Torture: "Reasonable People" Can Disagree

Marty Lederman

Not surprisingly, Attorney General Mukasey has proven George Orwell right: He refuses to say that waterboarding is unlawful -- sometimes it is; and sometimes . . . perhaps not. It all depends on the facts and circumstances. In a letter he issued last night, Mukasey wrote: "If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question." But of course the Attorney General refuses to specify under just what circumstances waterboarding might not be designed to result in severe physical suffering (in which case it is criminal torture), or under what conditions it would not be "cruel treatment" (in which case it is a breach of Common Article 3 of the Geneva Conventions).

Oh, and by the way -- those other "enhanced interrogation techniques" in the CIA program, the ones that (unlike waterboarding) continue to be authorized -- such as hypothermia, stress positions, threats, sleep and sensory deprivation, etc.? Well, they're all perfectly ok, according to Mukasey. But he won't explain why, or even say what they are. And, in a sentence that will come as sweet music to defendants who are hereafter accused of violating the torture statute, the War Crimes Act, the UCMJ, etc. -- and that will undoubtedly make prosecutors in the Criminal Division at DOJ cringe -- the Attorney General writes that "reasonable people can disagree, and have disagreed, about these matters." Of course, he also refuses to identify any of these so-called "reasonable" people who "can disagree" about something so basic, obvious, and previously uncontroverted.

The Senators at today's hearing will undoubtedly raise a fuss about these circumlocutions. But they will not get anywhere if they focus on waterboarding, as such -- a technique that apparently is being held in abeyance, until it isn't -- without addressing the underlying problems: They should insist that the Administration publicly defend the legality of those techniques that are approved for CIA use; make public the OLC opinions underlying the program; and repudiate the critical (and indefensible) OLC conclusion that physical suffering can be "severe," and thus torture, only if the suffering is "of some extended duration or persistence as well as intensity." They should ask the Attorney General straight up: "Under what circumstances, exactly, would waterboarding, or stress positions, or hypothermia, etc., not result in severe physical pain or suffering?"

Of course, the Attorney General will do none of those things, and will not answer such questions, because DOJ continues to insist that the law itself must remain secret, opaque: It would, Mukasey insists, "tip off adversaries" to define "the limits and contours of generally worded laws" that circumscribe U.S. interrogation policies. Unless and until the Senators firmly reject this dangerous and radical notion that the "limits and contours" of our criminal laws and treaty obligations must remain secret, or until a new Executive disclaims such a theory of "secret law," we will remain hopelessly stalemated on the torture issue. (For previous discussion of why Congress should reject the Administration's insistence that these legal questions remain secret, see here and here. ). It is not enough for Senators to disagree with the Attorney General on the question of waterboarding -- if they do not insist on a public accounting of what our law does and does not prohibit, their objections will be futile.
Posted 8:11 AM by Marty Lederman [link]