Waterboarding and Torture
Jonathan Turley's irresponsible attack on Judge Mukasey.


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.

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.

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.