User:Shibumi2/Waterboarding/Sandbox

I am rewriting the article in this space tor reduce the number of times that the word "torture" appears. Please review and discuss on Talk:Waterboarding. Shibumi2 (talk) 22:48, 25 February 2008 (UTC)

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thumb|Painting of waterboarding at Cambodia's [[Tuol Sleng Prison, by former inmate Vann Nath.]] Waterboarding is a form of torture that consists of immobilizing a person on their back, with the head inclined downward, and pouring water over the face and into the breathing passages. Through forced suffocation and inhalation of water, the subject experiences the process of drowning and is made to believe that death is imminent. In contrast to merely submerging the head face-forward, waterboarding almost immediately elicits the gag reflex. Although waterboarding does not always cause lasting physical damage, it carries the risks of extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, injuries (including broken bones) due to struggling against restraints, and even death. The psychological effects on victims of waterboarding can last for years after the procedure.

Waterboarding was used for interrogation at least as early as the Spanish Inquisition to obtain information, coerce confessions, punish, and intimidate. It is considered to be torture by a wide range of authorities, including legal experts, politicians, war veterans, intelligence officials, military judges, and human rights organizations. In 2007 waterboarding led to a political scandal in the United States when the press reported that the CIA had waterboarded extrajudicial prisoners and that the Justice Department had authorized this procedure. The CIA has admitted waterboarding Al-Qaida suspects Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.

Technique
The waterboarding technique was characterized in 2005 by former CIA director Porter J. Goss as a "professional interrogation technique." According to press accounts, a cloth or plastic wrap is placed over or in the person's mouth, and water is poured on to the person's head. As far as the details of this technique, press accounts differ - one article describes "dripping water into a wet cloth over a suspect's face", another states that "cellophane is wrapped over the prisoner's face and water is poured over him." CIA officers who have subjected themselves to the technique have lasted an average of 14 seconds before caving in.

Two televised segments, one from Fox News and one from Current TV, demonstrate a waterboarding technique that may be the subject of these press descriptions. In the videos, each correspondent is held against a board by the interrogators. In the Current TV segment, a rag is then forced into the correspondent's mouth, and several pitchers of water are poured onto the rag. The interrogators periodically remove the rag, and the correspondent is seen to gasp for breath. The Fox News segment mentions five "phases" of which the first three are shown. In the first phase, water is simply poured onto the correspondent's face. The second phase is similar to the Current TV episode. In phase three, plastic wrap is placed over the correspondent's face, and a hole is poked into it over his mouth. Water is poured into his mouth through the hole, causing him to gag. He mentions that it really does cause him to gag; that it could lead to asphyxiation; and that he could stand it for only a few seconds.

Dating back to the Spanish Inquisition, the technique has been favored because, unlike most other techniques, it produces no marks on the body. Information retrieved from the waterboarding may not be reliable because a person under such duress may admit to anything, as harsh interrogation techniques lead to false confessions. "The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law," says John Sifton of Human Rights Watch. It is "bad interrogation. I mean you can get anyone to confess to anything if the torture's bad enough," said former CIA officer Bob Baer. The Independent reports "legal experts said Khalid Sheikh Mohammed appeared to be exaggerating his role for his own self-aggrandizement and may also have deliberately floated false claims to send US investigators on wild goose chases."

Mental and physical effects
Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, has treated "a number of people" who had been subjected to forms of near-asphyxiation, including waterboarding. An interview for The New Yorker states, " 'Some victims were still traumatized years later', he said. One patient couldn't take showers, and panicked when it rained. 'The fear of being killed is a terrifying experience,' he said." Keller also stated in his testimony before the Senate that "Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia (rapid heart beat) and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse."

In an open letter to U.S. Attorney General Alberto Gonzales, Human Rights Watch claimed that waterboarding can cause the sort of "severe pain" prohibited by 18 USC 2340 (the implementation in the United States of the United Nations Convention Against Torture), that the psychological effects can last long after waterboarding ends (another of the criteria under 18 USC 2340), and that uninterrupted waterboarding can ultimately cause death.

