[Guest post by Aaron Worthing; send your tips here.]
Today’s comment bait is brought to you by the Washington Post which says (for now at least):
In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.
The WaPo presented this as an example of it being a revelation. Personally I thought to myself “what else is new?” And the WAPO insinuates that “human rights experts say could one day have legal consequences for him. “ As for whether it is torture or not, I think you have to divide it between the legal question and the moral question, although you will see some interaction between the two. Morally, I would say that wherever the line between torture and tough interrogation is, waterboarding is very close to that line. I think it is on the right side of the line, as something unpleasant but not actually torturous. But I respect people who disagree. Still those who do disagree need to get off their high horse and recognize the issue is a little more subjective than they are generally pretending it is.
As for whether it is legally torture, well, here is the current wording of the U.S. Code:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
So, you ask, what does phrase like “severe physical or mental pain or suffering” actually mean? Well, the law gives some specific examples like death threats, but outside of that I have no idea. And in fact no one does with any certainty. And I know enough about the history of the statute to know that it wasn’t any clearer at the time the waterboarding occurred.
And indeed in the criminal law that presents a very severe problem. There is something in our criminal law called the doctrine of lenity. It means that when interpreting the criminal law, the courts will interpret it in favor of the accused. This rule is designed to prevent any accused from being convicted based on an activist decision of the court. So if we tried to put Bush on trial for the waterboarding, it would be hard, probably impossible to convict him for that reason alone.
Further, there is an inherent Fifth Amendment Due Process problem presented when you try a person under a law so vague that it gives persons no notice of what exactly is being banned. Of course we have a lot of criminal laws on the books and among common law crimes that are very vague. Often cruelty to animal laws are vague, to name an example. But in that case, the courts interpret it to only include what us lawyers call mallum in se. That is conduct that is inherently wrong, in contrast to mallum prohibitum, which are items that are only illegal because they are unlawful. So throwing a puppy in a blender (safe, funny link) is inherently wrong, but failing to get your puppy neutered is only wrong if the law requires you to do so. And I think the unstated idea is that if the act is sufficiently wrong in and of itself, then you really don’t need a clear statute to put you on notice that you could get in trouble for ordering it. That certainly seems to be the logic of trying the Nazis at Nuremburg, given that they were tried based on crimes that were not even actually crimes at the time they committed them, a violation of the principle against retroactive criminal laws embodied in the ex post facto clause of the constitution.
All of which brings us back to that moral judgment. Again, it is pure hysteria to pretend that waterboarding is clearly and unambiguously torture. It’s more than a little subjective. And as such, I don’t see how you can call it such clear mallum in se that Bush should be placed in legal jeopardy for doing it. And I haven’t even mentioned that Bush would surely have available to him the justification of defense of others which could potentially relieve him of criminal liability if it was found to be torture or otherwise unlawful.
But on the other hand, if I was Bush’s legal advisor I would tell him flat out: do not ever leave the country. These protections I outlined apply on sporadically in the rest of the world.
[Posted and authored by Aaron Worthing.]