Balkinization: Mukasey Response on Waterboarding

Mukasey Response on Waterboarding

Marty Lederman

is here.

Short version: Trust me.

Slightly longer version:

Congratulations, Ben -- he followed your script.

Judge Mukasey won't opine on any technique that the CIA is not currently using (e.g., waterboarding).

He assumes the December 2004 OLC opinion is (and will continue to be?) the governing DOJ view on what constitutes torture. (As I've explained, that opinion intentionally misinterprets the term "severe physical suffering" so as to significantly and mistakenly limit the scope of prohibited torture.)

What "shocks the conscience" (and thus violates the McCain Amendment) depends on all the circumstances (including the reason for the government's conduct). (See Point #2, here.)

And when it comes to Common Article 3's prohibition on "cruel treatment," AG Mukasey apparently will consider only the definition of grave breaches of that treaty obligation found in the MCA (a definition that just so happens not to cover the CIA techniques). (For reasons I've explained here, the MCA definition of "cruel treatment" does not cover all of the conduct prohibited by the Common Article 3 prohibition. There is much (e.g., many fo the CIA techniques) that does violate CA3 but that is not a "grave breach" subject to criminal penalties under the MCA and WCA.)

Posted 6:36 PM by Marty Lederman [link]

Comments:

Prof. Lederman:

As I've posted before in a previous thread (7:29PM comment), the defining characteristic of what is or is not "torture" (or more accurately and to the point, what is or is not legally permitted) to the maladministration and to the enablers like Mukasey is whether they want to use it (which is to say, pretty much straight up and down the line, whether they think it "works"). They won't write out anything they think they 'need' to combat Islamo-Fascist Terra-ism and the coming Iranian nukes. If waterboarding didn't seem to "work", they'd probably be arguing about exactly how much pain it really causes when one's fingernails are pulled out. This is not the realm of 'discovered' (or analytical) law; this is the realm of expediency. Their tortured 'legal opinions' on the various controversies reflect the bending (some might say "breaking") of the law to an 'end', and they're saying (in the public and political venues) that we have to have these 'tools' and if you disagree, you're just "with the Terra-ists".

Once such is acknowledged, the 'legal' debate is at an end.

Cheers,

Cheers,

# posted by

Arne Langsetmo : 7:31 PM

The problem with Mukasey pronouncements is that they are not internally consistent.

He should have no problem deciding whether waterboarding as understood by everybody (Sen. Whitehouse definition for example) constitutes torture or not. It clearly does to any civilized person and he should have no problem concurring.

Instead he makes a dishonest excuse that he was not read in so he doesn't know what the government actually did and he is loath to cast aspersions based on just allegations.

That's BS, he will need reading in to see what form of "water assisted" interrogation was actually authorized by Gonzo and what CIA/DoD/FBI actually did in their interrogation rooms and thus to decide whether full time prosecution is required.

His being read in has nothing to do with being able to concur with senators that waterboarding as understood by them is torture.

His continuing unwillingness to do just that is unsettling.

# posted by

wg : 9:56 PM

The answer on Mukasey should be the one that Churchill gave to a person who asked why he was fired.

"Not up to the job."

I am sorry to say that about clearly a decent man, but his answer are just not good enough.

Best,
Ben

# posted by

Benjamin Davis : 10:25 PM

A second thought.

The point is that the advice on which people below relied is advice that was put in place to permit torture. That is a crime under our laws. Let us hear from those people below who relied on that advice and, in exchange for immunity, have them explain just what they were told to do. Then, let us look at the ones who told them what to do - the planners. And the ones above them who set the policy of torture. Those are the folks who sat in meetings trying to work out how to say things so that torture could happen. And those are the people who said "I want you to make sure I can do these things." Those are the high-level folks who are above the level of being able to argue any reasonable reliance. Those are the ones he is protecting and that is why he should not be in that role. Do not confirm him.

Best,
Ben

Mukasey's shirking is to protect the high level folks - not the grunts. Its the shirts in the fanciest shirts, not the grunts.

# posted by

Benjamin Davis : 10:33 PM

Please join us in protest.

This is the end of the line. When a nominee for Attorney General does not concede that waterboarding is illegal explicitly in order to protect waterboarders from criminal liability, there is nothing left but shame and mourning.

We call upon others to join us in our symbolic protest at www.stop-torture.org by posting a silent, drowning black.

# posted by

Harvard Anti-Torture Coalition (www.stop-torture.org) : 11:08 PM

Benjamin Davis:

The point is that the advice on which people below relied is advice that was put in place to permit torture. That is a crime under our laws. Let us hear from those people below who relied on that advice and, in exchange for immunity, have them explain just what they were told to do. Then, let us look at the ones who told them what to do - the planners. And the ones above them who set the policy of torture. Those are the folks who sat in meetings trying to work out how to say things so that torture could happen. And those are the people who said "I want you to make sure I can do these things." Those are the high-level folks who are above the level of being able to argue any reasonable reliance. Those are the ones he is protecting and that is why he should not be in that role. Do not confirm him.

Indeed. We seem to forget too soon. Remember that the Abu Ghriab stuff was dismissed as just the work of a few "bad apples" (and any investigation of who might have done what farther up the chain was snuffed ... pretty much by the same people that might have been the subject of such; certainly by military inquiries, not independent civilian ones).

All this work that was put in to carefully defining what could or couldn't be done ... can't believe that when the top brass thought about it, it got so totally screwed up at the bottom that what was approved bore no resemblance to what was done; with that much thought, precision, and control, surely the folks down below would get the message, eh?

Maybe time to find out who the real "bad apples" were.

Cheers,

# posted by

Arne Langsetmo : 11:42 PM

Fantasy is a necessary ingredient in living, it's a way of looking at life through the wrong end of a telescope.
Agen Judi Online Terpercaya

# posted by

Unknown : 5:23 PM