Spanish Inquisition
A technique similar to waterboarding called toca, along with garrucha (or strappado) and the most frequently used potro (or the rack), was used (though infrequently) during the trial portion of the Spanish Inquisition process. "The toca, also called tortura del agua, consisted of introducing a cloth into the mouth of the victim, and forcing them to ingest water spilled from a jar so that they had the impression of drowning." One source has claimed that the use of water in these techniques also had profound religious significance to the Inquisitors.

Colonial times
Agents of the Dutch East India Company used a precursor to waterboarding during the Amboyna massacre, which took place on the island of Amboyna in the Molucca Islands in 1623. At that time, it consisted of wrapping cloth around a victim's head, after which the interrogators "poured the water softly upon his head until the cloth was full, up to the mouth and nostrils, and somewhat higher, so that he could not draw breath but he must suck in all the water." In one case, the interrogator applied water three or four times successively until the victim's "body was swollen twice or thrice as big as before, his cheeks like great bladders, and his eyes staring and strutting out beyond his forehead."

After the Spanish-American War of 1898
After the Spanish American War of 1898 in the Philippines, the US Army used waterboarding which was called the “water cure” or “Chinese water torture.” at the time. Major Edwin Glenn was court martialed and sentenced to 10 years hard labour for waterboarding a suspected insurgent. President Theodore Roosevelt ordered the court-martial of the American General on the island of Samar for allowing his troops to waterboard, when the court-martial found only that he had acted with excessive zeal Roosevelt disregarded the verdict and had the General dismissed from the Army.

World War II
During World War II, Japanese troops, especially the Kempeitai, as well as the Gestapo, the German secret police, used waterboarding as a method of interrogation. During the Japanese occupation of Singapore the Double Tenth Incident occurred, this included waterboarding consisted of binding or holding down the victim on his back, placing a cloth over his mouth and nose, and pouring water onto the cloth. In this version interrogation continued, with the interrogators beating the victim if he did not reply and the victim swallowing water if he opened his mouth to answer or breathe. When the victim could ingest no more water, the interrogators would beat or jump on his distended stomach.

Algerian War
The technique was also used during the Algerian War (1954-1962). The French journalist Henri Alleg, who was subjected to waterboarding by French paratroopers in Algeria in 1957, is one of only a few people to have described in writing the first-hand experience of being waterboarded. His book The Question, published in 1958 with a preface by Jean-Paul Sartre (and subsequently banned in France until the end of the Algerian War in 1962) discusses the experience of being strapped to a plank, having his head wrapped in cloth and positioned beneath a running tap:

"The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. But for a while I could still breathe in some small gulps of air. I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I couldn't hold on for more than a few moments. I had the impression of drowning, and a terrible agony, that of death itself, took possession of me. In spite of myself, all the muscles of my body struggled uselessly to save me from suffocation. In spite of myself, the fingers of both my hands shook uncontrollably. 'That's it! He's going to talk,' said a voice.

The water stopped running and they took away the rag. I was able to breathe. In the gloom, I saw the lieutenants and the captain, who, with a cigarette between his lips, was hitting my stomach with his fist to make me throw out the water I had swallowed."

Alleg stated that he had not broken under his ordeal of being waterboarded. Alleg has stated that the incidence of "accidental" death of prisoners being subjected to waterboarding in Algeria was "very frequent."

Vietnam War
Waterboarding was designated as illegal by U.S. generals in the Vietnam War. On January 21, 1968, The Washington Post published a controversial photograph of an American soldier supervising the waterboarding of a North Vietnamese POW near Da Nang.photo The article described the practice as "fairly common." The photograph led to the soldier being court-martialled by a U.S. military court within one month of its publication, and he was thrown out of the army. Another waterboarding photograph of the same scene is also exhibited in the War Remnants Museum at Ho Chi Minh City.

