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On Mon, 11 May 2009 04:07:35 -0700 (PDT), william mosco <...@gmail.com
October 26, 2007 4:10 PM
Waterboarding and Torture
Jonathan Turley’s irresponsible attack on Judge Mukasey.
By Andrew C. McCarthy
"Jonathan Turley has penned an op-ed in the Los Angeles Times claiming
that Michael Mukasey, President Bush’s nominee to become the next
attorney general, should be disqualified for failing to condemn
waterboarding as torture. According to Turley, Judge Mukasey’s
confirmation-hearing testimony was evasive, and the nominee flatly
lied to the committee when he said he did not know what was involved
in the technique called “waterboarding.” The accusation about lying is
noxious and what passes for legal reasoning in Turley’s piece is
especially shameful for a George Washington University law professor.
To begin with, interrogation tactics used in top-secret Central
Intelligence Agency programs are classified. The fact that Professor
Turley, Judge Mukasey, I, or anyone else may know, as a general
matter, what waterboarding is does not mean we know how it has been
practiced (assuming it has been practiced) by the CIA. Just a brief
perusal of the available literature on the Internet demonstrates that
there are variations — and those are just the ones we know about.
Unlike solipsistic law professors, nominees for high public office are
not at liberty to bloviate while testifying under oath at a hearing,
especially when their words might have serious consequences for other
people. Interrogation tactics have been the subject of intense debate
and ambiguous congressional compromise over the last several years.
The truth, as any careful law professor should know, is that it is
difficult to say exactly what the law is. The people who make the law
have quite consciously seen to that.
One thing we do know, however, is that at risk are the careers and
potential legal jeopardy of American intelligence officers who have
relied on Justice Department opinions in conducting interrogations
since September 11, 2001. Judge Mukasey is just a nominee, not the
attorney general. As he has testified, he has not been read into the
classified details of either the interrogation program or the guidance
apparently issued by Justice’s Office of Legal Counsel in various
memos, most recently (according to a New York Times report) in 2005.
As someone of Turley’s sophistication should easily grasp, Mukasey is
not saying he doesn’t know what waterboarding is; he is saying he does
not know the details of the technique as allegedly used by American
interrogators under the guidance of OLC directives. Were he to review
the directives and be briefed on the details of the techniques, he
might well decide waterboarding runs afoul of American law. It would,
however, be the height of irresponsibility for an attorney-general
nominee to pronounce as “torture” something about which he is not
adequately informed under circumstances where, as Turley well knows,
such a pronouncement might be used to suggest war-crimes prosecutions
against American interrogators. It may well be that things have been
done which shouldn’t have been done. But such judgments should await
proof, not be based on speculation.
TORTURE AND THE CONSTITUTION
Judge Mukasey’s testimony should actually be heartening to human-
rights advocates. He has said he believes torture is forbidden under
the Constitution — specifically under the Fifth, Eighth, and
Fourteenth Amendments. There is no question that torture and lesser
forms of brutality are illegal; but the conceit that this prohibition
is of constitutional pedigree is debatable.
The Eighth Amendment to the Constitution prohibits cruel and unusual
punishments. One might think that means torture, in all instances, is
barred. Yet, as Harvard’s Professor Alan Dershowitz pointed out in his
excellent book, Why Terrorism Works, our jurisprudence limits the
Eighth Amendment’s application to punishments resulting from
convictions in the civilian criminal-justice system. As the Supreme
Court explained in Ingraham v. Wright (1977), “An examination of the
history of the Amendment and the decisions of this Court construing
the proscription against cruel and unusual punishment confirms that it
was designed to protect those convicted of crimes. We adhere to this
long-standing limitation.”
Similarly, the due-process guarantees of the Fifth and Fourteenth
Amendments have been construed, based on the Supreme Court’s 1952
ruling in Rochin v. California, to bar evidence-gathering methods that
“shock the conscience.” This fuzzy standard, however, has also been
limited to criminal prosecutions. Justice Frankfurter, moreover,
recognized that “hypothetical situations can be conjured up, shading
imperceptibly from the circumstances of this case and by gradations
producing practical differences despite seemingly logical extensions.”
