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.