Khmer Rouge
The Khmer Rouge at the Tuol Sleng prison in Phnom Penh, Cambodia, used waterboarding as a method of interrogation between 1975 and 1979. The practice was documented in a painting by former inmate Vann Nath, which is on display in the Tuol Sleng Genocide Museum.

U.S. Military survival training
All special operations units in all branches of the U.S. military employ the use of waterboarding as part of survival school (SERE) training, to psychologically prepare soldiers for the eventuality of being captured by the enemy forces.

Jane Mayer wrote for The New Yorker: "According to the SERE affiliate and two other sources familiar with the program, after September 11th several psychologists versed in sere techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the sere program, as the affiliate put it. “They took good knowledge and used it in a bad way,” another of the sources said. Interrogators and bsct members at Guantánamo adopted coercive techniques similar to those employed in the sere program." and continues to report: "many of the interrogation methods used in sere training seem to have been applied at Guantánamo."

Use by law enforcement
The use of "third degree interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread in early American policing. Lassiter classified the water cure as "orchestrated physical abuse." The technique employed by the police involved either holding the head in water until almost drowning, or laying on the back and forcing water into the mouth or nostrils. Such techniques became popular after 1910 when the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions. The publication of this information in 1931 as part of the Wickersham Commission's "Report on Lawlessness in Law Enforcement" led to a decline in the use of third degree police interrogation techniques in the 1930s and 1940s.

In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The complaint said their technique "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." The sheriff was sentenced to ten years in prison, and the deputies to four years.

Use by intelligence officers
Many reports say that intelligence officers of the United States used waterboarding to interrogate prisoners captured in its War on Terrorism.

The June 21, 2004 issue of Newsweek stated that the Bybee memo, a 2002 legal memorandum drafted by former OLC lawyer John Yoo that described what sort of interrogation tactics against suspected terrorists or terrorist affiliates the Bush administration would consider legal, was "prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative ... and 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 Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions." Among the methods they found acceptable was waterboarding.

In November 2005, ABC News reported that former CIA agents claimed that the CIA engaged in a modern form of waterboarding, along with five other "Enhanced Interrogation Techniques", against suspected members of al Qaeda.

On July 20, 2007, U.S. President George W. Bush signed an executive order banning torture during interrogation of terror suspects. While the guidelines for interrogation do not specifically ban waterboarding, the executive order refers the definition in 18 USC 2340, which includes "the threat of imminent death," as well as the U.S. Constitution's ban on cruel and unusual punishment. Reaction to the order was mixed, with the CIA satisfied that it "clearly defined" the agency's authorities, but Human Rights Watch saying that answers about what specific techniques had been banned lay in the classified companion document.

On September 14, 2007, ABC News reported that sometime in 2006 CIA Director Michael Hayden asked for and received permission from the Bush administration to ban the use of waterboarding in CIA interrogations. The source of information is current and former CIA officials. ABC reported that waterboarding had been authorized by a 2002 Presidential finding. On November 5, 2007, The Wall Street Journal reported that its "sources confirm ... that the CIA has only used this interrogation method against three terrorist detainees and not since 2003." John Kiriakou, a former CIA officer, is the first official within the U.S. government to openly admit to the use of waterboarding as an interrogation technique, as of December 10, 2007.

On February 6, 2008, the CIA director General Michael Hayden admitted that they had used waterboarding on three prisoners during 2002 and 2003, namely Khalid Shaikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri.

Khalid Sheikh Mohammed
Several accounts reported that Khalid Sheikh Mohammed was waterboarded while being interrogated by the CIA. According to the Bush administration, Khalid Sheikh Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Hambali, the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. According to the Bush administration, he also provided information on an Al Qaeda leader in England.

During a radio interview on October 24, 2006, with Scott Hennen of radio station WDAY, Vice President Dick Cheney seemed to agree with the use of waterboarding. The following are the questions and answers at issue, excerpted from the transcript of the interview: Hennen: "…And I've had people call and say, please, let the Vice President know that if it takes dunking a terrorist in water, we're all for it, if it saves American lives. Again, this debate seems a little silly given the threat we face, would you agree?"