To be less dense, this suggests that waterboarding a top al Qaeda
terrorist who has knowledge of an imminent weapons-of-mass-destruction
attack against an American city might be different from coercing a
suspect to submit to warrantless stomach-pumping just so we can use
the couple of pills he emits to try him for narcotics violations, as
happened in Rochin.
In any event, the Constitution has generally been held not to apply
outside the United States. To be sure, the Supreme Court will be
considering that proposition this term in a case involving enemy
combatants held at Guantanamo Bay. There is clearly a chance five
justices will decide otherwise. (The Court’s four solidly liberal
justices would surely favor extraterritorial application; and in the
1994 Verdugo-Urquidez case, Justice Kennedy suggested that the
question would turn on the right at issue and the circumstances.)
Still, even assuming for argument’s sake that the cited amendments bar
torture, it is anything but clear right now that the Constitution bars
torture by American operatives overseas.
TORTURE AND “CID” UNDER OTHER AMERICAN AND INTERNATIONAL LAW
Still, torture and other forms of cruel, inhuman, and degrading
treatment are prohibited under international law — in particular,
under several human-rights treaties ratified by the United States.
Under the supremacy clause, treaties are “the supreme Law of the
Land.” With that understanding, it might be said that the Constitution
speaks to torture. Nevertheless, had the unadorned Constitution
prohibited torture, these treaties, as well as various anti-torture
statutes enacted since 1994, would have been superfluous.
The Geneva Conventions prohibit torture but not in all circumstances.
Recognizing that, human-rights activists pushed for the International
Convention on Civil and Political Rights (ICCPR) and the U.N.
Convention Against Torture and Cruel, Inhuman and Degrading Treatments
(UNCAT), which were ratified by the U.S. in 1992 and 1994,
respectively. Both forbid torture, and the UNCAT called for the
passage of anti-torture legislation, which Congress promptly enacted.
Further, both the ICCPR and the UNCAT prohibit cruel, inhuman and
degrading treatment (CID). Here, however, there is an important
qualification. In consenting to both treaties, the Senate added a
caveat: CID was to be understood in the U.S. as the cruel, inhuman and
degrading treatment prohibited under the aforementioned Fifth, Eighth,
and Fourteenth Amendments. That is, CID would be controlled by
governing American constitutional law — not what activist NGOs,
international law professors, and foreign regimes decided terms like
“degrading treatment” might mean.
So what is torture? It really doesn’t matter what Turley or I think it
may mean in the abstract. We are governed by law, and torture has a
statutory definition. Section 2340 of the federal criminal code
defines it as a government act “specifically intended to inflict
severe physical or mental pain or suffering” (an exception is made for
the execution of capital sentences).
The law does not explain what severe means. Because of 2002 OLC
guidance (known infamously as the “torture memo”), much attention has
been given to this question. The memo certainly defined the term too
narrowly, suggesting that severe meant "equivalent in intensity to the
pain accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death." Nevertheless, even in
conceding that this definition was too demanding when it withdrew the
OLC memo in 2004, the Justice Department reaffirmed that the
designation torture is reserved for practices causing “intense,
lasting and heinous agony” (quoting a 2002 D.C. Circuit Court of
Appeals case) which are so abominable that they stand apart from other
condemnable forms of cruel, inhuman and degrading treatment.
With respect to mental pain or suffering, Section 2340 does tell us
that severe “means prolonged mental harm” (emphasis added). It also
provides examples of the type of prolonged behavior that is
prohibited: inflicting or threatening to inflict severe pain or
suffering; using or threatening to use mind-altering drugs;
threatening imminent death; or threatening that a third person (say, a
family member) of the victim will be subjected to equivalent
cruelties.
SO IS WATERBOARDING TORTURE?
Again, we do not know the details of waterboarding as practiced (if,
as reported, it is or has been practiced) by the CIA. Yet, we know
generally that waterboarding is very rough stuff. It is not especially
painful physically and causes no lasting bodily injury; yet, it is
intended to create the sensation of drowning in a person who is bound
and temporarily suffocated. Administered by someone who knows what he
is doing, there is presumably no actual threat of drowning or
suffocation; for the victim, though, there is clearly fear of imminent
death and he could pass out from the deprivation of oxygen.
