Balkinization: Under Dire Circumstances, It's Not "Torture" When You Torture

Under Dire Circumstances, It's Not "Torture" When You Torture

Brian Tamanaha

As Marty has detailed in multiple posts (including below), the Bush Administration has argued that water boarding is not "torture," and it has argued that water boarding is not "illegal" if a Justice Department official so opines.

In conjunction with those arguments, the Bush Administration also appears to suggest that whether water boarding constitutes "torture" depends not only on the water boarding itself but on the urgency of the situation. By this reasoning, a water boarding session under urgent circumstances is not "torture," while the same water boarding under less dire circumstances is "torture."

The Administration's position is described as follows:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said....

Waterboarding involves strapping a suspect down and pouring water over his cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world....

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said. Appopriate members of Congress would be notified in such a case, he said.

"The president will listen to the considered judgment of the professionals in the intelligence community and the judgment of the attorney general in terms of the legal consequences of employing a particular technique," he said. "The president will listen to his advisers and make a determination."

They do not explicitly say that torture isn't "torture" (that water boarding isn't "torture") when an attack is imminent, but that is the strong suggestion in their position.

If that is indeed the suggestion, it is obviously wrong. Torture is torture--pulling out nails is torture, cutting body parts is torture, water boarding is torture--regardless of the perceived need for engaging in the torture (and regardless of whether a JD official issues a memo saying that it is not "torture").

The correct position--the position that respects plain meaning, American ideals, and the law--is for the President to assert this:

"I indeed ordered interrogators to engage in 'torture,' which I acknowledge is illegal, but I deemed it absolutely necessary under the circumstances, and I am prepared to face the legal consequences of my decision."

Posted 9:00 AM by Brian Tamanaha [link]

Comments:

Brian: As I've tried to argue in several posts, and as Hayden's testimony demonstrates, their view is that it is *never* torture. Therefore, in their view, the legality of waterboarding turns *only* on satisfying the McCain Amendment "shocks the conscience" test and *maybe* on the CA3 prohibition on "cruel treatment." It's those tests (the first in particular) -- and not the definition of torture under section 2340A -- that depend on the circumstances, in the Administration's view.

# posted by

Marty Lederman : 9:54 AM

Marty,

I'm sure you are right, as you have carefully tracked their views.

The problem is that they have said many things (and "they" includes CIA, White House, JD).

I am calling attention to this suggestion in their statements (which I have seen before) because I think it must be responded to.

Thanks,

Brian

# posted by

Brian Tamanaha : 10:14 AM

Marty,

One additional point: my post assumes that water boarding is torture. I assume this because it is, and has always been seen as torture by everyone who has thought about the issue--that is, until the Bush Administration.

You are right that "they" are arguing that water boarding is not "torture." Many people (including you) have made powerful responses to this argument.

In this post I am simply asserting that it is torture, and going from there.

Brian

# posted by

Brian Tamanaha : 10:30 AM

Brian,

Did you say "plain meaning"? As if anyone in the GOP would bend their knee to...oh, wait, that is one of their rallying cries. Funny how rhetoric evaporates when it begins to serve the other side, or might land us in the pokey. (Funny too how it can fly to our lips once serviceable.)

Let's change the domain of discourse a bit; I feel constrained, as if fighting on someone else's terms. How about, "Since the GOP has finally embraced relativism, let's push for democracy and accountability too. Local statutes be hanged; millions of people around the world and throughout time agree waterboarding is evil and folks who use it should be punished. Let's get on with holding the miscreants accountable."

Always a pleasure to have your voice here.

# posted by

Robert Link : 10:41 AM

Prof. Tamanaha:

I commented on the "exigency" rationale for torture a long time ago (sorry for the repeated link, but better than long-winded repeats), and have repeatedly maintained here and elsewhere that the questions as to whether something must (or should) be done is an entirely different questions as to whether it should be legal.

But I need to point out that they also have made three other 'arguments' for the torture:

1). It's just a "few bad apples" (those tortured, not those doing the torturing). I address that here.

2). It depends on who is doing the torturing. This has been said more than once by maladministration shills; I document the maladministration's opinion on that here (see bottom of update 3).

3). It's not a crime if we stopped doing it. Documented here.

If any of these defences actually showed up in court before a judge (other than Dubya's cloned Federalists), they'd be laughed out just as fast as the U.S. v. Ulfer ones were.

Only problem is that AG Mukasey will not initiate any investigations, much less prosecutions, so no judge will ever hear a maladministration lawyer present these ideas in a formal court of law.

CWITMFN?

Cheers,

# posted by

Arne Langsetmo : 12:50 PM

Prof. Lederman:

Therefore, in their view, the legality of waterboarding turns *only* on satisfying the McCain Amendment "shocks the conscience" test and *maybe* on the CA3 prohibition on "cruel treatment." It's those tests (the first in particular) -- and not the definition of torture under section 2340A -- that depend on the circumstances, in the Administration's view.

So, the "shocks the conscience" test "depends on the circumstances". Such as who does it (see bottom of update 3). I guess if the 'right' people are doing it (such as in Tracy Lightcap's contribution here), it won't "shock their conscience". Good thing we've got a bunch of proto-Nazis running the show, their conscience is as hard as they come....

Cheers,

# posted by

Arne Langsetmo : 2:53 PM

Exigent circumstances is a political argument against actually enforcing the law rather than a legal justification.

DOJ would be better advised to stay with their legal argument.

# posted by

Bart DePalma : 3:55 PM

Exigent circumstances is a political argument against actually enforcing the law rather than a legal justification.

For once Bart is right. Further, the relevant legal authorities on Torture specifically provide that exigent circumstances claims are not cognizable.

# posted by

Dilan : 4:43 PM

Exigent circumstances is a political argument against actually enforcing the law rather than a legal justification.

