Balkinization: Not So Fast There, Ana

Not So Fast There, Ana

Marty Lederman

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

"In [the Bradbury statement], the DOJ, for the first time and in direct contradiction of Lederman's conjecture, declares waterboarding illegal under current law. . . . Bradbury's statement shows, at the very least, that Lederman was incorrect about how the administration would read the law as applied to waterboarding."

Ana, you really ought to read these things before you rely on them. [UPDATE: Perhaps "shill" was too intemperate. I just found it odd that Ana Marie Cox would take the McCain campaign's word for what a document said, and would defend McCain against my criticisms so vociferously, without actually checking the document itself.] The Bradbury statement most certainly does not declare waterboarding illegal under current law. What it very carefully says, instead, is that "[t]here has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

So, contrary to the propaganda that the McCain folks are feeding Cox, DOJ has not determined that waterboarding is unlawful "under current law." Indeed, in today's testimony, Rep. Scott asked Bradbury flat out (video at approx. 1:04:30): "Has there been a determination that it is unlawful under current law.?" Bradbury's answer: "No, sir."

OK, but if DOJ has not determined that the technique is lawful or unlawful under current law, what has it -- what has Bradbury -- determined?

First, OLC has concluded that waterboarding, at least as practiced by the CIA, which isn't quite as barbaric as the Spanish Inquisition, is not torture under the federal torture act. Bradbury's testimony today -- in which he tried to distinguish CIA waterboarding from the torture variation practiced by the Japanese, the Spanish, etc. -- confirms this. More importantly, the 2004 Levin memo (disingenuously) construed the torture statute prohibition on infliction of severe physical suffering so that it would not cover waterboarding. And Bradbury's statement today expressly reaffirms OLC's adherence to that flawed 2004 interpretation of the torture act.

Second, according to the New York Times, in February 2005, DOJ issued another opinion, "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency," which allowed the CIA to "barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." That opinion was signed by Steve Bradbury. Later in 2005, DOJ realized that the McCain Amendment would become law, prohibiting conduct that shocks the conscience, and issued "another secret opinion, . . . declar[ing] that none of the C.I.A. interrogation methods violated that standard. . . . In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo."

Thus, Bradbury has concluded that the CIA's waterboarding is not torture, and does not shock the conscience in violation of the McCain Amendment. So what, exactly, is he saying when he writes that DOJ hasn't decided that waterboarding "would be lawful under current law"? He means only that he has not yet had occasion to determine whether the CIA waterboarding violates the third of the three principal legal limitations -- the Common Article 3 prohibition on "cruel treatment," a limitation that DOJ accepted only when the Supreme Court forced its hand in the summer of 2006 in the Hamdan decision. Under the President's preposterous executive order construing Common Article 3, it's likely Bradbury would conclude that restriction not prevent waterboarding, either. He s imply hasn't had a chance to do so yet. [UPDATE: In his full testimony, Bradbury states at a couple of points that what remains uncertain is whether the techniques are lawful under the criminal implementation of Common Article 3 included in the 2006, post-Hamdan Military Commissions Act.]

Ana, I may very well be wrong about some of this -- Who can know until all the opinions are released? But everything about today's Bradbury testimony, written and oral, only serves to bolster my assumptions about OLC's views on waterboarding. Don't believe the hype: In light of his role as the Republican candidate, McCain had it within his power to once and for all end the shameful practice of CIA waterboarding -- and its other unlawful techniques. He chose not to do so.

Posted 5:14 PM by Marty Lederman [link]

Comments:

You're right on target here, and Ana Maria Cox needs to bea bit more careful before she posts. Waterboarding is illegal right now for one reason only: it's not incorporated into the Program. If Dubya decides to do that tomorrow, it won't be illegal anymore, per Bradbury. Though isn't it curious that Mukasey suggests out on his Iraq roadtrip that Bush may get to do the waterboarding himself if he approves it. . .

# posted by

Scott Horton : 6:33 PM

Is there any distinction between an OLC opinion which interprets law and one which interprets facts? It seems to me that 'shocks the conscience' is a fact based determination, which doesn't provide immunity unless the trier of fact determines that the conduct does or doesn't shock the conscience.

