Friday, December 19, 2014

the more things change . . .

Marty Lederman

At this late date, this surely doesn’t warrant (or deserve) a detailed response, especially since the President has repudiated it and it no longer represents the view of the government.
But for those of you who didn’t follow Balkinization closely back in the last decade . . . no, there wasn’t much serious doubt that certain of the CIA interrogation techniques violated the law.  Waterboarding, in particular–the specific subject of Michael Mukasey’s column–violated the prohibition on “cruel treatment” in Common Article 3 of the Geneva Conventions* (which at the time was also a violation of the War Crimes Act), the federal assault statute, and, yes, the Torture Act.  At a minimum, waterboarding is designed to, and does, result in “severe physical suffering”–that’s the whole point of it, which is why it is a paradigmatic example of torture, understood as such for centuries by virtually everyone who has ever considered it.  (Mukasey does not even address the Torture Act’s prohibition on infliction of “severe physical suffering.”)  For much greater detail on this and related points about the CIA and the law, see my Balkinization posts herehereherehere, and here, and David Luban’s post here.  Better still, read David’s wonderful new book (chapters 7 and 8, in particular).
* The Bush Administration avoided this conclusion by adopting the view that Common Article 3 did not apply to the armed conflict with al Qaeda–an argument the Supreme Court rejected in Hamdan.  As I speculated the morning of the decision, and as the SSCI Report recounts, the Hamdan decision therefore brought the CIA interrogation program to an abrupt halt.

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