Maybe true in this case, but "exigent circumstances" is a legal theory for avoiding what the plain law requires.

DOJ would be better advised to stay with their legal argument.

All they've put forth have been "political arguments" (see my comment above). As Prof. Lederman says, it's time to see their legal ones. I suspect they're as lame as the political ones.

Further "Bartesque" discussion is recommended as best pursued over on one of my posts (see above). "Bart", immune to good manners, will undoubtedly decline.

Cheers,

# posted by

Arne Langsetmo : 5:30 PM

There is no reason to suppose their arguments are anything but a deliberate fraud calculated for political spin. That's been their MO all along in the detainee cases, the pretexts for invading Iraq, Abu Graib, FISA, etc. The real premise is that the President has absolute powers; see John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, OLC (2001.09.25):

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

That is their only real argument, which would justify anything at all and reflects only their absolute contempt for the rule of law.

# posted by

Charles Gittings : 7:35 PM

@Charles,

Your argument certainly passes the famous "Occam's Razor" test. It's the simpler hypothesis.

# posted by

Robert Link : 10:06 AM

"I indeed ordered interrogators to engage in 'torture,' which I acknowledge is illegal, but I deemed it absolutely necessary under the circumstances, and I am prepared to face the legal consequences of my decision."

That is the corect answer.

# posted by

Sean Sirrine : 1:04 PM

There's a question I've had about waterboarding for a long time. If it's not torture, how does it work?

# posted by

-bwg : 10:46 PM

See: Why It Was Called 'Water Torture' By Richard E. Mezo, Sunday, February 10, 2008; Page B07, Washington Post. Mezo served in the Navy for six years and was subjected to waterboarding as part of his training. http://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020803156.html

# posted by

Dan Kowalski : 10:06 AM

The part of all this that seems fishy is how, earlier on, the Admin seemed determined to insist that all waterboarding occurred before the McCain Amendment was passed. Thus, the argument was, in effect, "it was legal before, so it's OK we did it, but now that it's clearly illegal, we have stopped."

The problem with this is that it doesn't fit with the more-recent arguments that the preznit could order more waterboarding if he so chooses. That pretty much kills the line of reasoning in my first paragraph.

Even more, that they are claiming the preznit could order more waterboarding suggests to me, at least, that they have been waterboarding people since the McCain Amendment passed.

That raises the following question for me: have there been any more OLC opinions since McCain passed?

Or is that a stupid question, since I'm not allowed to know about OLC opinions?

# posted by

JTM : 12:43 PM

I think the confusion as to what they are saying is due to deliberation conflation.

I agree that they are saying waterboarding is "never" torture. The problem with that, which they know, is that this is quite simply absurd and it would be completely unreasonable for anyone to rely on such a statement or position.

Pretty much all the commentary and criminal and civil caselaw that references waterboardig refers to it as torture (here's a draft of a summary piece by Evan Wallach http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf) and while some of those references are in casual usage as opposed to under application of a stated legal standard, the very clear, bright line, determination of both courts and the general (jury base) populace is that waterboarding is torture.

So, given that their statement of legal principle is so unreasonable that there can be no reasonable reliance on it, they look towards the one area of law where they may have been able to make a case for protection of the torturers and those who gave the orders to torture. The only area where they can craft anything that could reasonably be mounted as a defense is necessity and/or exigency as legal excuses.

There they hit several other snags, though. One of the most problematic was that the stated exigency, the stated necessity - was fear of a suspected, imminent nuclear bomb or dirty bomb attack on New York. And it was bogus.

Still, the bogus threat worked so well with the ticking time bomb rhetoric that they couldn't give upon the appeal of that rhetoric, especially with a tv series to thematically reinforce the rhetoric.

Other problems countered this preferred rhetoric as well. Some of the "harsh techniques" were used to obtain, not ticking time bomb information - however bogus - but also handy confessions (such as the Pearl murder confessions). Moreover, there appears to be a very real issue of whether or not Zubaydah was tortured to address the President's personal status concerns, not for the protection of the nation at all.

As described in Suskind's book, the seven veils of secrecy tended to get yanked from the Presidential g-strings pretty quickly IF Bush felt he could claim a victory. So when Zubaydah was captured, with a background of poor intelligence that indicated that Z might be very important because his name came up frequently on intercepts, Bush very quickly began announcing the capture as being of a very important figure in al-Qaeda.

When everything appeared to indicate that Z, as per Dan Coleman's (among others') description, was really not that important, Suskind indicates that Bush pretty much told Tenet to make Z important, to find something, to prop up the President's prestige by making him "right" in calling Z important.

A ticked off, embarassed President as a grounds for torture has less appeal than the ticking time bomb, but seems more rooted in the demonstrable.

Thus the outcome - conflate the better sounding rhetoric with the actual "never is torture" argument. This argument (that DOJ is saying waterboarding is never torture)is even harder to pin down because Mukasey won't produce the opinions and continues to dance around without simply and clearly stating on the record in his response to questions that in the opinion of the DOJ, waterboarding is NEVER torture.

And by the off the wall, almost incoherent, contributions of McConnell and Hayden, who ONLY care about the justification/political issue and making sure the department and its personnel and the President get GOOD PR for toture. "Making the President look better" and "getting confessions to crimes others have already been convicted of" seem poor reasons and "waterboarding is never torture" is also something they just don't want to sit there, in their uniforms, given the military history, and say.

So the conflation is mostly deliberate. And with all this focus on waterboarding - no one is asking questions about what lawyers also approved the "tactic" of burying alive and how it was halted, or what lawyers approved - and what agent carried out - the "non-torture" hypothermia *experiments* that did leave a detainee dead. ETC.

fwiw

# posted by

Mary : 8:20 PM