POSTED BY WLS
There are several related discussions going on across various threads connected to this question. So, lets just bring them all together here.
But, lets give ourselves some context. Here is how “torture” is defined in 18 USC Sec. 2340:
(1) “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;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality….
Now, lets elevate the discussion by taking a lot at two articles over the last couple days that both portend to answer this question — Stuart Taylor’s piece out yesterday in the National Journal, and an Op-Ed today in the WaPo from the former General Counsel of the Navy and a former State Dept. lawyer. You tell me who gets the better of the debate:
From Taylor —
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 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….
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.”
Note that Taylor takes care to look at the specific language of the LAW to determine if particular conduct might be considered to be in contravention of the LAW, and comes up with very little of substance thanks to the failure of the legislature to allow itself to be pinned down. And Taylor says that’s exactly the way Congress wanted to leave it — it had no interest in clarifying the point:
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.
Lets now consider the Mora and Shattuck Op-Ed washington post today:
The question of whether waterboarding constitutes torture is a no-brainer. Our nation and many others have recognized for decades that it does. One doesn’t have to have been “read into” the details of a classified program, as President Bush has suggested, to reach a judgment about this interrogation technique. Common sense is the only tool needed to understand that inducing the sensation of drowning — i.e., of dying — is torture.
That’s the first paragraph, and looking as hard as I could to find some, this is as close as these two lawyers get to even mentioning a statute or statutory language. Frankly, I’d be embarassed to put my name on an Op Ed dealing with an important legal subject with such meaningless and shallow “reasoning.”
What the overlook is the fact that many statutes, state and federal, define crimes which can be descriptively captioned with a single word. Homicide. Rape. Robbery. Racketeering. Fraud. Treason.
But those words are meaningless in the absence of the statutory definitions in the statutes which describe what ACTIONS constitute the elements of each crime.
Saying some act is “torture” is useless unless the nature of the act is compared to the prohibitions in the statute.
Since Mora and Shattuck made no effort to do that, we in the business of real lawyering refer to such an event as a substantive default. The could have tried, but they didn’t. We’d at least have something to argue about had they tried. Rather, they rely on “its a no-brainer” requiring only the application of “common sense.”
I going to write that down so I remember it the next time I’m asked to explain in the Ninth Circuit why there was sufficient evidence that the defendant had committed the crime for which I had won a conviction.