Monday, October 29, 2007
Marty Lederman
Over in the New Republic,
Ben Wittes agrees that it's virtually inconceivable that waterboarding is not torture, but nevertheless argues that Judge Mukasey would be within his rights in refusing to say so in response to Senate questions:
It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.
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Ben's argument, in essence, is that Mukasey cannot responsibly repudiate OLC legal advice that he has not seen. I think that's mistaken, for several reasons.
First,
as I've explained previously, there's no real risk of criminal exposure for the CIA personnel who waterboarded based on OLC's advice. Second, the analysis should not be classified in the first instance -- as I've argued several times previously here, there's no real justification for keeping secret our government's official legal advice about whether waterboarding is lawful or not. But third, and be that as it may, there's nothing stopping DOJ from showing Judge Mukasey the OLC opinions now. Nothing. (Presumably he has the requisite security clearances from his work on terrorism trials -- or could obtain such clearances ASAP.)
Fourth, the basic core of the OLC advice about waterboarding
is already public. It can be found right
here, in the final paragraph of section II(2) of a public OLC opinion, a paragraph that was obviously written with waterboarding specifically in mind, and one that is manifestly and egregiously wrong as a matter of law on the term in the torture statute most pertinent for these purposes: "severe physical suffering." I've already
written at length on this point. I'll reprint my analysis below. (In retrospect, my rhetoric there was a bit overheated -- but forgive me, I was outraged.) The bottom line is that the OLC legal analysis in support of waterboarding is indefensible -- I think Ben would agree -- and Judge Mukasey should simply say so.
Which brings me to the final and most important reason why Judge Mukasey can answer the question -- even if DOJ does not provide him with the classified OLC memos. There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment. After all, as Henry Hart stressed, even legal rules that appear straightforward contain seeds of ambiguity, and raise difficult questions of application. Does a "No Vehicles in the Park" law prohibit a baby stroller? A statute of a tank? Roller skates? Bicycles? A wheelchair? An ambulance? (See H.L.A. Hart,
Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958); Lon Fuller,
Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958); Jeremy Waldron,
Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 537 (1994); Pierre Schlag, []No Vehicles in the Park, 23 Seattle U. L. Rev. 381 (1999).)
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