Legal Justification for Waterboarding

The release of Office of Legal Counsel documents offers more than just the first authoritative description of waterboarding procedure. In the memos, OLC lawyers Jay S. Bybee and Steven G. Bradbury offer the Bush Administration's legal justification for the practice. Specifically, whether waterboarding "would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code", the legal definition. Bybee and Bradbury explain that waterboarding is not an act "specifically intended to inflict severe physical or mental pain or suffering" because:

  • p16: Interrogators may claim they don't "specifically intend" to harm prisoners if experts tell them that waterboarding does not cause physical or mental pain or suffering. Experts can tell them this because...
  • p.11: Drowning cannot be described as "physical pain" and therefore does not cause "pain and suffering". (Irrelevant: USC 2340A prohibits "physical or mental pain or suffering".)
  • p.11: "Suffering" only occurs for "a protracted period of time", and the duration of waterboarding is not "protracted" enough.
  • p.17: Military SERE trainees do not experience "negative long-term mental health consequences" during training by fellow military. Therefore real prisoners in real interrogations can't be expected to experience long-term mental health consequences either.
Below the fold is an annotated summary of the opinion of Jay Bybee and the 2002 Office of Legal Counsel. Readers are encouraged to make up their own minds whether their argument is persuasive.

Jay S. Bybee, August 1, 2002: Memo for John Rizzo, Acting Counsel for the CIA

"Our advice is based on the following facts..." (p.1)

The answer in this memo is "based upon the facts ... which you have provided to us", that he assumes the Administration does not "have any facts in your posession contrary to the facts outlined here", and that "if these facts were to change, this advice would not necessarily apply". If the reality or assumptions of the memo are not accurate, the memo's conclusion may not be valid.

"prolonged mental harm" (p.6-8):

"what effect, if any, these techniques would have on Zubaydah's mental health."

Bybee thinks waterboarding does not produce "prolonged mental harm" because it has "been used and continue[s] to be used on some members of our military personnel during their SERE training", that "these techniques have been used ... without any reported incident of prolonged mental harm". "On-site psychologists who have extensive experience with the use of the waterboard in Navy training have not encountered any significant long-term mental health consequences from its use." The memo presents Zubaydah as a good candidate for waterboarding because, "Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods." He is "remarkably resilient and confident that he can overcome adversity."

"severe physical or mental pain or suffering" (p.9,10,11):

"At issue is whether ... those using these procedures would have the requisite mental state and whether these procedures would inflict severe pain or suffering within the meanjng of the statute."

Physical:

Because waterboarding "does not inflict actual physical harm ... although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain". Drowning is terrifying and profoundly unpleasant, but not technically painful. And because "the waterboard inflicts no physical pain or actual harm whatsoever, does not inflict 'pain and suffering'". And even if "suffering" were separately prohibited, the "controlled acute episode" does not occur for a protracted period of time and should therefore not be considered suffering.

Mental:

Mental pain is defined by Section 2340 as "the prolonged mental harm caused by or resulting from" various "predicate acts". Bybee addresses each of these acts.

Prohibited harm may result from "a threat of imminent death" or "physical pain or suffering". Because waterboarding does not produce physical pain or suffering, it cannot produce mental pain or suffering. "Use of the waterboard constitutes a threat of imminent death" and "fulfills the predicate act requirement under the statute", however that threat must produce prolonged mental harm lasting months or years. Because willing SERE trainees don't experience prolonged mental harm from their trainers, Bybee does not "anticipate that prolonged mental harm would result from use of the waterboard" by an unwilling prisoner's interrogators.

Prohibited harm may also result from "a threat of severe physical pain or suffering", and Bybee concedes that the proposed treatment may "cause a reasonable person to believe that he is being threatened with severe pain or suffering". But the statute only says that the act must actually cause the harm, and because Bybee hasn't seen evidence indicating that it would, he concludes that it wouldn't.

Specific Intent: (p.16-17)

Interrogators must "expressly intend to cause ... severe pain or suffering". "If a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent." If an interrogator "has an honest belief that his actions will not result in severe pain or suffering" the treatment is reasonable, and "an honest belief need not be reasonable", since otherwise reasonable doubt can be trumped by "reliance on the advice of experts".

"The constant presence of personnel with medical training ... indicates that it is not your intent to cause severe physical pain." I.E. someone cannot intend to cause pain if there is a doctor standing near them.

"Prolonged mental harm is substantial mental harm of a sustained duration - months or even years after the acts were inflicted." Even if such harm actually results, "a good faith belief can negate this element".

Because American military trainees experience a "full course of conduct to resemble a real interrogation" during SERE training, and "use of these methods together or separately ... has not resulted in any negative long-term mental health consequences", the people who use these techniques in real interrogations against real prisoners cannot be intending to cause harm.