What Do the OLC Opinions Justifying Waterboarding Look Like?

Marty Lederman

Probably something like this.

The recent OLC Opinions, however, probably do not make a few mistakes that are found in McCarthy's article.

First, unlike McCarthy, the OLC opinions almost certainly deal directly with the most relevant part of the torture statute (18 USC 2340-2340A) -- the prohibition on conduct specifically intended to result in severe physical suffering. Indeed, that was precisely the portion of the 2004 Levin memo that was designed to exculpate waterboarding. As I've explained previously, that portion of the 2004 OLC opinion is flat-out wrong, and indefensible.

Second, the OLC opinions probably do not quote the 2002 D.C. Circuit case of Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92-93 (D.C. Cir. 2002), for McCarthy's proposition that the "designation 'torture' is reserved for practices causing 'intense, lasting and heinous agony.'" Instead, like the 2004 OLC opinion itself, more recent OLC opinions likely quote Price only for what it actually (and uncontroversially) says, namely, that "[t]he more intense, lasting, or heinous the agony, the more likely it is to be torture." Unlike the 2004 OLC memo, Price does not wrongly hold (as McCarthy suggests) that the agony must be "lasting" in order for the technique to constitute torture. Indeed, the relevant passage of Price goes on to quote the Senate Report on the Convention Against Torture as such: "The more intense, lasting, or heinous the agony, the more likely it is to be torture. See S. Exec. Rep. No. 101-30, at 15 ('The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.')"

"excruciating and agonizing physical . . . suffering." Gosh, that describes waterboarding to a "t," doesn't it? [Reminder to Judge Mukasey: This is an easy question. Indeed, there aren't very many legal questions of any importance that are so simple. All you have to do is ignore the DOJ lawyers who are advising you, and answer it as you would have done -- without much trouble or recrimination -- as a judge.]

Third, the OLC memos almost certainly do not state that "[t]he MCA made clear that issues of detention and interrogation would be controlled not by Common Article 3 but by American law: specifically, the McCain Amendment." The MCA makes clear that Common Article 3 continues to govern the conduct of U.S. officials, and to my knowledge no one in the Bush Administration has suggested otherwise (although there were unfortunate hints to the contrary in Mukasey's testimony). That said, the MCA does (wrongly) suggest that Common Article 3 is coterminous with the McCain Amendment -- and OLC has probably adopted that interpretation. If the McCain Amendment -- and the "shocks the conscience" test it incorporates -- were being fairly construed, then this would be a distinction without a difference, because there would not be much space between McCain and CA3. But since waterboarding apparently does not always shock Dick Cheney's, or Andrew McCarthy's, conscience, it's necessary to stress that CA3 prohibits all cruel treatment, without regard to the idiosyncratic consciences of our Vice President and his defenders. (See the discussion of "Myth No. 6," here.)
Posted 4:35 AM by Marty Lederman [link]