I was surprised to see Orin Kerr stipulate that "[w]aterboarding seems to be pretty clearly forbidden under [18 U.S.C. § 2340]," and that "the only fair reading [of the section] is that waterboarding is prohibited by it."
Of course I agree with Orin - the question is a no-brainer. And Orin is a brilliant legal analyst (no snark - he's one of the best legal writers out there), so it wouldn't normally be any surprise to read that he similarly concludes that the question isn't a difficult one.
But I am surprised. Because back in 2007 Orin gave me all sorts of grief for suggesting the question was, well, a no-brainer. I've excerpted our 2007 exchange below the fold (starting with my comment; Orin's comments in official VK pine green):
Good stuff, but this:I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.leaves me wondering just how much study you'd think one would have to do. There are many hard questions in this field, but I wouldn't have counted "Is waterboarding torture?" among them.
I'll happily extend the same offer to you that I made to Scote above [i.e., explain why you reached the conclusion you have].Orin, to quote [the title of your blog post], "Oh, please." I'm sure there are no perfectly on-point authorities that deal with whether, say, shoving a lawn-mower up someone's ass is "torture"; but that doesn't make it a difficult question requiring "study" in order to come to have an "educated opinion."
I cited a relevant statute. (Not that there aren't [other] relevant provisions.) If you believe there is a nonfrivolous argument that waterboarding as practiced by agents of the U.S. is not "intended to inflict severe physical or mental pain or suffering" on prisoners, I'd invite you to educate me.
I certainly recognize your hostility, but could you also make the legal argument that you think is so obvious that any one who does not recognize it without first seeing it deserves your condemnation? I realize you think that the law is so clear that no analysis is needed, but the Administration's supporters have disagreed. I would like to see your response to their claims.Orin, you say, "I realize you think that the law is so clear that no analysis is needed, but the Administration's supporters have disagreed. I would like to see your response to their claims."
Yes, it's true: I really do believe no legal analysis should be necessary. Waterboarding is so paradigmatic a form of torture that asking whether it is "torture" is akin to asking whether intentionally shooting someone in the head is "murder." That no court has weighed in on the matter should be considered instructive rather than confounding. See alkali's comment, supra.
Nonetheless, I will give the legal response you request, but only as to those claims of the administration you certify as colorable.Drake writes:
Waterboarding is so paradigmatic a form of torture that asking whether it is "torture" is akin to asking whether intentionally shooting someone in the head is "murder."Not to quibble too much, but often intentionally shooting someone in the head is not murder. If it is performed in the "heat of passion," for example, it will be only manslaughter in most jurisdictions. This is pretty basic criminal law, I think; it's certainly a significant part of most first year criminal law classes.
That no court has weighed in on the matter should be considered instructive rather than confounding.Why? I don't know of any cases at all construing this statute. What does that instruct?Nonetheless, I will give the legal response you request, but only as to those claims of the administration you certify as colorable.Well, I'm not an expert in the Adminisration's arguments: I assume you are, as you are the legal expert on this issue who knows all about it. But one argument I recall involves the word "prolonged." For conduct involving mental pain to constitute torture under 18 U.S.C. 2340, the actor must have purpose to cause mental harm that is "prolonged." If the actor only has the intent to cause mental pain of less duration than a "prolonged" duration, then it is not torture under the statutory definition.
As I understand it, defenders of the Bush Administration claim that waterboarding is not intended to cause "prolonged" mental pain, but is only intended to cause short term mental pain. That seems to raise the line-drawing issue of just how long something needs to be to be "prolonged," what the mental "pain" is that is prolonged, and whether waterboarding meets that. Perhaps you could start there? I really look forward to your analysis; if you can shed light on this issue I would really appreciate it.
"Not to quibble too much, but often intentionally shooting someone in the head is not murder. If it is performed in the "heat of passion," for example, it will be only manslaughter in most jurisdictions. This is pretty basic criminal law, I think...." (Link.)
Well, I think you do quibble too much: "Murder" is very commonly, if not strictly legally, used to encompass any illegal killing (of which manslaughter is one type); and I was writing a comment on a blog rather than submitting a brief to a court. This is pretty basic common sense, I think.
If it suits you, though, replace "murder" with "criminal homicide." I won't quibble.
"I assume you are, as you are the legal expert on this issue who knows all about it."
I'd invite you to show me one sentence I wrote that supports the notion I was holding myself as expert about anything.
"For conduct involving mental pain to constitute torture under 18 U.S.C. 2340, the actor must have purpose to cause mental harm that is 'prolonged.'"
First, you're omitting the "physical pain" component of the statute. Causing "severe physical pain" is sufficient for an act to qualify as "torture." Does waterboarding inflict "severe physical pain"? Well, ask anyone undergoing the procedure if they are experiencing "severe physical pain." And if you don't get the answer you want, keep applying the technique until you do. Eventually, you will. Which is not beside the point. (A point developed infra.)
