or district headquarters, and there were constant
warnings against it; but it clearly occurred. The most infamous torture was the
“water cure,” which consisted of forcing water down the victim’s throat until
he agreed to divulge the required information. An Army investigation in 1902
concluded that some soldiers had given Filipinos the water cure, but smugly
concluded that in “comparatively few instances is there evidence that a
commissioned officer was present.” Given the prevalence of testimony in
private papers, courts-martial, and other Army investigations, it is impossible
to concur with this judgment. An Army board called to investigate . . .
allegations that torture was widespread heard testimony from both Americans
and Filipinos which suggested that in Tayabas alone, between October and
December 1901, there were seventeen cases of physical abuse involving eight
U.S. officers . . . . [I]n southwestern Luzon the use of the “water cure” was not
the result of random individual sadism. Rather it appears to have been both a
means of retaliation and a distressingly common manner of interrogation
among officers assigned to intelligence work.
BRIAN LINN, THE U.S. ARMY AND COUNTERINSURGENCY IN THE PHILIPPINE WAR, 1899–1902,
at 145–46 (1989).
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Descriptions of the “water cure” vary, but their similarity to
reports of its application by the Japanese is startling. In testimony
before the Senate Committee on the Philippines, former Sgt. Mark
Evans described the administration of the water cure to Filipinos on
four different occasions on the island of Luzon. According to Evans:
In one case the “cure” was administered by native
scouts and in the others by an American soldier. During
an expedition to neighboring islands the witness
said that he had seen an American soldier take two
suspected natives into the water and duck them. He
secured a confession as to the hiding of guns in one
case, but none in the other.
After the first case of ducking the victim seemed, [Evans]
said, to have been quite disabled, being apparently
so weak that he was unable to rise.127
Another witness, former Private Edward Norton, described
one instance in which he had assisted in water-curing a native. The
man’s mouth, he said, was forced open with a stick and the water
poured down his throat. The effect of the treatment was temporary
strangulation. In this particular case, he said, the native delivered up
a number of rifles and pistols after receiving the cure.128
Another former soldier, First Lt. Grover Flint, testified that he
has been a witness to at least twenty applications of the water cure.
Flint stated that he had never seen anyone die as a result of its application,
although he had seen a prisoner rendered unconscious. He
added that “in some cases where it was given to old men he had seen
their teeth fall out.”129
Still another ex-enlisted man, L.E. Hallock, “told of the infliction
of the cure upon a dozen natives . . . . He said they were captured
and tortured in order to secure information of the murder of [an
American soldier who was tortured before his death].” When asked
the effect of the treatment, he testified that “[t]he stomach would
swell up, and in some cases I witnessed blood come from the
mouth.”130
The response to that sort of testimony, along with the ensuing
commentary, was often startling. The attitude of at least some com-
127. Tell of “Water Cure” Cases, N.Y. TIMES, June 13, 1902, at 3.
128. Id.
129. Testified on “Water Cure,” N.Y. TIMES, Apr. 22, 1902, at 2.
130. The Water Cure Described, N.Y. TIMES, May 4, 1902, at 13.
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498 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
pany grade officers was stated by an anonymous “Army Captain”
who wrote to the New York Times to take exception to the inference
in an editorial that “the methods of torture used in the Philippine Islands
have been used against insurgents.”131 He explained that while
some larger bands of insurgents could be considered legitimate, there
were hundreds of smaller ones which “showed by their actions” that
they were actually robbers.132 To destroy these bands, he said, it was
necessary to force individuals to divulge information.133 There was
another group, as well, he added, which required resort to “vigorous
measures.”134 These were local representatives of well-known guerilla
leaders who pretended to be peace-loving but actually collected
money and information for the insurgents.135 The explication which
followed is worth quoting at length:
It was against such men as described above that unauthorized
methods were used to obtain information, and
against such men only. From the results obtained it
became simply a case where the end justifies the
means. A legitimate combatant was never ill-treated.