The sensation is temporary, not prolonged. There shouldn’t be much
debate that subjecting someone to it repeatedly would cause the type
of mental anguish required for torture. But what about doing it once,
twice, or some number of instances that were not prolonged or
extensive?
Reasonable minds can and do differ on this. Personally, I don’t
believe it qualifies. It is not in the nature of the barbarous sadism
universally condemned as torture, an ignominy the law, as we’ve seen,
has been patently careful not to trivialize or conflate with lesser
evils. The Washington Post and Sen. Edward Kennedy have pointed to a
World War II era war crimes prosecution by the U.S. against a Japanese
soldier who used what was described as “water torture” on an American
civilian. But they’ve failed to note that this was far from the only
conduct at issue; the soldier was also charged with having engaged,
over a sustained period of time, in “beating using hands, fists, club;
kicking; … burning using cigarettes; strapping on a stretcher head
downward.” The case hardly stands for the proposition that isolated
instances of waterboarding would be torture.
Moreover, American military and intelligence services reportedly use
(or, at least, have used) waterboarding in their counter-interrogation
training programs. Congress carved no exception into torture law for
such exercises. Consequently, a conclusion that waterboarding is
torture would be tantamount to a finding that our own services are
committing a heinous felony, the equivalent of a war crime, against
our own operatives — something I believe it is fair to say Congress
cannot possibly have intended.
IS WATERBOARDING A VIOLATION OF THE McCAIN AMENDMENT?
One might think the question whether waterboarding is torture should
be academic. After all, cruel, inhuman and degrading treatment is also
unlawful. Given that waterboarding is close enough to torture that
reasonable minds can differ on whether it is torture, one would figure
waterboarding must, a fortiori, qualify as CID. I believe that is
certainly true the vast majority of the time. But the matter is not so
cut and dried that we can responsibly say it is true all of the time.
And the reason for this is that Congress, which has had countless
opportunities to make simulated drowning illegal, has declined to do
so.
In late 2005, after revelations about the “torture memo” and against
the backdrop of the Abu Ghraib prisoner abuse scandal, Congress
enacted the McCain Amendment as part of the Detainee Treatment Act
(DTA). That Amendment eviscerates any contention (based on the theory
that the Constitution does not have extra-territorial reach) that CID
prohibitions do not apply overseas. The McCain Amendment, however,
continued to define CID in accordance with the Fifth, Eighth and
Fourteenth Amendments. As a result, one can argue that it does not
undermine the contention that those protections apply only to civilian
legal proceedings, not to the detention and interrogation of alien
enemy combatants in wartime.
While this admittedly technical contention remains colorable, I doubt
it would or should prevail. Whatever one thinks of Senator McCain’s
amendment, it was indisputably a reaction to concerns over wartime
detentions. It would be bizarre to think Congress went through such an
exercise only to pass something that was irrelevant to the problem it
sought to address. Nonetheless, it is noteworthy that, although
waterboarding figured prominently in the McCain Amendment debate,
Congress opted not to end any ambiguity over its legality; instead, it
chose to stick with banning “cruel, inhuman and degrading treatment” —
simulated drowning was not specified.
The consequence of this impossible vagueness was to grind
interrogations to a halt. Indeed, some intelligence officers purchased
litigation insurance, fearful that actions they’d taken based on
Justice Department advice might nevertheless lead to investigations
and ruinous legal expenses.
Meanwhile, the Supreme Court decided the Hamdan case, holding that the
Geneva Conventions’ Common Article 3 — which the Court found to be
incorporated into a statute, the Uniform Code of Military Justice —
provided some protection for enemy combatants. The narrow issue in
Hamdan was military commissions, not interrogations. Common Article 3,
however, broadly prohibits not only irregular tribunals but also,
among other things, “violence to life and person,” “torture,” “cruel
treatment,” and “outrages upon personal dignity, in particular
humiliating and degrading treatment.” So, the question naturally
arose, did Common Article 3 now govern all detention and
interrogation? And if so, who gets to decide what its terms mean?