Cheney: "I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation. Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that."

…

Hennen: "Would you agree a dunk in water is a no-brainer if it can save lives?"

Cheney: "Well, it's a no-brainer for me, but for a while there I was criticized as being the vice president for torture. We don't torture. That's not what we're involved in."

The administration later denied that Cheney had confirmed the use of waterboarding, saying that U.S. officials do not talk publicly about interrogation techniques because they are classified. White House Press Secretary Tony Snow said that Cheney was not referring to waterboarding, but only to a "dunk in the water", prompting one reporter to ask, "So dunk in the water means, what, we have a pool now at Guantanamo and they go swimming?" Tony Snow replied, "You doing stand-up?" On September 13, 2007 ABC News reported that a former intelligence officer stated that Khalid Sheikh Mohammed had been waterboarded in the presence of a female CIA supervisor.

Captured along with Khalid Sheikh Mohammed was a letter from bin Laden which led officials to think that he knew where the Al Qaeda founder was hiding.

According to sources familiar with a private interview of Khalid Sheikh Mohammed, he claimed to have been waterboarded five times. "A CIA official told ABC News that he had been water-boarded, and had won the admiration of his interrogators because it took him two to two-and-half minutes to start confessing – well beyond the average of 14 seconds observed in others." This is disputed by two former CIA officers who are reportedly friends with one of Khalid Sheikh Mohammed's interrogators. The officers called this 'bravado' and claimed that he was waterboarded only once. According to one of the officers, Khalid Sheikh Mohammed needed only to be shown the drowning equipment again before he "broke." "Waterboarding works," the former officer said. "Drowning is a baseline fear. So is falling. People dream about it. It’s human nature. Suffocation is a very scary thing. When you’re waterboarded, you’re inverted, so it exacerbates the fear. It’s not painful, but it scares the shit out of you." (The former officer was waterboarded himself in a training course.) Khalid Sheikh Mohammed, he claimed, "didn’t resist. He sang right away. He cracked real quick." He said, "A lot of them want to talk. Their egos are unimaginable. (He) was just a little doughboy. He couldn't stand toe to toe and fight it out." After being subjected to waterboarding, Khalid Sheikh Mohammed claimed involvement in thirty-one terrorist plots.

Abu Zubaida
There have also been reports that suspected terrorist Abu Zubaida was waterboarded while detained by the U.S. government. In 2002, U.S. intelligence located Zubaida by tracing his phone calls. He was captured March 28, 2002, in a safehouse located in a two story apartment in Faisalabad, Pakistan. While in U.S. custody, he was waterboarded, and consequently gave a great deal of information about the 9/11 attack plot, although the veracity of some of his statements has been called into question. Such information was used by the Canadian government in seeking to uphold the 'security certificate' of Mohamed Harkat. Participating in his interrogation were two American psychologists, James Elmer Mitchell and R. Scott Shumate.

In December 2007, the Washington Post reported that there were some discrepancies regarding reports about the amount of times Zubaida was waterboarded. According to a previous account by Former CIA officer John Kiriakou, Zubaida broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning. From the Washington Post article: "'But other former and current officials disagreed that Abu Zubaida's cooperation came quickly under harsh interrogation or that it was the result of a single waterboarding session. Instead, these officials said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months. The videotaping of Abu Zubaida in 2002 went on day and night throughout his interrogation, including waterboarding, and while he was sleeping in his cell, intelligence officials said ... The CIA has said it ceased waterboarding in 2003.'"

Classification
Today, waterboarding is considered to be torture by a wide range of authorities, including legal experts, politicians, war veterans, intelligence officials, military judges, and human rights organizations.

Arguments have been put forward by several legal experts that waterboarding might not be torture in all cases, or that they are uncertain. The U.S. State Department has recognized that other techniques that involve submersion of the head of the subject during interrogation would qualify as torture.

