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.

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.

Alan Dershowitz has an op-ed in today's Wall Street Journal, available through the Harvard Law School web site. I have no doubt that most Balkinization contributors will disagree strongly with the thesis of the piece, which is that there are indeed circumstances where "we" would want the President to authorize torture. He also argues that Mukasey was correct to say that he would need to know specific circumstances before offering a definitive opinion on whether waterboarding, or any other form of interrogation, was unconstitutional because, Dershowitz says, existing case law indicates that the Supreme Court offers quite ambiguous doctrine on the point, that what "shocks the conscience" may involve taking into account the purposes for which any given method is used.

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."

Yesterday, CIA Director Michael Hayden confirmed that the CIA used waterboarding on three subjects.

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it.

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

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:

Explaining why Judge Mukasey has her vote, Senator Feinstein opines:
As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.

Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government.Just one little problem with this logic. The prohibition on torture already applies to all parts of the government. Apparently Senator Feinstein has not read the Detainee Treatment Act, which she voted for.

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:

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.

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:

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?

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.

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.")

Who could have imagined this history lesson would ever again be necessary? Or that photographs of the Vice President and Attorney General of the United States will one day appear in such histories?

NPR

Evan Wallach

Malcolm Nance

Wikipedia

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"!

Has it really come to this?

In my previous post I did not adequately convey just how chilling Steve Bradbury's testimony was today. It began early on: Rep. Nadler asked Bradbury how OLC could possibly have concluded that waterboarding is not torture -- After all, isn't the whole point of the technique to induce severe physical pain and/or suffering so as to compel recalcitrant detainees to talk? Doesn't its reported effectiveness -- most victims cannot withstand more than 30 seconds of it -- speak for itself? Of course it's designed to inflict severe physical suffering. And if it does so, as Bradbury concedes, it's prohibited torture, no matter what the justification might be.

Steven Bradbury, who is Deputy Assistant Attorney General for OLC (there has not been an official AAG at OLC for some time), is testifying today before the House Intelligence Committee. Here's his written statement. Not much to speak of there, except to note that he will not discuss the CIA techniques that have been deemed legal or unlawful, other than a welcome suggestion that hypothermia ("extremes in temperature") is now proscribed, even under DOJ analysis. Bradbury confirms that DOJ (that is, AG Mukasey) continues to adhere to the legal analysis in the December 2004 OLC opinion, with its indefensible reading of the torture statute. Bradbury also confirms what others in the Administration have been saying recently -- namely, that the "enhanced techniques" are used not merely in proverbial (but in fact mythical) "ticking timebomb" situations, but instead whenever the method in question is deemed "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership."

Last evening a friend asked whether I was going to blog about the really rather unbelievable story Jan Greenburg broke yesterday about Daniel Levin and waterboarding. (Unbelievable in the sense that, when someone described it to me, I assumed he was kidding -- trying to come up with something that would top the Ashcroft hospital story to see if he could get a rise out of me. I obviously have not learned my lesson that in this Administration, when it comes to the law, one should assume that nothing is beyond the pale.)

Today's New York Times story about the arraignment of Khalid Shaikh Mohammed concludes with this sentence:
"C.I.A. officials have said that Mr. Mohammed was one of three detainees who were subjected to the simulated-drowning technique known as waterboarding during interrogation, which is described by some as torture."I look forward to Times stories about the earth, "which is described by some as round and as revolving around the sun."

[UPDATE: My colleague David Luban is quite right to note, in addition -- and perhaps more importantly -- that there's nothing "simulated" about the drowning. It's all-too-real drowning. It simply is not permitted to last until death.]

The IntLawGrrls blog has posted a rough transcript of Justice Scalia’s illuminating comments on "so-called" torture in a recent interview with BBC.

BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?

Commissioner of Baseball was the job that George W. Bush really wanted. Because Bud Selig, while owner of the Milwaukee Brewers, insisted on converting his position as interim baseball commissioner into permanent commissioner, he prevented George W. Bush from getting his dream job. As a result, Bush had to settle for second best, and it's clear his heart hasn't really been in it.

Had Selig stepped down, Commissioner Bush, a recovered "heavy drinker," would certainly have wanted to crack down on the merest hint of misuse of drugs by baseball players. And, as baseball commissioner, he wouldn't have invaded Iraq, legitimized torture and shredded the Constitution. And who knows, President Gore might served only one term and the Republicans might have kept control of Congress, so everybody's a winner.

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Said President Bush to General Musharraf yesterday: "You can’t be the president and the head of the military at the same time."

Of course, under our own Constitution, the President must be the head of the military. Indeed, that very Commander-in-Chief Clause has been the source of many of President Bush's own most aggressive claims of unilateral and unchecked power in the conflict with al Qaeda and the war in Iraq. As Bush himself delightfully puts it in his inimitable, colloquial way, "I'm the commander guy."

Today the Senate voted 51-45 to adopt the Conference Committee's intelligence authorization bill. Included in that bill is section 327, a Feinstein Amendment that would require all agencies of the U.S. government, not simply the military -- to limit interrogation techniques to those identified in the Army Field Manual. Section 327 reads as follows:
SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) LIMITATION.—No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.
(b) INSTRUMENTALITY DEFINED.—In this section, the term ‘‘instrumentality’’, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.Only five Republicans voted for the bill--Senators Collins, Hagel, Lugar, Smith and Snowe.

Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.

I can't help but wonder if John McCain might not find some real merit in the suggestion. Consider his dilemma. It is clear that Mike Huckabee isn't going to be the nominee for president, but his followers might (legitimately?) feel dissed if he isn't chosen for Veep. At best, they might stay home; at worst, they might vote for Obama and actually put some of the Red States in play, especially if Obama chooses, say, James Webb or Wesley Clark as his Veep. On the other hand,

Alas, there's nothing new under the sun. Here's Karen Greenberg on recognizing Steven Bradbury in the Torture Museum. And Paul Kramer, with a great story about the uncanny historical precedent of our waterboarding (and its justifications) in the Philippines at the turn of the . . . Twentieth . . . Century.

But don't fear -- it's not "torture."

The blogosphere is up in arms about General Mukasey's repeated testimony that he will not open a criminal investigation against those CIA operatives and contractors who engaged in waterboarding against al Qaeda detainees. (In testimony before the House Intelligence Committee today (see this video at approximately 1:19:10-1:23:50), CIA Director Hayden acknowledged that contractors were involved in the waterboarding, and stated that the technique was last used "just a few weeks short of five years" ago, i.e., in the Spring or late Winter of 2003.)

According to Mukasey, it is unthinkable that "the same department that authorized the program would now consider prosecuting somebody who followed that advice." (Video and transcript here.) He said the same thing about the unlawful NSA wiretapping program, too.