Would the United States be bound by, say, the International Court of
Justice’s construction of such vague terms as “outrages upon personal
dignity”?
Clarification was imperative for this confused landscape. Congress
endeavored to provide it in 2006 when it passed the Military
Commissions Act. The MCA made clear that issues of detention and
interrogation would be controlled not by Common Article 3 but by
American law: specifically, the McCain Amendment.
Furthermore, recognizing that our intelligence officers needed
guidelines more precise than the vaporous injunction to avoid “cruel,
inhuman and degrading” treatment, Congress amended the War Crimes Act
(Section 2441 of Title 18, U.S. Code) to specify which “grave
breaches” of international law could give rise to criminal
prosecution. The list is long but once again (and despite the specter
of waterboarding that hung over the debate) Congress elected to
include “torture” and “cruel or inhumane treatment,” but not simulated
drowning — or, in fact, degrading treatment, even though it, of
course, is illegal under the McCain amendment.
So is waterboarding illegal? It is ironic, and quite typical
Washington fare, that the same elected officials now demanding a
definitive answer from Judge Mukasey have failed to give us one
themselves — though some of them, unlike Mukasey, are aware of
classified details. Alas and alack, it is all too familiar that
chatterers who should know better, like Prof. Turley, are so quick to
caricature and demagogue a complex issue in order to call attention to
themselves.
It is perilous to launch when one doesn’t know key facts. Moreover,
given the stakes for our intelligence officers, Mukasey has been wise
to avoid doing so despite railing from the peanut gallery. But I’ll
hazard an opinion: Waterboarding should be considered illegal, under
the McCain Amendment, in almost all instances. Certainly, it would be
unlawful to make it a programmatic approach to interrogations; if
there is a sliver of legality at all, it must be reserved for good-
faith emergencies.
That line of reasoning would ban just about all waterboarding. Should
Mukasey be more categorical than that? Why shouldn’t he just go with
the flow and say, yes, by all means, waterboarding is always and
everywhere unlawful? Well, because it might not be true. The senators
on the Judiciary Committee were rather insistent that an attorney-
general nominee have the moxie to tell the president what the law is,
no matter what the president might want to hear. Does the same
principle not also hold true for United States senators?
On this issue, the Congress has not given us clear guidance. It has
instead given us the Fifth Amendment and told us to go figure out what
that means for ourselves. That is not very helpful.
For example, in its 2000 Dickerson decision, the Supreme Court held
that the core Fifth Amendment guarantee against coerced confessions
now includes Miranda protections. Do we thus owe alien enemy
combatants captured in wartime an immediate right to counsel, present
during all questioning, at the American people’s expense? Does anyone
really doubt there are federal judges — perhaps many of them — who
would reason that McCain Amendment bars all coercive interrogation
forbidden by the Fifth Amendment and, therefore, that it requires
Miranda warnings for enemy prisoners?
Let us assume, though, that the McCain Amendment’s incorporation of
the Fifth Amendment is directed at what is more commonly conceived of
as cruel, inhuman and degrading treatment. That means we are left to
ask: Does the particular use of any technique shock the conscience?
So here is the question: If we captured a top al Qaeda operative who
was certain to have information about what we reasonably believed was
an imminent plan to attack midtown Manhattan with a nuclear weapon,
would it shock your conscience if an intelligence officer waterboarded
that operative in a desperate attempt to thwart the attack and save
thousands of lives?
I’m glad Turley is so self-assured he can confidently say “yes.” I
can’t. I think it would be especially irresponsible for anyone to
express certainty without knowing the exact details of the tactic.
I do know this, though. I was in Kenya after over 200 people were
killed in a terrorist attack. I didn’t get to speak with the dead, of
course; only the maimed whose lives were utterly destroyed. I saw the
World Trade Center after it was bombed and after it was destroyed.
Like others, I watched televised images of victims leaping hundreds of
feet to their deaths because that unspeakable horror was preferable to
al Qaeda’s hellfire.
That looked like torture to me. I’m pretty sure we have a profound
obligation to stop that from happening again. And I can’t think of
anyone in America I would rather see trusted with that obligation than
Michael Mukasey.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow
at the Foundation for the Defense of Democracies.
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