Stuart Taylor on waterboarding and torture

At bottom, I agree with Stuart Taylor at the National Journal on the issue of waterboarding. Article is up for the moment at the National Journal, here, but it will disappear at some point. Excerpt, from National Journal, Monday, November 5, 2007, Opening Argument, "Mukasey and the Slippery Pols":

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It is especially telling that the main congressional objection to Mukasey has been his unwillingness to declare illegal an interrogation technique that Congress itself has assiduously and repeatedly declined to declare illegal.

The technique, called "waterboarding," involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress's penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

Some factual context:

Our government has not used waterboarding since 2005, according to news reports, and seems unlikely to use it again soon, if ever.

Before suspending the practice in 2005, the CIA reportedly waterboarded three (and perhaps only three) people, all of them Qaeda terrorists deemed highly likely to have potentially lifesaving information.

The Bush Justice Department has repeatedly found at least some forms of waterboarding to be legal under the narrow but vague 1994 and 2005 laws defining, respectively, the crime of "torture," and "cruel, inhuman, or degrading" treatment.

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But, one might reasonably ask, isn't torture by CIA interrogators already a crime? And isn't waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one's face and enough water running over one's nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on "torture," or in the December 2005 McCain amendment's ban on "cruel, inhuman, or degrading treatment or punishment."

The 1994 law defines torture as including only practices "specifically intended" to inflict "severe physical ... pain or suffering" and certain other practices that cause "prolonged mental harm" (emphasis added). Under this definition, deliberately inflicting pain that is not quite "severe," or mental harm that is not quite "prolonged," is no crime.

To be sure, the 1994 definition is not so narrow as to justify the claim that only the pain associated with "death, organ failure, or serious impairment of body functions" would qualify as "severe," as the Bush Justice Department asserted in an infamous, now-repudiated August 1, 2002, memo. But the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds. Indeed, U.S. military and intelligence agencies have reportedly waterboarded their own people as part of their training on how to resist interrogation.

Nor is it clear that all forms of waterboarding violate the McCain amendment's provision specifying that the ban on CIA use of "cruel, inhuman, or degrading" treatment (called "CID") extends worldwide. The amendment, passed amid much discussion of waterboarding, limited military interrogators to the list of relatively mild, traditionally approved interrogation methods in the new Army Field Manual, which prohibits all physical coercion.

But Congress quite deliberately chose not to limit the CIA to those methods, and thus tacitly gave the CIA approval to use unspecified forms of physical coercion. Moreover, Congress defined CID as limited to forms of coercion that would violate certain provisions of the Constitution, which the Supreme Court has held to prohibit only practices that "shock the conscience." The case law suggests that whether various interrogation practices shock the conscience depends on the importance and urgency of the information likely to be obtained and "exact analysis of [the specific] circumstances."

Waterboarding and some other highly coercive techniques would shock my conscience if used routinely or frequently on terrorism suspects. That's why I believe that, once confirmed, Mukasey will issue a legal opinion effectively banning waterboarding as CID in almost all circumstances.

But should Mukasey rule that waterboarding is always illegal? Even in the cases of those very few, if any, detainees who seem highly likely to have potentially lifesaving information? And even if it were done under rules requiring high-level, case-specific approval and prompt disclosure to the Intelligence committees? I don't think so.

Human-rights activists and some experts claim that all highly coercive interrogation techniques shock the conscience because they are virtually useless in eliciting valuable information. But other, perhaps better-informed, experts are quite convinced that coercive interrogation has saved lives. Former CIA Director George Tenet, for one, told CBS's 60 Minutes in April that what Bush calls "enhanced" interrogation "is worth more than [what] the FBI, the Central Intelligence Agency, and the National Security Agency, put together, have been able to tell us" about terrorists' plans.

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Notice that one central issue here is the question, raised several years ago on this blog, as to whether there is ever any room for situational ethics in the assessment of what may be done in interrogation. Specifically, I argued a couple of years ago that (a) torture, whatever that was defined to be, is always illegal, all times and all places and all persons, but that (b) coercive interrogation techniques short of torture might be permissible depending upon what you knew about the person under interrogation.

That is, if you knew for a certainty that you had KSM and knew to a certainty his role, one was entitled to do things to him, still short of torture, that one would not be permitted to do to someone about whom you knew nothing. I argued that as a matter of both consequentialist knowledge and deontological culplability; this was disputed by many serious people, including the very serious moral and legal philosopher David Luban. My point now is to observe that this situational relativization is precisely what is argued above in the "shocks the conscience" standard - it depends what you know about the person, the level of reasonably known culpability, and what is at stake prudentially, eg, thousands of lives.

Congressional Democrats, certainly including Hillary Clinton, understand this, which is why they seek to hem and haw so much, while ultimately seeking to evade responsibility. It has been incomphrensible to me why the Bush administration has wanted to absorb all the body blows on these topics rather than share the responsibility with Congress, when it should have forced Congress to step up to the plate on where it would draw the lines on security and civil liberties.