The United Nations' Report of the Committee Against Torture: Thirty-fifth Session of November 2006, stated that state parties should rescind any interrogation techniques, such as waterboarding, that constitutes torture or cruel, inhuman, or degrading treatment or punishment.

Controversy in the United States
The issue of whether waterboarding should be classified as a method of torture was not widely in debate in the United States before it was alleged that members of the CIA have used the technique against certain suspected detained terrorists. Since then, some commentators have argued that waterboarding as an interrogation method should not qualify as torture in certain circumstances, or they have refused to state whether they it should qualify without knowing the specific facts of a situation.

Andrew C. McCarthy, a licensed attorney and former U.S. federal prosecutor now serving as director of the Center for Law and Counterterrorism, states in an October 2007 op-ed in National Review that he believes that, when used "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law. McCarthy continues: "Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture, an ignominy the law, as we've seen, has been patently careful not to trivialize or conflate with lesser evils," though in the same article he admits that "waterboarding is close enough to torture that reasonable minds can differ".

Some American politicians have unequivocally stated that it is their belief that waterboarding is not torture. On the Glenn Beck show, Representative Ted Poe stated "I don't believe it's torture at all, I certainly don't." Beck agreed with him. The American conservative media commentator Jim Meyers has stated, in a December 2007 Newsmax.com opinion piece, that he does not believe that waterboarding should be so classified, because he does not believe it inflicts pain.

In a telephone poll of 1,024 American adults by the CNN/Opinion Research Corp. in early November 2007, 69 percent of respondents said that waterboarding was torture while 29 percent of respondants said it was not. In addition, 58 percent of those polled stated that they did not think that the U.S. government should be allowed to use this procedure against suspected terrorists as a method of interrogation.

As a political issue in confirmation hearings
The issue caused controversy during confirmation hearings over certain appointments to the Department of Justice. Judge Michael Mukasey was intended to be a consensus candidate to replace Alberto Gonzalez as Attorney General, but his confirmation briefly looked in doubt when he stated that waterboarding seemed "over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans" but that "hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical." As reported by the Washington Post, Mukasey also stated that he was "reluctant to offer opinions on interrogation techniques because he does not want to place U.S. officials 'in personal legal jeopardy' and is concerned that such remarks might 'provide our enemies with a window into the limits or contours of any interrogation program.'"

The issue came up again in the confirmation hearings of Federal District Judge Mark Filip for the position of deputy attorney general. Filip stated that he considered waterboarding to be "repugnant," and stated that with a grandfather in a POW camp in Germany, he considered the issue to be somewhat personal. That being said, he refused to state whether waterboarding was torture and stated instead that "the attorney general of the United States is presently reviewing that legal question" and that "I don't think I can or anyone who could be potentially considered for his deputy could get out in front of him on that question while it's under review."

As a political issue in 2008 presidential election
The issue also became controversial for candidates running for president in the 2008 election. Several political candidates (e.g., John McCain, Mike Huckabee , Joseph Biden , Chris Dodd , Barack Obama , Hillary Clinton ) have stated unequivocally that waterboarding is torture, while others have stated the opposite or refused to state any position.

For example, in response to a direct question on this issue, Rudolph Giuliani stated "I’m not sure [waterboarding] is [torture]. It depends on how it’s done. It depends on the circumstances. It depends on who does it. I think the way it’s been defined in the media, it shouldn’t be done. The way in which they have described it, particularly in the liberal media. So I would say, if that’s the description of it, then I can agree, that it shouldn’t be done. But I have to see what the real description of it is. Because I’ve learned something being in public life as long as I have. And I hate to shock anybody with this, but the newspapers don’t always describe it accurately."

Additionally, Tom Tancredo stated in a Republican debate the following: "[T]he question that I was originally asked that elicited the response that you’ve mentioned was, what do we do in the -- in the response to a nuclear -- or the fact that a nuclear device or some bombs have gone off in the United States; we know that there are -- we have captured people who have information that could lead us to the next one that’s going to go off; and it’s the big one? That was the question that I responded to. And I told you yes, I would do -- certainly waterboard -- I don’t believe that that is, quote, 'torture.' I would do what is necessary to protect this country. That is the ultimate responsibility of the president of the United States."