The water cure is very uncomfortable, but not serious.
A surgeon attached to one of the regiments and called
on for a report as to the water cure, reported to the
regimental commander that it was “a crude sort of
stomach pump.” That describes it perfectly. We all
know that when the stomach becomes over full it
needs no assistance in expelling the excess of contents,
so it is easy to appreciate the falsity of the reports
. . . of Filipinos who have been subjected to the
water cure and then have had people jump on the full
stomach in order to expel the water. At the best the
water cure is brutal enough. I do not think that any
one would add deliberately to the brutality. Salt,
kerosene, and sand mixed with the water used are fancies
of the irresponsible in my opinion. I never heard
of anything but plain water being used. I am not writing
to defend torture, but to let you know what I have
not seen published this Winter; that is, that these vigorous
measures were not used against combatants, but
131. Letter to the Editor, N.Y. TIMES, July 13, 1902, at 8.
132. Id.
133. Id.
134. Id.
135. Id.
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used against outlaws only.136
As one counterinsurgency study noted:
Officially, the Army condemned the water cure, which
fell under [General Order] 100’s proscription of torture.
Unofficially, many officers winked at the practice,
and military courts proved exceedingly reluctant
to punish officers charged with applying coercive
methods. As the war progressed the number of incidents
of abuse grew as officers . . . came to believe
that the “cure” was the only way to uproot the guerilla
infrastructure. Even well-known champions of the
policy of attraction . . . conceded that the water cure
“might be a good thing if judiciously administered in
occasional doses, provided that the antis [antiimperialists]
at home did not find it out.”137
Secretary of War Elihu Root initially responded to charges
before the Senate with a flat denial. In February 1902, he answered
an inquiry from Sen. Henry Cabot Lodge (R-MA), the Committee
Chair, and transmitted reports from officers in the Philippines. Referring
to those reports, Secretary Root claimed that “in substantially
every case [alleging torture] the report has proved to be unfounded or
grossly exaggerated.”138 He added that an allegation that “the ‘water
cure’ is the favorite torture . . . to force natives to give information . .
. [and] already is under investigation.”139 Root then quoted an enclosed
letter from Gen. Funston who called the allegations concerning
the use of water torture an “atrocious lie without the slightest
foundation in fact.”140
Less than two months later, Secretary Root had substantially
changed his position. In light of additional testimony before Sen.
Lodge’s Committee,141 he announced that “directions [had] been
136. Id. (emphasis added).
137. ANDREW BIRTLE, U.S. ARMY COUNTERINSURGENCY AND CONTINGENCY
OPERATIONS DOCTRINE, 1860–1941, at 132 (1998).
138. Cruelty Charge Denied, N.Y. TIMES, Feb. 20, 1902, at 3.
139. Id.
140. Id.
141. Root specifically mentioned the testimony of Sgt. Charles S. Riley. Riley had
testified to Lodge’s Committee that:
The presidente [village chief] was tied and placed on his back under a water
tank holding probably one hundred gallons.
The faucet was opened and a stream of water was forced or allowed to run
down his throat. His throat was held so he could not prevent swallowing the
water, so that he had to allow the water to run into his stomach. He was
directly under the faucet with his mouth held wide open. When he was filled
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500 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [45:468
given to the Judge Advocate General of the Army to take proper
steps,” and that the “War Department will be glad to receive the earliest
possible information of any further evidence which may be elicited
by the committee, tending to fix responsibility upon any one in
the military service of the United States for any violation of the laws
of war.”142 He directed the Army Commander in the Philippines that
“nothing can justify or will be held to justify the use of torture or inhuman
conduct of any kind on the part of the American Army.”143
Courts martial were eventually held, one defendant was convicted,
144 and the water cure drifted off the front pages and out of the
with water it was forced out of him by pressing a foot on his stomach or else
with the hands, and this continued from five to fifteen minutes. A native
interpreter stood immediately over this man as he lay on the floor and kept
saying some word which I should judge meant “confess” or “answer.”
