E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The interim Constitution of Iraq has played surprisingly little role in public debates involving the Department of Justice, the United States, and torture. The infamous and reckless Bybee memorandum, by the Office of Legal Counsel, ventured two key conclusions. The first, and more plausible, is that American officials have the legal authority to engage in “cruel, inhuman, or degrading” treatment of prisoners, if that treatment falls short of torture. The second, and far less plausible, is that as Commander-in-Chief, the President might well have the authority to torture suspected terrorists, and that Congress might well lack the constitutional power to infringe on the President’s authority to engage in torture.
Let's compare the interim Constitution of Iraq. As for the second issue, that document is unambiguous: Article 15(j) announces, flatly, that “torture in all its forms, physical or mental, shall be prohibited under all circumstances.” (The last three words are of course the crucial ones.) But Iraq's interim Constitution goes much further. While OLC says that "cruel, inhuman, or degrading" acts are permissible, Article 15(j) of the Constitution of Iraq imposes an absolute ban on “cruel, inhuman, or degrading treatment,” even if that treatment falls short of torture. The most ironic point is that the OLC uses the same words ("cruel, inhuman, or degrading") as the Constitution of Iraq, with OLC approving the very treament that the Iraqi Constitution bans.