Balkinization  

Wednesday, January 30, 2008

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.

Comments:

The Mukasey letter is not really difficult to divine. We have debated these very issues on this blog.

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."

Translation: The easy question: The GCs prohibit any coercive techniques against privileged captured enemy combatants. The close question: The GCs and US statutes prohibit torture against any capture. Is waterboarding torture as we define the act?

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."

It would, Mukasey insists, "tip off adversaries" to define "the limits and contours of generally worded laws" that circumscribe U.S. interrogation policies.


Translation: The current definition of "torture" is so generally worded that it does not have a single objective definition and is instead susceptible to multiple reasonable definitions. We here at DOJ ourselves have multiple opinions.

DOJ prosecutors should cringe at the thought of having to defend this law against vagueness challenges in an actual criminal prosecutions. It would be fun to defend those cases and have the DOJ prosecutor explain all the contradictory opinions in the department and then explain why my clients should not have relied upon the final opinions approving the CIA interrogation program.

In any case, look past the political Kabuki dance in Congress to what is really going on. If Congress wanted to outlaw waterboarding, all it has to do is amend the statute to expressly do so. However, they have tried to do so and failed. This indicates both that Congress agrees that the statute is vague and that Congress does not want to take the option of waterboarding terrorist leaders like KSM off the table. Your Dem senators and congressional reps are simply putting on a show for you. As Bill Shakespeare wrote: “It is a tale … full of sound and fury; signifying nothing.”
 

It confounds me that intelligent men, trained deeply in the ethics as well as the letter of the law in some of the most forward looking American law schools, can stomach the illegal hash that comes out of their mouths. What snaps off in their brains that allows them to wallow in, defend, advocate, and otherwise, promote such immorality? It’s as if they can take off their humanity as easily as I change shoes. Yoo, Bybee, Haynes, Gonzales, Mukasey… who are they? Monsters comes to mind.
 

What will be fascinating is to see what John McCain would do if he is elected President. Will he keep the present illusion in place or take actual action through an executive order to ban waterboarding.
 

If waterboarding and other enhanced techniques ("verschärfte Vernehmungen") are OK on federal level (when properly authorized) as we learn now from Mukasey, why only for foreigners? If these techniques are potentially so usefull and productive, why not used them in domestic law enforcement too?

That is why for example shouldn't the state of Texas legalize waterboarding, hypothermia, threats, stress positions, and severe sensory and sleep deprivation in its own interrogation rooms and prisons. Surely their law enforcement people would welcome new tools in their toolbox.

Imagine DePalma arms bound tightly behind his back, hanging from a hook in a meat freezer in some Texas hellhole, for 24 hours or more, rubberhosed occasionally to revive him while the Ride of Valkyrie blast triumphantly in the background. And continuing his uncooperativeness despite this and previous attempts - waterboarding that is - to induce it. And all that because a minor marital spat got majorly out of hand and his small town Texas wife accused him of rape and called the sheriff on him, who after finding his semen on his favorite local girl took the issue seriously.

Lovely prospect, I must admit.

---

Crude jokes aside, why not having "enhanced techniques" available in domestic law enforcement too?
 

wg:

Coerced testimony violates the 5th Amendment and cannot and should not be admitted as evidence of a confession in a criminal trial.

Foreign enemy combatants have no 5th Amendment right to silence while being interrogated for intelligence. Intelligence gathering is not about obtaining confessions. Rather, it is about locating and identifying other enemy combatants so they can be killed or captured.
 

OK, maybe not the best example. How about this:

Things really got out of hand with your wife with her telling local authorities now you stashed some fertilizer to blow up the local court or police station. The police finds traces of fertilizer on you, they see that you have your motive - the court ruled against you, and their shrink claims you display McVeight type of personality traits.

In other words we apparently have a ticking bomb situation here not a collection of evidence situation and you are not cooperating. Enhanced techniques, that is waterboarding, meat locker and rubber hose OK or not?

If not why not?

---

Re foreigners having no rights under the US constitution something needs to be done here one day.

Imagine what would happen if foreign countries decided to reciprocate - your kid goes to Italy as an exchange student, does something untoward, gets arrested and Italians refuse him legal rights they normally extend to their own citizens, disappearing him in some hellhole of theirs or shipping him off to Egypt for slightly more thorough interrogation. (Heck they could do it to those CIA agents they issued European arrest warrants for. Wouldn't that be something?