In the Republican YouTube debates, Andrew Jones, a college student from Seattle submitted a similar question. Candidate Mitt Romney stated "I oppose torture. I would not be in favor of torture in any way, shape or form." Prompted by the moderator, Romney added "as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use."

International
All nations that are signatory to the United Nations Convention Against Torture have agreed they are subject to the explicit prohibition on torture under any condition, and as such there exists no legal exception under this treaty. The treaty states "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Many signatories of this treaty have made specific declarations and reservations regarding the interpretation of the term. Additionally, signatories of the Universal Declaration of Human Rights are bound to Article 5, which states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." UN High Commissioner for Human Rights, Louise Arbour, stated on the subject: "I would have no problems with describing this practice as falling under the prohibition" and "Violators of the UN Convention against Torture should be prosecuted under the principle of universal jurisdiction."

Bent Sørensen, Senior Medical Consultant to the International Rehabilitation Council for Torture Victims and former member of the United Nations Committee against Torture says:

“It’s a clear-cut case: Waterboarding can without any reservation be labeled as torture. It fulfils all of the four central criteria that according to the United Nations Convention against Torture (UNCAT) defines an act of torture. First, when water is forced into your lungs in this fashion, in addition to the pain you are likely to experience an immediate and extreme fear of death. You may even suffer a heart attack from the stress or damage to the lungs and brain from inhalation of water and oxygen deprivation. In other words there is no doubt that waterboarding causes severe physical and/or mental suffering – one central element in the UNCAT’s definition of torture. In addition the CIA’s waterboarding clearly fulfills the three additional definition criteria stated in the Convention for a deed to be labelled torture, since it is 1) done intentionally, 2) for a specific purpose and 3) by a representative of a state – in this case the US.”

United States
The United States has a historical record of regarding waterboarding as a crime, and has prosecuted individuals for the use of the practice in the past. In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for violating the laws and customs of war during World War II after he carried out a form of waterboarding on a U.S. civilian, as well as "beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward." during World War II. Yukio Asano received a sentence of 15 years of hard labor for all of these acts.

In its 2005 Country Reports on Human Rights Practices, the U.S. Department of State formally recognized "submersion of the head in water" as torture in its examination of Tunisia's poor human rights record, and critics of waterboarding draw parallels between the two techniques, citing the similar usage of water on the subject.

Following the attacks of September 11, 2001, several memoranda were written analysing the legal position and possibilities in the treatment of prisoners. The memos, known today as the "torture memos," advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.

On September 6, 2006, the U.S. Department of Defense released a revised Army Field Manual entitled Human Intelligence Collector Operations that prohibits the use of waterboarding by U.S. military personnel. The department adopted the manual amid widespread criticism of U.S. handling of prisoners in the War on Terrorism, and prohibits other practices in addition to waterboarding. The revised manual applies only to U.S. military personnel, and as such does not apply to the practices of the CIA. Nevertheless Steven G. Bradbury, acting head of the US Department of Justice (DOJ) Office of Legal Counsel, on February 14, 2008 testified: There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law.

In addition, both under the War Crimes Act and international law, violators of the laws of war are criminally liable under the command responsibility, and they could still be prosecuted for war crimes. Commenting on the so-called "torture memoranda" Scott Horton pointed out "the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”" Mukasey's refusal to investigate and prosecute anyone that relied on these legal opinions led Jordan Paust to write an article for JURIST stating: "it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!"

Specific to the United Nations Convention Against Torture, the United States Supreme Court in Sosa v. Alvarez-Machain, said that the Universal Declaration of Human Rights "does not of its own force impose obligations as a matter of international law."

On February 22, 2008 Senator Sheldon Whitehouse made public that "the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies."