Why Can't the Attorney General Simply Concede that Waterboarding is Torture?

Marty Lederman

Back during his confirmation hearings, I suggested that Michael Mukasey could and should address Senators' concerns about waterboarding by simply stating that it is unlawful torture (and cruel treatment), but that no CIA officials will be prosecuted for having followed contrary legal conclusions issued by OLC. Of course, he did not take that route; instead, he told Senators that he would review the relevant legal memoranda, and then prohibit any conduct that he concluded would be unlawful.

In a letter to the Attorney General this week, all ten Democrats on the Senate Judiciary Committee informed Mukasey that, since he has now had enough time to review the pertinent materials, and since the Director of Central Intelligence, Michael McConnell, has now stated that waterboarding would be torture if inflicited upon him, this question would be a primary topic of an oversight hearing to be held next Wednesday.

Mukasey, however, is now hinting that he may not answer the question.

Why not? Especially if, as reported, the CIA no longer uses the technique, what would be so difficult about Mukasey stating that it is, indeed, torture, but that no one will be prosecuted for reasonably relying on OLC legal analysis to the contrary?

At a panel convened on the Hill yesterday by the American Constitution Society, Scott Shane of the New York Times asked that very question. I ventured a two-part response, basically as follows:

1. Mukasey would probably have no problem telling the Senators that waterboarding is unlawful, except that in order to reach such a legal conclusion, he would almost certainly have to repudiate the legal rationale underlying OLC's contrary opinion -- and such a repudiation would undermine the legal basis for other of the "enhanced" CIA interrogation techniques, something Mukasey presumably does not want to do. For example, any analysis concluding that waterboarding is "cruel treatment" under Common Article 3 of the Geneva Convention would likely point to a similar conclusion with respect to other of the "enhanced" techniques. More importantly, in order to conclude that waterboarding is torture -- something that was clear the world over before this year and that was the U.S. understanding for more than a century -- Mukasey would almost certainly have to reject OLC's analysis that the infliction of physical suffering can be "severe," and thus torture, only if the suffering is "of some extended duration or persistence as well as intensity." That rationale -- which I have argued is dead wrong -- might well be the critical legal underpinning of other CIA techniques, as well. Thus, any Mukasey repudiations concerning waterboarding could well have ramifications for other parts of the secret CIA interrogation program. (This is admittedly just a guess: Techniques such as stress positions and hypothermia do result in physical suffering that is not only severe, but prolonged, as well; and so it is not clear how OLC might have reasoned that such techniques are not torture.)

All of which is to say (to, e.g., the Senate Judiciary Committee), that as a practical matter, the important question going forward is not whether waterboarding is torture (it is; and in any event, the CIA reportedly has now abandoned it). Instead, Mukasey should be asked:

-- whether hypothermia, threats, stress positions, and severe sensory and sleep deprivation are torture or cruel treatment; and

-- whether he agrees with OLC that, for purposes of the Torture Act, physical suffering cannot be "severe" unless it is of "extended duration or persistence."

2. Second, if Mukasey were to declare that waterboarding is torture, such a conclusion would, in effect, be a conspicuous public repudiation of the legal analysis confirmed by Stephen Bradbury, who the President has just re-nominated to be Assistant Attorney General for the Office of Legal Counsel. And that's something Mukasey does not want to do, because apparently he is four-square behind the nomination: According to the New York Times, "Steve Bradbury is one of the finest lawyers I’ve ever met," Mr. Mukasey said when asked if he supported the White House move. "I want to continue working with him."
Posted 7:59 AM by Marty Lederman [link]