There seems little doubt-- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don't like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.

David Strauss

Jack Balkin’s insightful and fair-minded response raises several interesting issues.

1. First, the "levels of generality" problem. The "original expected applications" originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit "cruel and unusual" to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).

Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

David Strauss

Cross posted at University of Chicago Law School Faculty Blog

As Marty has detailed in multiple posts (including below), the Bush Administration has argued that water boarding is not "torture," and it has argued that water boarding is not "illegal" if a Justice Department official so opines.

In conjunction with those arguments, the Bush Administration also appears to suggest that whether water boarding constitutes "torture" depends not only on the water boarding itself but on the urgency of the situation. By this reasoning, a water boarding session under urgent circumstances is not "torture," while the same water boarding under less dire circumstances is "torture."

The Administration's position is described as follows:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said....

Apparently everyone is up in arms over the fact that John McCain was born in the Panama Canal zone in 1936. Is he a "natural born citizen" eligible to be President under Article II, section 1, clause 4 of the Constitution?

I have to tell you, frankly, that whether McCain is "natural born" is the least of our worries. If you are truly an originalist, as I am, nobody is eligible to be president today.

I recently took Ed Whelan's simple one question test to determine whether you are really an originalist and confirmed that, yes, I am one of that proud and hardy band.

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a "natural born Citizen" (or, alternatively, in a provision that long ago ceased to apply to any living persons, "a Citizen of the United States, at the time of the Adoption of this Constitution") How would you figure out what the phrase "natural born Citizen" means?

Our President today vetoed a bill that -- once again, for the umpteenth time -- would have rendered even more unlawful some or all of the CIA's "enhanced interrogation techniques." Not much new in the President's veto statement -- the CIA techniques are not "torture"; they are not "cruel treatment" prohibited by Common Article 3; and whadda ya know? -- they're even "humane"!

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004. I'll add some highlights here shortly -- in the meantime, go read the responses.

GWEN IFILL: Let me ask Senator Bond a little bit about this issue of waterboarding. And let me describe for our viewers first to remind them what it is. It's when there's a piece of cloth that's placed over the mouth of a person who's been strapped down, and water is poured on their face so they feel like they're inhaling water, and it gives a sensation of drowning. Do you think that's torture?

SEN. KIT BOND: [Long, non-responsive answer.]

GWEN IFILL: I just would like to -- but do you think that waterboarding, as I described it, constitutes torture?

SEN. KIT BOND: There are different ways of doing it. It's like swimming: freestyle, backstroke.

Truly grotesque.

Senator Biden just asked the Attorney General how it could be that the legality of waterboarding depends on the "circumstances," as Mukasey wrote in his letter. Mukasey's response was revealing: He pointed to the "shocks the conscience" test under the Due Process Clause and the McCain Amendment, under which, Mukasey argued, the "cruelty" of the technique must be weighed against the potential benefits. Biden did not understand how such sliding-scale variables could affect whether the technique is torture or not. Mukasey began to respond that he was not talking about the torture statute.

Thanks to Jack for responding so quickly to my post. I’ll try to keep these further thoughts on a relatively general level, because I don’t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don’t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don’t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don’t need the thirteenth amendment because Congress already has the power, we don’t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

The Senate, to its discredit, seems poised to confirm someone as Attorney General of the United States who is unwilling to give an honest answer to what is in fact the status of waterboarding with regard to torture. Even if one accepts, arguendo, the proposition that there may be a tenable argument that under some circumstances it would, nevertheless, be permissible, that doesn't in the least affect the validity of describing it as torture. Instead, one would be forced to argue that there are circumstances where the use of torture would not "shock the conscience" of someone we would regard as a "reasonable person." This is, incidentally, why I wish that the senators had been more skilled in distinguishing what I would call the "descriptive questions"--i.e., what do we call it?--from the legal ones--i.e., is it always the case the torture is illegal or unconstitutional?

I want to thank Jack for inviting me to post on Balkinization. I’ve been thinking about Hillary Clinton’s emotional moment in New Hampshire, and I appreciate the chance to discuss some of the issues it raises.

Compare Hillary’s moment with the most famous moment in the campaign of Michael Dukakis; the one many think derailed his presidential bid. Here’s a typical account of what happened:

“The second debate, opening with CNN anchor Bernard Shaw's question to Michael Dukakis whether or not he would favor the death penalty for someone who raped and murdered his wife, was a crucial moment in the 1988 campaign. The question was meant to give Dukakis an opportunity to show emotion, but he blew it, and answered in a wooden, lawyerly manner.”

Back during his confirmation hearings, I suggested that Michael Mukasey could and should address Senators' concerns about waterboarding by simply stating that it is unlawful torture (and cruel treatment), but that no CIA officials will be prosecuted for having followed contrary legal conclusions issued by OLC. Of course, he did not take that route; instead, he told Senators that he would review the relevant legal memoranda, and then prohibit any conduct that he concluded would be unlawful.

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:

Both Paul Clement and Seth Waxman were superlative -- two of the best at their very best.

The Administration has now publicly acknowledged that it used waterboarding, that it might do so again in the future, and that it has concluded that waterboarding is lawful, at least under certain circumstances (apparently, where it doesn't shock this Administration's conscience). Virtually the entire rest of the world, including, as far as I can tell, every legislator (both Democratic and Republican) who has spoken to the question, has concluded that waterboarding is categorically unlawful because, at the very least, (i) it is torture, prohibited by the torture act and Common Article 3, and the Convention Against Torture; (ii) it is cruel treatment, prohibited by Common Article 3; and (iii) it shocks the conscience, therefore violating Article 16 of the Convention Against Torture as well as the McCain Amendment.