# posted by

rmadilo : 7:00 PM

The waterboarding debate is an attempt by the Bush administration to get us to ignore the multiple other means of widespread torture in which it engages. The following is from Nicholas Kristof's column today, referring to an innocent cameraman who has been held at Guantanamo for six years: "After Mr. Hajj was arrested in Afghanistan in December 2001, he was beaten, starved, frozen and subjected to anal searches in public to humiliate him, his lawyers say." To get sucked into the waterboarding debate is to give credence to the war criminals whom Congress continues to allow to run this country.

# posted by

Henry : 10:26 PM

Bradbury's position as Marty clarifies it is just Michael Mukasey's. He told Congress waterboarding is still available.

As a renunciation, this is about as cynical as a pension trust publicly announcing its divestiture of the stock of a corporate wrongdoer, driving the price down, and then scooping up the company's options on the cheap.

Sadly, even the segment of the public that sees what is being left open is invited to imagine that torture hurts our renegade executive branch more than its victims, that the crew at the on/off switch will waterboard again only if it hears a ticking time bomb through cupped ears. This barely imaginable rationale is unsupported by anything the administration has put forth to date and confuted by reams of interrogation experience. The truer indication of the administration's confidence about tortured confessions is its "do over" for its upcoming show trial of the 9/11 suspects.

Scott Horton said yesterday in No Comment that Mr. Bradbury is a "probable target for criminal proceedings in the not too distant future, and a growing number of foreign prosecutors who track human rights matters are busy now preparing their dossiers with the names of U.S. Justice Department officials deemed appropriate for apprehension and prosecution in the not too distant future."

That would be fine with me. It's far from my first preference. Justice is best when it's homegrown, and I have a certain pride in the matter. But a nation can hold itself out as the world's last best hope only so long as it does not dash hopes, and we've long since disqualified ourselves.

# posted by

Occasional Observer : 12:11 AM

Agreed that Ana appears to have made a significant overstatement with regard to the administration's position. Not sure that this makes her a "shill."

You say "In light of his role as the Republican candidate, McCain had it within his power to once and for all end the shameful practice of CIA waterboarding -- and its other unlawful techniques."
For this statement to be correct, one would have to believe that McCain's voting against the bill would prevent Bush from vetoing it or would convince sufficient numbers of Republicans to override the veto. Either conclusion appears, at best, to be problematic and unsubstantiated.

As a practical matter, it seems extremely unlikely that the Bush administration will engage in waterboarding again. If circumstances were to occur that made it feel that it had to do so (eg, a ticking time bomb scenario), it seems equally unlikely that this law would stop it.

For these reasons you have also made a significant overstatement. Should we assume that you are also a "shill"?

# posted by

mls : 8:03 AM

MLS,

I can't say whether "shill" is being overused, not knowing what Ana Maria Cox generally says. Marty may have invoked a hortatory sense, which Scott Horton's comment expresses, but I feel safer making two other points:

1) It's not only rhetorically fair but right to treat each legislator's vote as though it were a tie-breaker. This is particularly so where matters of principle are at stake. This way of talking brushes aside all sorts of lame excuses for "safe" votes that serve the aims of professional politicians but make a mockery of the legislative will, which is now trying to find its way back from an abyss into which the executive threw it, regarding torture and myriad other issues. The rhetoric has further point when the vote in question was cast by a presumptive candidate for the presidency since the voter claims the right to be "the decider" and might well rally others in his party to his position.

2) Your prediction that waterboarding is out may be correct, but if so it is only because of the risk of disclosure and the singular ability of the technique to stir opposition. But it apparently will not depend on whether a time bomb ticks since nothing suggests it ever did. There never was a ticking time bomb as best we can tell, and if there was, any information obtained from "high value" detainees was, or could easily and more reliably have been, extracted without the use of torture.

# posted by

Occasional Observer : 10:21 AM

Let me just add to oo's post by noting that McCain is not just casting a single vote. He is the presumptive Republican nominee. He has personal moral authority on this issue. If he made a big deal out of it, it would be politically impossible for the other Republicans in Congress to go along with the Administration.

# posted by

Mark Field : 11:27 AM

"It's not only rhetorically fair but right to treat each legislator's vote as though it were a tie-breaker."

Would you apply that logic to Senators Clinton and Obama, neither of whom bothered to vote on the bill?

# posted by

mls : 1:01 PM

Absolutely!

# posted by

Occasional Observer : 2:16 PM

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# posted by

Unknown : 2:54 PM