an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
No Need to Fret About Waterboarding: It's Merely a Psychological Ploy
OK, it's the Wall Street Journal editorial page, so one has to expect that nothing's beyond the pale. But still. Today's apologia for torture is a bit much.
The basic thrust of the editorial, not surprisingly, is that the techniques the Administration approved for the CIA (and at GTMO in late 2002), and the legal limbo constructed by the Justice Department and DoD (in which the President's constitutional authorities, and "necessity," justify violations of federal criminal laws, and in which degrading and humiliating treatment is lawful), did not "migrate" to Iraq and lead to abuses there -- indeed, the evidence apparently is "overwhelming" that there was no such seepage.
But that sort of blinking at reality is common by now -- as are the absurd accusations that the Administration's critics are arguing that all Al Qaeda detainees should be treated as POWs, and that we're "perverse[ly] conflat[ing] the amputations and electrocutions Saddam once inflicted at Abu Ghraib with . . . any authorized U.S. interrogation techniques." Those are classic straw-man arguments. (Just to clarify: We don't think that Al Qaeda terrorists are entitled to POW protection. And no, Dick Cheney is not as bad as Saddam Hussein -- or Stalin. Got it?)
What's more novel about this editorial, and more audacious, are two other things:
First, the editorial complains that the Vice President's proposed exemption to permit the CIA to use cruel, inhuman and degarding treatment is too narrow: It shouldn't make any difference, reasons the Journal, "which department is doing the interrogating," and military interrogators should have similar leeway Although I admire the WSJ's recognition that a detainee's fate should not depend on which U.S. agency is paying his interrogator's salary, the Journal apparently is not aware that many of the CIA's techniques -- namely, assaults, threats, and cruelty and maltreatment -- would be criminal (under the UCMJ and federal assault statute) if performed by the military. Oops.
Second, the editorial refers to the most extreme CIA-approved techniques -- expressly including waterboarding -- as "psychological techniques." Gotta give 'em credit: That's certainly one way to look at it. I suppose I was being unimaginative in thinking of mock burial, and of the "water cure," as assaults, and sadistic threats of excruciating death -- in truth, we've merely been trying to psych 'em out: We're jus' keeding!.
The worst part about all of this is the unwillingness of anyone at the WSJ, or in a lot of other places, to admit that the agents of the US government who torture and committ inhumane acts are just flat out wrong about the value of the detainees they are tormenting. The WSJ article even notes that none of the victims at Abu Ghraib were of any intelligence value
And then they blow this point off by saying that "tactics should be morally defensible based on who the detainee is."
And abuses that do happen they blame on the "night shift," when it was made clear in the Taguba Report that military interrogators and the CIA pushed for "physical and mental conditions for favorable interrogation of witnesses."
They aren't just making a terrible argument - they are lying to do it.
Get a load of the Wikipedia definition of "waterboarding" Lederman cites to refute the WSJ's assertion that it's a "psychological technique."
"Breathing is extremely difficult and the victim will be in imminent fear of death by asphyxiation."
"Imminent fear of death," not "fear of imminent death."
To me, this does sound like a "psychological technique" because what is "imminent" to the interrogatee is "fear" not "death."
Note, too, the definition goes on to say "However, it is relatively difficult to aspirate a large amount of water since the lungs are higher than the mouth, and the victim is unlikely to actually expire if this is done by skilled torturers."
Ironically, Lederman's post seems to make the WSJ's point, not refute it!
How, then, would you describe those who oppose the death penalty by arguing that "life in prison without parole" is worse and more fitting punishment than execution? Are they torturers? What's the answer: execution or let the killer go free?
This is the problem with making the "torture" issue a nebulous debte about one's own absolute moral superiority of motive, rather than an objective policy definition of rules of conduct, to whom they should apply and under what circumstances.
As rhetorical strategies go, picking apart the grammatical construction of a sentence in Wikipedia is barely worthy of high-school debate team. Such semantic games suggest an amazing lack of interest in human reality. If someone were causing you to choke on water, do you really think you'd be experiencing "imminent fear" - or just plain "fear"? And did it ever occur to you that when your breathing is being made extremely difficult, and water is going into your lungs - even in non-fatal amounts - it is extremely physically uncomfortable? If someone strangled you with their hands or a piece of rope, or pushed your head underwater repeatedly until you breathed water, I can't believe you would deny you were physically assaulted, just because you didn't actually die. In fact, you'd probably be more likely to describe an experience as "torture" if it were designed to be non-fatal so it could be stretched out indefinitely.
I've had asthma since I was a kid, and I'd more gladly let someone punch me in the face a few dozen times than suffer serious shortness of breath for any length of time.
The frequent repetition in the media of the phrase "made to believe he is drowning", even if it originated in ordinary journalistic verbal timidity rather than propaganda, is a gift to the pro-torture faction; it gives the false impression that this is all about clever psychological games and not physical abuse.
Hmm. I guess I'd discribe them as dishonest advocates of capital punishment. I don't really see a problem there, and I don't believe in capital punishment.
That's an issue I've had to wrestle with some the last four years working on my project: 18 USC 2441 carries the death penalty when an offense results in the death of the victim, and the statute says "shall be subject to death" not "may be".