According to DePalma that would be OK, Italian constitutional rights do not apply to non-Italians ipso facto, the same way US constitutional rights do not apply to non-Americans.

Is this the kind of international order do we really want to have out there?
 

The use of info for trial issue is important and some discussion elides past it. In various cases, a different calculus is used, including in a civil context and gathering info that is not used in trial. This applies to Fourth Amendment limitations too, but a lesser standard in some cases is not the same thing as no limits.

The police cannot beat people for the fun of it, but it is not a coerced interrogation problem per se in many cases. All the same, there are constitutional limits to treatment in custody, even if the behavior is not used to coerce testimony.

This applies here. Let's say the police want to stop Timothy McVeigh II. They don't want to you know prosecute. They just need info from a compatriot to prevent the bombing of a federal building. Torture? Why not?

The fifth amendment after all is not a privilege and immunity of American citizenship alone. It applies to "persons," so we can't just say "well, Americans are different." Even people here illegal have some rights as persons, including if they will just be deported in a civil hearing.

Thus, the civil/criminal division simply doesn't solve everything, though it does affect the conversation in various ways.
 

Is waterboarding torture as we define the act?

That's NOT the question. Torture is prohibited by a TREATY (the Convention Against Torture-- which applies the same standard to everyone, INCLUDING unlawful enemy combatants). And under Article VI of the Constitution, that treaty constitutes US law whether or not "we" define torture more narrowly. Thus, the question is "is waterboarding illegal torture as defined in US statutes, and if not, is waterboarding illegal torture as defined by the US' obligations under international law".
 

-wg- said...

OK, maybe not the best example. How about this:

Things really got out of hand with your wife with her telling local authorities now you stashed some fertilizer to blow up the local court or police station.


If you have a true ticking bomb situation where you have solid evidence that the bomb exists and the identity of the bomber and there is no information where the bomb is so you can evacuate the targeted buildings, then you are left with a true "Dirty Harry" conundrum about whether to use force on the suspect to save lives at the risk of losing the case and being tried for assault and the like.

In that situation, I would put myself in legal jeopardy to save lives. Would you?

Re foreigners having no rights under the US constitution something needs to be done here one day.

Imagine what would happen if foreign countries decided to reciprocate - your kid goes to Italy as an exchange student, does something untoward, gets arrested and Italians refuse him legal rights they normally extend to their own citizens...


I have repeatedly said that I would have no problem if other countries applied our rules to our citizens.

If Italy has a preponderance of evidence that an American is a member of a terrorist group seeking the mass murder of Italian citizens, finds him to be an unlawful enemy combatant and then uses coercive techniques to make the American terrorist disclose the identities and locations of his fellow terrorists, more power to them. I would send a CIA team to assist the Italians.
 

DOJ prosecutors should cringe at the thought of having to defend this law against vagueness challenges in an actual criminal prosecutions. It would be fun to defend those cases and have the DOJ prosecutor explain all the contradictory opinions in the department and then explain why my clients should not have relied upon the final opinions approving the CIA interrogation program.

Yes, you often raise the question of the vagueness of the law and prosecution under it. What I find disturbing about this argument is that is seems to assume that fear of prosecution is the only thing that will (and presumably should) constrain the Administration, i.e., if we can legally get away with it we should do it.

I would prefer the Administration set its interrogations from a different assumption, the assumption of universal human rights, that apply to everyone, even terrorists. Thus in deciding whether to use a technique, the operative question should not be "can we escape prosecution for this," but "does it violate universal human rights."
 

Once again, I encourage those that want to rehash the stale "Bart" 'arguments' to do so on my thread on this at my blog.

Commenting there should be open to all.

I've taken the liberty of quoting "Bart"'s rewarmed nonsense, and responding to it, there.

Cheers,
 

... In that situation, I would put myself in legal jeopardy to save lives. Would you?

I would but only because I trust myself. Trust myself because I know I'm a decent, honest person who would very carefully judge all the facts available to me (or lack thereof) from both law enforcement and the potential torture candidate point of view.

However, knowing what I know about their present condition I would be extremely unwilling to place any trust with any law enforcement agency in this country federal or local, they harbor far too many primitive thugs or Stasi types for that. For the record I'm speaking from personal experience here.
 

I have repeatedly said that I would have no problem if other countries applied our rules to our citizens.

# posted by Bart DePalma : 2:28 PM


You are a lying scumbag. You're usually whining the loudest when others use the same tactics you advocate against us.
 

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