The Department of Justice disagrees. And it has therefore authorized the CIA to engage in conduct that the rest of the world considers unlawful torture and cruel treatment. (In his testimony today, CIA Director Hayden euphemistically explained that the CIA uses such techniques -- which the FBI and DOD representatives testified are unnecessary for the collection of vital intelligence -- in order to get detainees "into a zone of interrogation.")

Kudos to William Safire for his "On Language" column today, in which he writes, unequivocally, that "if the word torture, rooted in the Latin for 'twist,' means anything (and it means 'the deliberate infliction of excruciating physical or mental pain to punish or coerce'), then waterboarding is a means of torture."

Safire also pointedly ends his column with this quote from Darius Rejali, on why "waterboarding" has recently been coined to replace "water torture," the "water cure," and the "water treatment":
"There is a special vocabulary for torture. When people use tortures that are old, they rename them and alter them a wee bit. They invent slightly new words to mask the similarities. This creates an inside club, especially important in work where secrecy matters. Waterboarding is clearly a jailhouse joke. It refers to surfboarding" — a word found as early as 1929 — "they are attaching somebody to a board and helping them surf. Torturers create names that are funny to them."Most important, and most striking, however, is Safire's lede, in which the language maven, our most prominent popular word dissector, refuses to mince words:

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

Not surprisingly, Attorney General Mukasey has proven George Orwell right: He refuses to say that waterboarding is unlawful -- sometimes it is; and sometimes . . . perhaps not. It all depends on the facts and circumstances. In a letter he issued last night, Mukasey wrote: "If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding.

I'm working with a colleague to analyze some focus groups he conducted in which people talk about their communication with their physicians. I'm working mostly with the ones that were conducted in Spanish, but that's largely beside the point for this post. I'll give you my English translation of the material. We had two groups consisting of people who had a college education, and two groups consisting of people with limited formal education. The moderator asked them to explain what the term "depression" means to them. Here are typical reponses from the smarty-pants people with ejumukashin:

It is a mental state caused by stress or a traumatic event. It is a state of hopelessness.

It’s a very complicated term, you have to know a bit [lit. the dregs] of psychology in order to understand what is happening to you. At first I thought that depression had a biological component but now I know that it has a social component.

To sleep many hours, not to want to get up, to use a lot of drugs, not to respond to the stimuli of daily life.

It is an electro-chemical change in the levels of the neurotransmitter.

The levels of serotonin are lacking, serotonin levels that the brain does not produce.

And here's the sort of thing the unschooled rabble had to say:

Here's a blogging meme I stole from Dewey. I should have another review posted tomorrow on The Grass is Singing, another Doris Lessing novel.

1. Do you remember learning to read? How old were you?
According to my grandmother, I learned to read at two. I can’t help but think she’s exaggerating, though. Perhaps she just means that I would read back the stories that she read to me. If she is correct, I’m a genius and I should be elected next ruler of the world. That is all.

2. What do you find most challenging to read?
I don't so much find anything in particular challenging to read; I do, however, find it challenging to read after a long day or when I'm tired. It's right to sleep if I do.

3. What are your library habits?

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

Deborah Pearlstein asks what evidence we have that the right to keep and bear arms is a fundamental right of the same kind as other fundamental rights, such as those mentioned in the Bill of Rights. I can offer no better evidence than the speech offered by Senator Jacob Howard, a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment and the floor manager of the Fourteenth Amendment. He was given the task of introducing the amendment before the United States Senate and explaining its purposes.

* * * * *

SENATOR JACOB HOWARD, SPEECH INTRODUCING THE FOURTEENTH AMENDMENT
Speech delivered in the U.S. Senate, May 23, 1866 [CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).]

Mr. HOWARD. . . . I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. . . . .

I'm one of those old-fashioned types who subscribes to magazines -- you know, ink on cheap paper that they mail to your house every month. You have to read essays consisting of literally thousands of words, but with a little practice, you'll find it's possible. It can give you a whole different picture of the world than you get from TV, or even the newspaper. For example, the front page of the Boston Globe this morning had as its headline a story about Pope Benedict coming to the U.S. (which hasn't even happened yet). Other front pagers were bits about parents telling their kids to stop sending so many text messages, and falling housing prices making it possible for people of moderate means to once again move to the suburbs. Turning the page, we find that Barack Obama said people in the rust belt are bitter, which according to Hillary Clinton proves that he is an arrogant out of touch elitist who hates America. This is evidently the key issue confronting the voters.

Yesterday's Washington Post and today's New York Times both report that some of the evidence against the six Guantanamo defendants charged with perpetrating 9/11 comes from re-interviews by the FBI's "Clean Team" – a group of investigators who interrogate without abusing or torturing the subjects. (The others, I guess, are the Unclean Team.) That finesses the awkwardness that might arise from needing to get tortured testimony admitted into evidence. (Quick recap: the Military Commissions Act makes evidence procured under torture inadmissible (10 U.S.C. 948r(c)), but allows in probative, reliable coerced evidence if the level of coercion is disputed (10 U.S.C. 948r(d)). In other words: you say that waterboarding, Cold Cell, Long Time Standing, intensive sleep deprivation, prolonged isolation, and whatever else the Unclean Team did are torture. But we, the government, say that they aren't. So the level of coercion is disputed, and therefore the evidence may be admissible.)

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Static,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation: