the United States Army, of which the author was a proud member, and specifically, to MG

Thomas J. Romig, who so clearly exemplifies the vision which the Corps has of itself as

“...committed to justice [and] grounded in values...”.

Brooklyn Law School, George Mason Law School, New York Law School. Visiting Professor,

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.

Synopsis: Historical analysis demonstrates U.S. courts have consistently held artificial

drowning interrogation is torture which, by its nature, violates U.S. statutory prohibitions.

By

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..

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.

John Yoo, Professor of Law, University of California at Berkeley.

I

Introduction

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strapped to a board and immersed in water– a technique used to make the subject believe that he

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.”

2004).

Interrogation techniques using water to induce the sensation of drowning in the person under

questioning (The technique has, in recent news accounts, generally been called “waterboarding.”)

An August, 2002, memo, drafted by John Yoo of the Department Of Justice’s Office of

Bybee, discussed interrogation methods and whether they might violate U.S. or international law.

According to Newsweek, it:

“...learned that 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...”

at p.52 (emphasis added).

The Yoo Memo’s authors concluded that:

We conclude that torture 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

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11 18 U.S.C. § 2441.

"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--

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 significant range of acts that though they might constitute cruel, inhuman,

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.

On 16 October, 2006, President Bush signed into law the Military Commissions Act of

1949, provided in Section 3 that a “war crime” included conduct which constituted a violation of

common article 3 of the Conventions (covering conflicts not of an international nature in territory

of a signatory power). The Military Commissions Act modified Section 3 adding a new

only if they inflicted “...severe physical or mental pain or suffering [if not incidental to lawful

The apparent intention of the modification of Common Article Three was to affect its

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“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 “Whether 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,

2006.

water torture in various forms under the general rubric of “water boarding.” See, generally, Karen

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

(2005).

126 S.Ct. 2749, 2795-96,165 L.Ed.2d 723 (2006). In addition to stripping defendants before

provided that:

No 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].

S. 3930 at Sec. 6(a)(2).

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

acting alone before domestic courts, commissions and courts-martial, and as a participant in the

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Commission, Law Reports of Trials of War Criminals, Vol. III, p.1 ( throwing victim, naked and

with bound hands and feet, into a bath filled with ice-cold water, where he was repeatedly ducked

under, constituted torture).

The prosecution was for numerous misdeeds but 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,

world community, not only condemned the use of water torture, but severely punished as

criminals those who applied it.

In trials, both before U.S. military commissions, and as a participant in the International

prosecutors roundly condemn the practice as it was applied to American servicemen, 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

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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 head 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 at pp. 86-87.

which USAF Lt. Col. William Harrison describes being “...tortured with the ‘water treatment’ by

Communist North Koreans.” As Harrison described it:

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 breath. This went on hour after, 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.

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[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.

1460 at 1463 (D. Hawaii, 1995), discussion, infra.

Washington Post, 3 August, 2005.

technique has long been prized by extreme interrogators for its unique combination of severe

mental trauma and physical pain with, unlike other methods, a lack of perceivable physical

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Institute for Occupational Health and Safety, NIOSH Publication No. 2004-152 (2004).

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 near-asphyxiation similar to water-boarding, and that it is torture, giving rise to

At least one, in-depth study, indicates that suffocation by immersion may cause severe

[a] 31-year-old man ... with panic disorder. Typically, his panic attacks were

characterized by predominantly respiratory symptoms, and there were also

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 reported that

their ] ...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.

(Emphasis added).

Indeed, even among experienced scuba divers more than half report having panic attacks

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,

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2005.

2005. “It depends on the circumstances,” he said, including the details of what was done, the

condition of the detainee and what other interrogation methods has been used, Yoo said. See,

footnote 6 , supra.

Penguin (New York, 2002). The Japanese captured ten of the raiders and executed three of them

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

10-15% 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,

Despite the mental and physical trauma, water torture has been variously described as

ever experienced it.

Captain Nielsen, the U.S. aviator captured by the Japanese in China following the

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following a trial before a Japanese Army tribunal. Following the conclusion of hostilities, the

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.

Nielsen testimony, id.

the techniques applied by the Japanese. One investigator describes water-boarding as a technique

“...in which a prisoner is stripped, shackled and submerged in water until he begins to lose

occasioned by its application to American military personnel. But it is striking for another

reason; 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 questioning

deputies for interrogating prisoners using one of the methods described above.

In all cases, whether the water cure was applied by Americans, 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

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Japanese of water based interrogation techniques on civilians. An American missionary, for

example, 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.”

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

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.

Cited in IMFTE Final Judgement, Torture Section, at p 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.

...the 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

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/#kubark..

The clearest exposition of the U.S. position on the use of the water treatment as torture is

found in cases in which the Japanese armed forces applied it to Allied prisoners of war during

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

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command of General MacArthur...” that, inter alia, “The 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.” Article 1, and “The

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.” Article 2. See,

Avalon Project web site, http://www.yale.edu/lawweb/avalon/imtfech.htm.

http://www.trumanlibrary.org/educ/tokyo.htm.

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,

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Court, Kuala Lumpur, 30 January - 1 February, 1946.

Australian Military Court, Rabaul 20-23 March, 1946.

(September, 2005).

1949, the subject of which was principally allegations of biological and chemical warfare.

http://www.historynet.com/wars_conflicts/world_war_2/3035796.html?showAll=y&c=y.

Martial at Batavia, 25 October, 1946.

not to include that individual as a representative “Class A” defendant before the IMTFE. In

August 1945, the Coordinating Committee of the US departments of State, War, and Navy

(SWNCC) published its classification of war criminals: A, B, and C. In brief, Class A were 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 were

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. Class C were 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, October, 2004.

questioned using water torture, and the results of that torture (although not its actual application)

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containing Charges and Specifications), NARA, Suitland, MD.

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.

Sec. Of State Cordell Hull, Note to Japanese Government, 5 April, 1943, in Evidence File,

was included in the charges and specifications against the defendants.

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 Military

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

CPT Nielsen’s testimony was part of the prosecution’s proof that the Doolittle raiders

Sawada was present during that testimony and was asked about it on cross-examination:

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...

**********

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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?

A: I heard him say he received it from the Gendarmes.

Trial Transcript, Record at pp. 439-440.

In his closing argument the Prosecutor explained the government’s position on the

application of the facts about prisoner mistreatment to General Sawada:

...our 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.

Id at 490.

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.

Id at 491.

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.” Judgement of the Commission, Record at p. 549.

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 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

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commission convened by the Commanding Gneral Philippines-Ryukyus Command. NARA

NND 775011 Record Group 331 Box 1586.

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.” 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

been obtained through torture. A key aspect of that, 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 which elicited compelling descriptions of water torture from its victims, and which

resulted in severe punishment for its perpetrators.

testimony from Ramon Lavarro, 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 SGM 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 ti place

me down below 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

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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 breath?

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...

When Yuki learned that Lavarro was lying, he was brought back to the Kempentai facility

and again subjected to the water cure:

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 breath.

Q: How many times did he do that?

A: Two or three times.

Trial Transcript pp. 84-88

In his summation, the Prosecutor discussed Lavarro’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 imprisonement.

Id at 241.

A U.S. Military Commission at Yokohama, Japan. tried four Japanese defendants for

torture and mistreatment of American and Allied prisoners at Fukoka Prisoner of War Branch

Camp Number 3, in Kyushu. Water torture was among the acts alleged in the specifications

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RG 153, Entry 143 Box 1025

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.

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.

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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: 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.

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.

None of the specifications were on water torture per se, but specifications 2 and 9 refer to

forcing prisoners into a tank of water, 2 is 5 unknown pows, 9 is throwing American POW James

E Martin into a tank of water. The testimony discussed infra ties those specifications into water

torture.

Mineno. See discussion, infra at fn 69.

doctor, interpreter, senior non-commissioned officer, and mess sergeant. The charges against

them arose from two separate water torture incidents in which they participated; one against a

single victim, John Burton, and one against several prisoners arising from the jailers’ believe the

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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 Officer.

Affidavit of Captain Vetalis Vernon Anderson, 20 Oct. 1945, San Francisco, CA., and Captain

William Arno Blueher (both Med Corps)

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.”

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 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

The witnesses’ 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.

They would then pour about two gallons of water from a pitcher into my nose and mouth

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 without

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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

breath 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 imopossible for me

to arise so one of the prisoners...helped me.

Affidavit of John Henry Burton, Los Angeles, CA, 26 April, 1946, (civilian captured on Wake

Island).

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 22 Oct 1945, Alameda CA (victim).

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, taken 28

Sept, 1945 at 29 Replacement Depot.

67

“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 95 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.

that his head was toward the floor and feet resting on a nearby sink. Water was then

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Affidavit of James William Pettit, 12 October, 1945, Alameda, CA.

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...”

NND 735027 Record Group 153, Entry `145, Box 151. Mineno was a civilian employee of the

Imperial Japanese Army.

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.

Mineno, the civilian guard and Mess Sergeant Nakamura both received 20 years confinement at

hard labor; and Sergeant Major Kita and Mr Asano, the interpreter were given confinement for

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15 years at hard labor.

Army Judge Advocate, 1946-1949, Natioonal Archives Microfilm Publications (1981).

Yokohama. NND735027 RG 153 Entry 143 Box 1036.

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.

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

torture charges against Iwata involved his mistreatment of a Dutch Prisoner of War, A. A.

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 attandent, 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.

Testimony of Johannas J. Budding, Captain, Royal Netherlands Indies Army, Special Troops.

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solitary confinement” and of the excepted words not guilty. He was sentenced to 12 years

Yale Law School, http://www.yale.edu/lawweb/avalon/imtfech.htm.

was a former Judge Advocate General of the United States Army who had participated

extensively in the drafting and application of the procedural and evidentiary rules which

governed both the Nuremburg Tribunal and the IMTFE. See, Wallach, supra at fn. 16.

in U.S. courts.

conventional War Crimes and Crimes against Humanity by ordering, authorizing and permitting

In addition to those single nation military commissions conducted by the United States,

water torture was a major issue in proceedings before the IMTFE. That tribunal was created by

weight, in history if not in law.

C

The International Tribunal

The IMTFE was principally concerned with Japanese crimes against states including acts

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“...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 labour 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,” including “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.” Appendix D, Section One; “Excessive 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...”

Appendix D, Section Four; and “Large numbers of the inhabitants of [occupied] territories were

murdered, tortured, raped and otherwise ill-treated, arrested and interned without justification,

sent to forced labour, and their property destroyed or confiscated, Appendix D, Section Twelve.

See, IMTFE Judgement, Indictment, http://www.ibiblio.org/hyperwar/PTO/IMTFE/index.html.

The Judgement of the International Military Tribunal for the 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...

Judgement of the International Military Tribunal for the Far East at 49,663.

As noted above, the Judgement described the water treatment as “commonly applied.” It

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 breath 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

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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.

Affidavit of J.L. Wilson, The Right Reverend Lord Bishop of Singapore, admitted as Prosecution

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 immersions.” A towel was

fixed under the chin and down over the face. Than 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.

Report of Dr. R. Flachs on treatment by Japanese Kenpeitai [military police] at Bandung, Dutch

East Indies, Admitted as Prosecution Exhibit 1752A, 27 December, 1946, IMTFE Record at

13,691.

The technique was similar in Shanghai:

Various tortures were administered during interrogation, the main one 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.

Affidavit of CPT Edward E. Williamson, sworn to on 6 June, 1946, Admitted as Prosecution

Exhibit 1892-A, 3 January, 1947, IMTFE Record at p. 14,168.

A French prisoner of the Japanese at Cao-Bang in Vietnam described “water punishment”

applied to him:

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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, 12

December, 1946, IMTFE Record at 12,607; Affidavit of Amhad Bin Cheteh regarding death of

prisoners following water torture at Penang [Malaysia], admitted as Prosecution Exhibit 1531A,

16 December, 1946, IMTFE Record at 12,959; Solemn Declaration of Harry Joseph regarding

tortures by Kempeitai at Kyaikto [Myanmar] (“...a large quantity of water slowly poured into

[prisoner’s] mouth and nostrils, so that the prisoner suffocated”), admitted as Prosecution Exhibit

1552A, 16 December, 1946, IMTFE Record at 12,982; Affirmation of Pyaray Mohan (victim of

water torture in Andaman Islands), admitted as Prosecution Exhibit 1611A, 18 December, 1946,

IMTFE Record at 13,186; Affirmation of Murad Ali (Indians tried as spies in Adaman Islands,

water torture carried, including by one of the judges), admitted as Prosecution Exhibit 1616A, 18

December, 1946, IMTFE Record at 13,193; Affidavit of MAJ A. Zimmerman, (“water test” at

Buitenzorg [now Bodor], Indonesia) admitted as Prosecution Exhibit 1750, 26 December, 1946,

IMTFE Record at 13,684; Affidavit of Prof. E. DeVries, (underwent “water test” 22 times during

a period of two months at Buitenzorg [now Bodor], Indonesia), admitted as Prosecution Exhibit

1751, 26 December, 1946, IMTFE Record at 13,686; Affidavit of CDR C.D. Smith regarding

water torture at Shanghai (“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 fivegallon

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

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 litres of

water forced down me.

Affidavit of Marcel Robert, Admitted as Prosecution Exhibit 2134-A, 16 January, 1947, IMTFE

Record at p. 15,339.

determination that the Japanese uniformly engaged in torture throughout occupied areas. The

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the treatment is resumed.”), admitted as Prosecution Exhibit 1901A, 3 January, 1947, IMTFE

Record at 14,181; Affidavit of Dominique Poli (given “water punishment” several times at

Hanoi, Vietnam by Japanese police ) admitted as Prosecution Exhibit 1901A, 16 January, 1947,

IMTFE Record at 15,341; and Declaration of Leon Artouard, interrogated by Kempetai at

Saigon, Vietnam (“...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 by a whip or a staff slipped between the teeth, or a rag held firmly over these

two orifices.” admitted as Prosecution Exhibit 1901A, 16 January, 1947, IMTFE Record at

15,366.

Kamura, Akira Muto and Hideki Tojo, who were convicted of Count 54 (ordering, authorizing,

death by hanging. Those convicted of Count 55, Shunroko Hata, Kuniaki Kosio, (failure to take

adequate steps to prevent war crimes) were generally sentenced to life imprisonment except for

defendant Iwane Matsui who was sentenced to death after he was convicted of failing to prevent

the Nanjing massacre, and Mamoru Shigemitsu who was sentenced to seven years imprisonment

based on mitigating circumstances. Many of the defendants were, of course, convicted of other

crimes of conspiracy, aggression and against peace.

in part, Bernard Roling, Netherlands, or entirely dissented Henri Bernard, France and

Rabhabinod Pal, India..

The water cure, however, has had a longer association with the US. 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 United States Courts as a result of the Spanish-American War, and

the resulting 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

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with “...conduct to the prejudice of good order and military discipline” before a court martial in

Manilla from 24 April to 3 May, 1902. The Specifications included giving orders that “I want no

prisoners,” and “...the more you kill and burn, the better you will please me.” General Smith was

convicted of the charge (although not all the specifications), and sentenced to be admonished. Id

at 140.

start to finish [the Spanish-American War] had been "a splendid little war."

http://www.harvardmag.com/issues/nd98/war.html

administration facing congressional inquiries, and the public with a sour after taste from its

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

The technique lasted in the Philippines. In the compensatory damages phases of an action

against the estate of former Philippine President Ferdinand Marcos, a United States District

Court articulated what it described as both “...a human rights violation...” and “...a form of

torture.”

The “water cure”, where a cloth was placed over a detainee’s mouth and nose and

water poured over it producing a drowning sensation;

Hawaii, 1995).

The Philippine Islands came into U.S. possession as a result of the Spanish-American

Philippine nationalist guerillas who had been engaged in a revolution against Spanish rule.

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period between 1899 and 1903. See, generally, Miller supra.

American occupation of the islands, and their subsequent transfer from Spanish to U.S.

The fight against the Philippine insurrectionists was, to say the least, controversial at

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 counterinsurgency

committee was formed in 1902 to “...vindicate the National Character”. 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 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 Philippines: 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; but that it typifies the conduct of the

army in the islands I do not believe...It is not strange that young officers ...should

resort to every legitimate means 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...

As the Times indicated, not the least uncommon, of the forms of torture encountered in

the Philippines was the water cure.

A

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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 judgement. 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...in 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.

of North Carolina Press (Chapel Hill, 1989).

The Water Cure During U.S. Occupation of The Philippines

The American Commander in the Philippines 1n 1900, was moved to complain when the

enemy was “...pursued too closely they hide their rifles and scatter to their homes, and no longer

As the American people learned in some detail, one common means for countering these “illegal

Descriptions of the “water cure” vary, but their similarity to its application by the

Japanese is startling.

In testimony before the Senate Committee on the Philippines, former Sergeant Mark

Evans described 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

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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.

Another witness, former Private Edward Norton “...described in one instance where 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 after receiving the cure delivered up a number of rifles and

Another former soldier, First Lieutenant Grover Flint testified he has been a witness to at

least twenty applications of the water cure. Flint sated he had never seen anyone die as a result

although he had seen a prisoner rendered unconscious, and that “...in some cases where it was

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 “The stomach would swell up, and in some cases I witnessed blood