Sorry, Ben, But Judge Mukasey Can (and Should) Answer the Question

Marty Lederman

Over in the New Republic, Ben Wittes agrees that it's virtually inconceivable that waterboarding is not torture, but nevertheless argues that Judge Mukasey would be within his rights in refusing to say so in response to Senate questions:

It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

I don't mean to sound ungrateful -- Ben has some awfully kind, no doubt unwarranted, things to say about me in his column -- but I think Ben is mistaken here.

Ben's argument, in essence, is that Mukasey cannot responsibly repudiate OLC legal advice that he has not seen. I think that's mistaken, for several reasons.

First, as I've explained previously, there's no real risk of criminal exposure for the CIA personnel who waterboarded based on OLC's advice. Second, the analysis should not be classified in the first instance -- as I've argued several times previously here, there's no real justification for keeping secret our government's official legal advice about whether waterboarding is lawful or not. But third, and be that as it may, there's nothing stopping DOJ from showing Judge Mukasey the OLC opinions now. Nothing. (Presumably he has the requisite security clearances from his work on terrorism trials -- or could obtain such clearances ASAP.)

Fourth, the basic core of the OLC advice about waterboarding is already public. It can be found right here, in the final paragraph of section II(2) of a public OLC opinion, a paragraph that was obviously written with waterboarding specifically in mind, and one that is manifestly and egregiously wrong as a matter of law on the term in the torture statute most pertinent for these purposes: "severe physical suffering." I've already written at length on this point. I'll reprint my analysis below. (In retrospect, my rhetoric there was a bit overheated -- but forgive me, I was outraged.) The bottom line is that the OLC legal analysis in support of waterboarding is indefensible -- I think Ben would agree -- and Judge Mukasey should simply say so.

Which brings me to the final and most important reason why Judge Mukasey can answer the question -- even if DOJ does not provide him with the classified OLC memos. There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment. After all, as H.L.A. Hart stressed, even legal rules that appear straightforward contain seeds of ambiguity, and raise difficult questions of application. Does a "No Vehicles in the Park" law prohibit a baby stroller? A statute of a tank? Roller skates? Bicycles? A wheelchair? An ambulance? (See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958); Lon Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 537 (1994); Pierre Schlag, No Vehicles in the Park, 23 Seattle U. L. Rev. 381 (1999).)

Therefore, some interpretive principles are invariably necessary, and there will be close cases. That's true even of the Torture Act and Common Article 3's ban on "cruel treatment and torture."

But if, in parsing the "no vehicles" rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that's a pretty good clue that you need to find yourself some new interpretive principles. So, too, if one's interpretative principles and legal analysis of the terms "torture" or "cruel treatment" lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis. Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise. Naturally, then, the U.S. itself has long considered waterboarding to be torture and a war crime -- there was no dispute about this from at least 1901 until 2002 -- and if our enemies used such a technique on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of unlawful torture.

Waterboarding is the souped-up Corvette of the torture ban. And it would simply degrade public discourse, and the ordinary use of language, if Judge Mukasey were to continue to claim that whether waterboarding is torture is a difficult question that can't be answered unless and until he reviews the underlying OLC memos.


My previous explanation of why waterboarding is torture and how OLC concluded otherwise:

[W]aterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

But I think I've figured out what OLC's "reasoning" was. The key is found in the replacement torture memo, the one issued in December 2004 to supersede the notorious August 2002 torture memo.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

Posted 3:01 PM by Marty Lederman [link]