Is waterboarding a violation of United States international obligations?

As a personal matter, I don't really care what the US does to the likes of Khalid Sheikh Mahommed or other high-level Al Qaeda detainees. However, it is an interesting intellectual exercise to look at the question of whether waterboarding is a violation of US international obligations or not.

The United States is a signatory to the Convention against Torture. Among other things, this treaty commits signatories not to torture people in their custody. It defines torture as follows:

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.



According to that definition, it appears that waterboarding a detainee (who does not know that they are not being drowned) is torture, as it is severe mental suffering.



However, the when signing the treaty, several countries, including the United States, made certain reservations. And in its reservations, the United States says:



. . . in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm . . . . (emphasis added)



Allegedly, the US has never waterboarded anyone for a long time. It "broke" Khalid Sheikh Mahommed within a couple of minutes. If this is true (and I have no reason to doubt it), the US is in compliance with its commitments under the Convention against Torture.



Torture is also banned under the Geneva Conventions. However, they make no effort to define the term. So it is unclear whether waterboarding is banned under the Geneva Conventions or not.

Judges are typically very reluctant to find that someone has violated something (a law, treaty, or contract, for example) when it is not clear that they have done so. Since the Geneva Conventions do not define the word "torture", it is likely that a court, if one were to consider the question, would say that grey-area techniques such as waterboarding are not in violation of the Conventions. This is particularly true for a US court, since the US made clear in its signing statement to the Convention against Torture that for purposes of that document, it does not consider waterboarding to be torture.