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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
But what the Vice-President did not say, and what the Administration has refused to say, is whether the Administration considers waterboarding to be torture, or if not torture, then the cruel inhuman and degrading treatment that is equally prohibited by the McCain Amendment.
Administration spokesman Tony Snow has offered a mantra: The Administration doesn't torture, it doesn't violate the law-- whether U.S. or international law-- and it doesn't discuss specific interrogation techniques.
There are two reasons why the Administration doesn't want to discuss specific techniques. One is that it doesn't want terrorists training to withstand them, and another is that it wants them to think that the U.S. might do anything to them.
But these reasons are in some tension with the Administration's purported justification for the Military Commissions Act: to clarify what interrogators can do and cannot do legally. If the MCA clears things up for interrogators, why doesn't it clear things up for future detainees? And if certain things are out of bounds under the MCA (and the McCain Amendment), why can't detainees rely on the fact that the Administration won't break the law?
The Administration's logic leads inevitably to the conclusion that it wants to send the message to detainees that it *won't* abide by the Military Commissions Act that the Administration lobbied so hard for.
In fact, the Administration is probably not entirely serious about its refusal to discuss specific techniques. If reporters asked, they would readily find out that the Administration will state publicly that it won't cut off detainees' limbs with a chain saw or apply electric shocks to detainees' genitals. That is, I assume that the Administration would be wiling to state that: for if it won't, then it would really be in trouble.
But if the Administration is willing to say that it won't do some things, why it won't state that it doesn't waterboard?
And if the Administration insists that its techniques are fully legally under the MCA,the McCain Amendment (and Geneva Common Article 3, which is still law after the MCA), why won't it say whether it thinks that waterboarding complies with the law?
These are the sorts of questions that reporters should be asking if they want a bit more clarity about the meaning of "a dunk in the water."
Oh come now. What's wrong with treating a detainee with a little relaxing dunk in the water now and again? Maybe Dick's thinking of those booths at a carnival where you throw a ball at a target to dunk someone.
I suppose I shouldn't joke about what goes on during interrogations, but the VP apparently toys with the idea.
Children on Halloween do it. But the bully at the "Y" pool who dunks new young swimmers resembles more what Cheney has in mind. Vice presidency by armchair. I wonder what Ingrid Detter Francopan might think of the dignity of conduct of the vice-presidency in this administration; among numerous activities, she advises clerics in humanitarian international law in matters related to military strife.