Second, assuming (probably counterfactually) that waterboarding isn't intended to inflict severe physical pain, it self-evidently is intended to cause prolonged mental harm. Yes, the "prolonged" language in the "mental harm" clause does raise a line-drawing "issue." As do indeed the terms "mental" and "harm." And the verb "to be."
These difficulties, though, tend to be eased by considering what is involved in the practice of waterboarding and applying a dash of logic to the administration's argument about what the practice is intended to accomplish.
The procedure of waterboarding involves binding the prisoner to a board in a supine position, feet slightly higher than the head. Cellophane is wrapped over the prisoner's face, and then water is poured over him. This elicits a gag reflex, and, as ABC puts it, "a terrifying fear of drowning...."
Of course that inducement of terror would have to be a sine qua non of waterboarding's touted efficacy: Presumably, mere physical discomfort would be insufficient to elicit information from an elite, well-trained jihadi bent on resisting the infidel's interrogation efforts. (This terror-inducing aspect of waterboarding is also probably why John McCain, who has some relevant personal experience, has called waterboarding "torture, very exquisite torture.")
But then this renders the administration's argument something like the following: We use water-boarding intending to elicit a terrifying fear of death in the subject, but not intending to cause any prolonged mental harm.
I say that the administration's argument deserves a derisive "Oh, please."
And can I just suggest that the idea we ought to exercise maximal charity toward the arguments lodged in favor of what is at the very least arguably torture is misbegotten? It doesn't take expertise in the law of torture justifiably to presume that waterboarding is torture, any more than it takes a chef to know when the toast is burnt.Well, I think you do quibble too much: "Murder" is very commonly, if not strictly legally, used to encompass any illegal killing (of which manslaughter is one type); and I was writing a comment on a blog rather than submitting a brief to a court. This is pretty basic common sense, I think.Maybe I'm missing something, but I thought the point of the thread is about the "strictly legal" question. To go back to Mukasey, no one ever asked him if he thought waterboarding fit a typical person's understanding of torture. He was asked a technical legal question about if he thought waterboarding was torture.As for your legal argument on waterboarding, can I ask you to complete the argument? If I understand you correctly, your argument seems to be that waterboarding is torture because either (a) it involves physical pain, or (b) it both looks like something we often think of as torture and it is used to achieve the goals of torture. But can you complete the picture a bit by explaining (1) what is the distinction between physical pain and mental pain and (2) how the appearance and goals of the procedure inform the meaning of the statute?"
Maybe I'm missing something, but I thought the point of the thread is about the "strictly legal" question." (Link.)
If the point at issue in our exchange is all and only a strictly legal one, then I'm the one missing something.
The legal issue -- whether waterboarding is "torture" under some relevant legal authority -- is certainly one of the issues being developed in this thread.
But as I saw it, the main issue raised by the original excerpt I quoted was political. That issue had to do with what epistemic burden a citizen has when it comes to judging the fitness of officials for office.
On this score, you suggested that for you competently to judge Mukasey's fitness in light of his response to questions about waterboarding, you would have to "study" (in pursuit of an "educated opinion") as to whether waterboarding is "torture" in some relevant sense (which as I took it might be one of many legal senses, or a moral sense, or a common sense, or some other sense).
I challenged this standard (admittedly in a figurative manner), and wondered (less figuratively, at the end of this comment) why a citizen would want to adopt an attitude of agnosticism about (at the very least) arguable acts of torture. To give more content to this notion, I also cited alkali's excellent comment ("The easiest cases don't even arise," quoting Posner).
Unfortunately, as far as I can tell, you've completely ignored the political dimension here. That's okay. I understand. You're busy.
Meanwhile, I've acceded to your request to address the legal issue, and I gave what I thought was a fairly plain sketch of the argument structure, which I'll recap as follows:
(1) On the definition of the statute, "torture" encompasses both physical and mental pain.
(2) Waterboarding probably induces physical pain. Prima facie evidence that this is so is the fact that you could get any subject (even those who are highly motivated to claim the procedure is not painful) to state that the procedure is physically painful by subjecting him to the procedure. (Gedankenexperiments aren't generally admissible in court, but I'm wagering you'll agree with my test results enough to wave objections.)
(3) Waterboarding presumptively causes prolonged mental harm. The fact that the technique is intended to induce a "terrifying fear of dying" eviscerates the claim that it is not expected to cause "prolonged mental harm." (Suppressed premise: Terrifying fear of dying generally results in prolonged mental harm.)
Far less than an exhaustive legal analysis, but at least a start, and more than suggesting waterboarding is torture merely because it "looks like something we often think of as torture and it used to achieve the goals of torture," as you (rather uncharitably) limned it.
