Balkinization

How Can the Legality of Waterboarding Depend on the Circumstances?

Marty Lederman

Senator Biden just asked the Attorney General how it could be that the legality of waterboarding depends on the "circumstances," as Mukasey wrote in his letter. Mukasey's response was revealing: He pointed to the "shocks the conscience" test under the Due Process Clause and the McCain Amendment, under which, Mukasey argued, the "cruelty" of the technique must be weighed against the potential benefits. (For more on the "shocks conscience" test, see David L.'s post here, and part 2 of this post of mine.)

Senator Biden did not understand how such sliding-scale variables could affect whether the technique is torture or not. Mukasey began to respond that he was not talking about the torture statute. He plainly thought the only relevant question was the "shocks the conscience" test. But that more fact-specific test is only relevant if one has already concluded that the broader, and more unequivocal prohibition of the Torture Act is inapposite.

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not "cruel treatment" under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey's letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where "current law" would (and would not) prohibit waterboarding.

Mukasey apparently has concluded that OLC was correct that waterboarding is not torture because it does not entail physical suffering of "extended duration or persistence" (an untenable theory I discuss here).

Posted 11:13 AM by Marty Lederman [link]

Comments:

This is a reasonable conclusion. I suspected that this was Mukasey's position based on the answers he has given during his nomination approval process.

# posted by

Bart DePalma : 11:28 AM

So waterboarding doesn't even figure as simple assault, in Mukasey's eyes?

I hope Scott Horton has a bad case of nausea, after all his praise of Mukasey for AG.

# posted by

Anderson : 12:47 PM

Bart,

There's nothing reasonable about it: the position he's taking is fallacious and dishonest on it's face. All he's doing is reading from a script written by David Addington, and it's a transparent fraud.

# posted by

Charles Gittings : 1:09 PM

I invite any "Bartesque" commentary to continue over at my own blog entry on this subject. I will confine my own comments to that site.

Cheers,

# posted by

Arne Langsetmo : 1:33 PM

charles:

There's nothing reasonable about it: the position he's taking is fallacious and dishonest on it's face.

I am referring to the reasonableness of Marty's interpretation of the implications of Mukasey's testimony, not to the merits of Mukasey's implied position.

We have thoroughly explored the latter issue in previous threads on the subject.

# posted by

Bart DePalma : 1:47 PM

Is anyone else suddenly chilled by the thought that electrical shocks also do not "entail physical suffering of extended duration or persistence"?

# posted by

Narc : 1:58 PM

This argument is a nonstarter. The Convention Against Torture expressly prohibits a cost-benefit analysis for determining what is torture. And the US torture statute is an implementing statute and under longstanding US law must be construed consistently with the treaty it implements. The US torture statute, of course, contains a fixed definition and does not contain any cost-benefit language.

This is not a serious legal argument. Dishonest movement conservatives will repeat it because they need a talking point, but that is all this is.

# posted by

Dilan : 2:13 PM

Narc, that would be a good question to ask Mukasey, if he were answering questions instead of flapping his lips.

Dilan, the feds' argument of course is that waterboarding doesn't meet the definition under the Torture Act. We expressly reserved the right to redefine torture when we signed onto the Convention. (Which, right there, makes one wonder how long we've contemplated using some of these methods.)

# posted by

Anderson : 2:16 PM

Left this site to glance at the WaPo and found this:

Video footage being released today shows workers at a California slaughterhouse delivering repeated electric shocks to cows too sick or weak to stand on their own; * * * and even a veterinary version of waterboarding in which high-intensity water sprays are shot up animals' noses -- all violations of state and federal laws designed to prevent animal cruelty and to keep unhealthy animals, such as those with mad cow disease, out of the food supply.

Animals, 1; humans, 0.

# posted by

Anderson : 2:22 PM

dilan said...

This argument is a nonstarter. The Convention Against Torture expressly prohibits a cost-benefit analysis for determining what is torture. And the US torture statute is an implementing statute and under longstanding US law must be construed consistently with the treaty it implements. The US torture statute, of course, contains a fixed definition and does not contain any cost-benefit language.

Mukasey is assuming that waterboarding does not fall under the definition of torture, thus we do not get to the Torture treaty or statute. Rather, we are left with the McCain amendment applying the shocks the conscience test.

# posted by

Bart DePalma : 2:33 PM

anderson said...

Left this site to glance at the WaPo and found this:

Video footage being released today shows workers at a California slaughterhouse delivering repeated electric shocks to cows too sick or weak to stand on their own; * * * and even a veterinary version of waterboarding in which high-intensity water sprays are shot up animals' noses -- all violations of state and federal laws designed to prevent animal cruelty and to keep unhealthy animals, such as those with mad cow disease, out of the food supply.

Animals, 1; humans, 0.

The reported CIA method of waterboarding does not involve anything close to "high-intensity water sprays [] shot up animals' noses." Such an act would cause substantial physical injury and pain and falls under the torture statute. The CIA method of running water over cellophane does neither.

# posted by

Bart DePalma : 2:37 PM

Does it pay to parse Mukasey's, or any other Bush administration official's, statements about torture? No torturer or spokesperson for torturers is going to give the only possible honest answer, which is, "Yes, we torture, we know that torture is illegal, and we don't care, because we know that Congress isn't going to stop us."

# posted by

Henry : 2:42 PM

Bart: Such an act would cause substantial physical injury and pain and falls under the torture statute.

Whereas there is nothing "physical" about the absence of oxygen in one's lungs, or the ability to draw breath? "Injury" btw is not in the Torture Act.

How about Narc's question? Is an electric shock "physical"? Says who? What if it leaves no marks?

# posted by

Anderson : 3:00 PM

It is circular to say that waterboarding doesn't fall under the Torture Convention or the statute and therefore you look at the shocks the conscience test. We said in our reservations and understandings that anything that shocks the conscience under the Fifth Amendment CONSTITUTES torture. And according to the text of the Torture Convention which we agreed to, we must make that call WITHOUT using a cost-benefit analysis.

So, it is fine to look at whether it shocks the conscience as a guide to whether it is torture, but it is absolutely clear under the Torture Convention that the inquiry must be done WITHOUT performing a cost-benefit analysis.

# posted by

Dilan : 4:54 PM

Reminds me of Lon Fuller's King Rex (http://en.wikipedia.org/wiki/Lon_L._Fuller)

1. The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
Guantanamo
2. Failure to publicize or make known the rules of law.
Signing statements
3. Unclear or obscure legislation that is impossible to understand.
The torture memos
4. Retroactive legislation.
Retroactive Telcom immunity

I'm sure a more informed reader can pick it up from there.

# posted by

corialen : 6:26 PM

Mukasey has quickly revealed himself, by his words and deeds, to be no more than a craven Cheney-Bush sock puppet standing in for another of the same genus and species who preceded him. The last vestiges of our legal system appear to be sliding down a slimey drain.

Doc Rock

# posted by

Doc Rock : 1:16 PM