One of the men . . . took a syringe from his saddlebag, and another man was
sent for a can of water . . . holding about five gallons.
The syringe did not have the desired effect and the doctor ordered a second
one. The man got a second syringe that was inserted in his nose. Then the
doctor ordered some salt and a handful of salt was procured and thrown into the
water. Two syringes were then in operation. The interpreter stood over him in
the meantime asking for this second information that was desired. Finally he
gave in and gave the information they sought and then he was allowed to rise.
Testimony Before U.S. Standing Committee on the Philippines, Apr. 14, 1902. Reprinted in
GEORGE J.A. O’TOOLE, THE SPANISH WAR: AN AMERICAN EPIC, 1898, at 389 (1986).
142. More Courts Martial in the Philippines, N.Y. TIMES, Apr. 16, 1902, at 1.
143. Id. Root enclosed directions to the Adjutant General of the Army to cable General
Chafee, the new commander in the Philippines, and directing that General Jacob Smith be
court-martialed if he had given an order to kill all males over the age of ten in a Philippine
province. He also directed that officers named as having administered the water cure be
tried by a court martial. He concluded:
The President desires to know in the fullest and most circumstantial manner, all
the facts, nothing being concealed and no man being for any reason favored or
shielded. For the very reason that the President intends to back up the army in
the heartiest fashion in every lawful and legitimate method of doing its work he
also intends to see that the most rigorous care is exercised to detect and prevent
any cruelty or brutality, and that the men who are guilty thereof are punished.
Great as the provocation has been in dealing with foes who habitually resort to
treachery, murder and torture against our men, nothing can justify or will be
held to justify the use of torture or inhuman conduct of any kind on the part of
the American Army.
Id. (emphasis added).
144. National Archives records related to proceedings of U.S. Army courts-martial or
courts of inquiry can be found in Record Group 153, Records of the Judge Advocate General
(Army). See Mettraux, supra note 113. Major Edwin Glenn and Lieutenant Edwin
Hickman were tried for conduct to the prejudice of good order and military discipline by a
court martial in Catlalogan, Samar in May 1902 for their alleged use of the water cure. The
defense was military necessity, justified by the illegal conduct of the insurgents. Hickman
was acquitted and Glenn suspended from command for one month and fined $50. In his
review, the Army Judge Advocate recognized that the charges constituted “resort to torture
with a view to extort a confession.” Id. at 145. He recommended disapproval because “[t]he
United States cannot afford to sanction the addition of torture to the several forms of force
which may be legitimately employed in war . . . .” Id. (emphasis added). President
Roosevelt affirmed the conviction of Major Glenn and disapproved the acquittal of
Lieutenant Hickman. Id.
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American consciousness until it was brought back to the headlines as
the cruel brutality of a fierce and heartless foe.
The water cure, however, apparently persisted in the Philippines
after the Japanese occupation ended. During the regime of
Ferdinand Marcos (1965–1986), press reports alleged continuing use
of water torture against government opponents.145 Eventually, that
conduct resulted in a civil action in U.S. federal court.
B. The Marcos Regime’s Conduct on Trial
In March 1986, a number of law suits were filed, eventually
resulting in a class action involving over ten thousand plaintiffs.146
The court’s findings demonstrated, inter alia, that water torture as a
form of interrogation and intimidation had survived intact in the Philippines:
Immediately after the declaration of martial law [Orders]
caused the arrests of persons accused of subversions,
apparently because of their real or apparent opposition
to the . . . government. . . . The arrest orders
were means for detention of . . . plaintiffs. During
those detentions the plaintiffs experienced human
rights violations including, but not limited to . . . [t]he
“water cure,” where a cloth was placed over the detainee’s
mouth and nose, and water poured over it
producing a drowning sensation.147
The court affirmed a $766 million jury verdict in favor of the
Plaintiffs and against former Philippine President Marcos. That civil
verdict has been mirrored in at least one criminal proceeding before
the courts of the United States.
145. Post-war use of the water cure was not limited to the Philippines. There were also
reports of its use in the Republic of Korea. Seoul Opposition Asks Free Elections Next
August, N.Y. TIMES, Dec. 7, 1979, at A11 (“Dissident sources said army investigators used
water torture on Christian students . . . . [T]he investigators pumped water into the stomachs
of detained students through their mouths and noses and then jumped on them . . . .”). See
also Henry Stokes, Korea’s Church Militant, N.Y. TIMES MAG., Nov. 28, 1982, at SM67
(“Moon testified that he had been subjected to ‘water torture’: pumping the stomach full of
water and then kicking it, a technique that can cause severe internal injuries while leaving no
outward trace.”). Similar reports also surfaced in Brazil. Issue of Torture Growing in
Brazil, N.Y. TIMES, Nov. 16, 1975, at 18 (“At one point ‘laughter and wisecracks’ were said
to have accompanied water torture.”).
146. In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F. Supp. 1460,
1463 (D. Haw. 1995).
147. Id.
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IV. THE TEXAS WATER TORTURE CASE
In 1983, the Department of Justice affirmed that the use of
water torture techniques was indeed criminal conduct under U.S. law.
Sheriff James Parker of San Jacinto County, Texas, was charged,
along with three of his deputies, for handcuffing prisoners to chairs,
placing towels over their faces, and pouring water on the cloth until
they gave what the officers considered to be confessions.148 The officers
were charged with violating the prisoners’ civil rights. Count
One of the Indictment asserted that the defendants conspired to:
subject prisoners to a suffocating ‘water torture’ ordeal
in order to coerce confessions. This generally included
the placement of a towel over the nose and
mouth of the prisoner and the pouring of water in the
towel until the prisoner began to move, jerk, or otherwise
indicate that he was suffocating and/or drowning.
149
The Sheriff and his deputies were all convicted by a jury under
Count One,150 (as well as under other counts alleging constitutional
violations for the same conduct),151 resulting in at least a four
year sentence on that Count.152 The trial included testimony of another
former deputy that the Sheriff and the other Defendants “gave
[a prisoner] the water treatment:”
A towel was draped over his head . . . He was pulled
back in the chair and water was poured over the
towel.153
The victims’ testimony was strikingly similar to other instances
of water torture at other times and places
Q: Were you frightened?
A: Yes.
Q: What were you afraid of?
A: Afraid of drowning; it was hard to breathe.
148. Brief of Petitioner-Appellee, United States v. Lee, No. 83-2675 (5th Cir. Nov. 9,
1984).
149. Id.
150. Id. at 7.
151. Id. at 4, 7.
152. Id. at 7.
153. United Press International, Ex-Deputy Tells Jury of Jail Water Torture, N.Y.
TIMES, Sept. 1, 1983, at A22.
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Testimony of former inmate Kevin Coffman.154
My hands was handcuffed up under the table and water
was poured into the face of the towel until I started
suffering a state of suffocation and I felt that my life
was in danger.
Testimony of former inmate Craig Punch.155
I thought I was going to drown.
Testimony of former inmate James Hicks.156
On an appeal157 by one of the deputies, the Fifth Circuit described
the trial below:
Lee was indicted along with two other deputies, Floyd
Baker and James Glover, and the County Sheriff,
James Parker, based on a number of incidents in
which prisoners were subjected to a “water torture” in
order to prompt confessions to various crimes. On the
morning trial was to begin, Floyd Baker’s counsel informed
the court and his co-defendants that Baker intended
to admit the government’s allegations were
true but would argue that he did not have the “state of
mind” required for criminal liability. Lee, Glover and
Parker each intended to defend on the ground that they
did not participate in any torture incidents and were
unaware that any such incidents were taking place.
Counsel for the other defendants immediately moved
for severance. The district court deferred a ruling on
these motions pending some clarification of exactly
what Baker’s defense and testimony would be.
At trial, Baker’s defense as developed by his counsel
and his testimony rested on two points. The first was
that he actively participated in only a single torture
episode, and then only because ordered to do so by his
superiors—a “Nuremberg defense.” The second was
that while he believed the torture of prisoners immoral,
he did not at the time think it was illegal. In
154. Brief of Petitioner-Appellee at 8, United States v. Lee, No. 83-2675 (5th Cir. Nov.
9, 1984).
155. Id. at 10.
156. Id. at 12.
157. The sole issue was whether the trial judge abused his discretion in denying a
severance. Lee, 744 F.2d at 1124.
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the course of Baker’s testimony, he identified Lee as a
participant in the torture of several prisoners. Seven
other witnesses also connected Lee with various torture
incidents. At the close of the evidence, the district
judge severed Baker, and put the case of the remaining
defendants to the jury. Lee was convicted on
three counts.158
Lee’s conviction was affirmed on appeal, and all the defendants
received substantial prison sentences.159 United States District
Judge James DeAnda’s comments at sentencing were telling. He told
the former Sheriff that he had allowed law enforcement to fall into
“the hands of a bunch of thugs. The operation down there would embarrass
the dictator of a country.”160
V. CONCLUSION
One can only hope Judge DeAnda was right, and that even a
dictator would find water torture an embarrassment. Certainly, the
United States has made it clear, in its courts, both civil and military,
and before the national legislature, that water torture, by whatever
name it is known, is indeed torture, that its infliction does indeed justify
severe punishment, and that it is unacceptable conduct by a government
or its representatives.
The conclusion of Jay Bybee and John Yoo was that the legal
definition of torture:
covers only extreme acts. Severe pain is generally of
the kind difficult for the victim to endure. Where the
pain is physical, it must be of an intensity akin to that
158. Id. at 1125. See also Morris v. State, 697 S.W.2d 687, 689 (Tex. Ct. App. 1985)
(discussing another allegation of water torture by Sheriff Parker).
159. Former Sheriff Parker, the ringleader, was sentenced to the maximum of ten years
plus a $12,000 fine. Ex-Sheriff Given Ten Year Sentence, N.Y. TIMES, Oct. 27, 1983, at
A11.
160. Id. (emphasis added). Water torture is mentioned in an American Court in another
context. In his concurring opinion in Robinson v. California, 370 U.S. 660 (1962), Justice
Douglas discusses why he believes it is cruel and unusual punishment to treat a drug addict
as a criminal. Id. at 668. He states that “terror and punishment linger on as a means of
dealing with some diseases” and then quotes a statement that “an entire chamber of horrors
constitut[ed] the early treatment of mental illness. The latter includes a wide assortment of
shock techniques, such as the ‘water cures’ (dousing, ducking and near drowning).” Id. at
669. His proposition is particularly interesting in light of the Bybee Memo’s internal
proposition that the United States limited by reservation its accession to the Convention
Against Torture to acts which constituted cruel and unusual punishment under the U.S.
Constitution. See supra note 6.
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which accompanies serious physical injury such as
death or organ failure. Severe mental pain requires
suffering not just at the moment of infliction but it
also requires lasting psychological harm, such as seen
in mental disorders like posttraumatic stress disorder.
161
Their definition162 may be subject to challenge as a matter of law.
161. See Bybee, supra note 6, at 46.
162. Prof. Yoo later explained that:
While the definition of torture in the August 2002 memo is narrow, that was
Congress' choice. When the Senate approved the U.N. Convention Against
Torture in 1994, it stated its understanding of torture as an act “specifically
intended to inflict severe physical or mental pain or suffering.” The Senate
defined mental pain and suffering as “prolonged mental harm'” caused by
threats of severe physical harm or death to a detainee or third person, the
administration of mind-altering drugs or other procedures “calculated to disrupt
profoundly the senses or the personality.” Congress adopted this definition in a
1994 law criminalizing torture committed abroad.
The Senate also made clear that it believed the treaty’s requirement that nations
undertake to prevent “cruel, inhuman or degrading treatment or punishment”
was too vague. The Senate declared its understanding that the United States
would follow only the Constitution's prohibition of cruel and unusual
punishment.
The Senate and Congress’s decisions provided the basis for the Justice
Department’s definition of torture:
“Physical pain amounting to torture must be equivalent in intensity
to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death. For purely
mental pain or suffering to amount to torture (under U.S. law), it
must result in significant psychological harm of significant duration,
e.g., lasting for months or even years. . . . We conclude that the
statute, taken as a whole, makes plain that it prohibits only extreme
acts.”
Under this definition, interrogation methods that go beyond polite questioning
but fall short of torture could include shouted questions, reduced sleep, stress
positions (like standing for long periods of time), and isolation from other
prisoners. The purpose of these techniques is not to inflict pain or harm, but
simply to disorient.
Yoo, supra note 5. He goes on to explain that:
The department issued a new memo that superseded the August 2002 memo.
Among other things, the new memo withdrew the statement that only pain
equivalent to such harm as serious physical injury or organ failure constitutes
torture and said, instead, that torture may consist of acts that fall short of
provoking excruciating and agonizing pain.
Although some have called this a repudiation, the Justice Department's new
opinion still generally relies on Congress’ restrictive reasoning on what
constitutes torture. Among other things, it reiterates that there is a difference
between “cruel, inhuman and degrading treatment'” and torture B a distinction
that many critics of the administration have ignored or misunderstood.
Id. Finally, Prof. Yoo, attempts to separate the Memo from abuses at Abu Ghraib prison in
Iraq. In doing so, he says that:
those abuses had nothing to do with the memos defining torture B which did not
discuss the pros and cons of any interrogation tactic B nor the decision to deny
POW protections to Al-Qaida and the Taliban. Gonzales, among others, has
made clear that the administration never ordered the torture of any prisoner.
Id. What he does not say, is that Newsweek was in any fashion incorrect when it said that his
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But whether it is technically valid or not, can there be any question if
we listen to the victims who speak above, and to the judges who convicted
their torturers, that water torture, the repetitive artificial
drowning and revival of another human being, falls within their
Memo’s parameters? Can there be any doubt that it is an extreme
act? Can there be any doubt that it causes severe physical and lasting
psychological harm? Can there be any doubt that it is torture?
If we remember what we said and did when our military personnel
were victims, if we remember our response when they were
perpetrators, how can our government possibly opine that the use of
water torture is within the bounds of law? To do so is beneath contempt;
it is beyond redemption; and it is a repudiation of the rule of
law that in our origins was the core principle of governance which
distinguished our nation from the crowned dictatorships of the European
continent.
Let us remember the past to avoid its endless repetition.163
memo “was prompted by CIA questions about what to do with a top Qaeda captive . . . who
had turned uncooperative,” that “it was drafted after White House meetings” which
“discussed specific interrogation techniques,” and that, “[a]mong the methods they found
acceptable: ‘water-boarding,’ or dripping water into a wet cloth over a suspect’s face, which
can feel like drowning.” Hirsh et al., supra note 7. It would be interesting if he would do so.
163. See GEORGE SANTAYA, THE LIFE OF REASON OR THE PHASES OF HUMAN PROGRESS
284 (2d ed. 1932) (“Progress, far from consisting in change, depends on retentiveness. . . .
Those who cannot remember the past are condemned to repeat it.”); GEORGE ORWELL, 1984,
at 35 (2d ed. 1977) (“Who controls the past controls the future: who controls the present
controls the past.”).