Drown by Law

The Bush administration's position on waterboarding is all wet

by Jacob Sullum - November 7, 2007

In 1902 a U.S. Army captain wrote a letter to The New York Times about allegations that American soldiers had used an interrogation technique known as "the water cure" on Philippine insurgents. He claimed "unauthorized methods" had been used only against members of armed groups that were essentially criminal gangs. "From the results obtained it became simply a case where the end justifies the means," he wrote. "A legitimate combatant was never ill-treated."

That letter, quoted by law of war scholar Evan Wallach in a recent Columbia Journal of Transnational Law article, anticipated the arguments the Bush administration would employ a century later to defend its use of "enhanced interrogation techniques" such as waterboarding.

One crucial difference is that the Bush administration pretends waterboarding is perfectly legal.
That stance put attorney general nominee Michael Mukasey in a bit of a spot. During his confirmation hearings he acknowledged that torture is not only illegal but unconstitutional. He also said the president is not at liberty simply to ignore statutory and constitutional restrictions on the treatment of detainees, even if he thinks doing so is necessary to protect national security.

Since the CIA has used waterboarding on suspected terrorists, calling it a form of torture would implicate not only interrogators but superiors who authorized the technique, possibly including President Bush, in federal crimes. Investigating your boss is not the most auspicious way to start a new job.

Not surprisingly, Mukasey decided to reserve judgment on the question of whether the CIA's waterboarding qualifies as torture. He pleaded ignorance of the details and emphasized the need to avoid an "uninformed legal opinion based on hypothetical facts and circumstances."

That stance sounded reasonable but seemed less so upon reflection. As Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who turned against Mukasey's confirmation over this issue, put it, "No American should need a classified briefing to determine whether waterboarding is torture."

Federal law defines torture as an act "specifically intended to inflict severe physical or mental pain or suffering." It defines "severe mental pain or suffering" as "the prolonged mental harm" caused by, among other things, "the intentional infliction or threatened infliction of severe physical pain or suffering" or "the threat of imminent death."

Is there any way that tying someone down, tipping him backward, covering his face with cloth or plastic, and pouring water over him to produce the sensations of drowning would not qualify as torture? What classified detail could redeem a method Mukasey himself called "repugnant" and "over the line"?

As Wallach shows in his journal article, "U.S. courts have consistently held artificial drowning interrogation is torture." Military tribunals have punished Japanese soldiers for doing it to Americans, and U.S. courts have called it torture in criminal prosecutions of police officers and in a lawsuit against former Philippine President Ferdinand Marcos.

The technique, variations of which date back at least to the Spanish Inquisition, is also known as "water torture," a term that clarifies the current debate. In essence, the Bush administration's defenders are declaring, "Water torture is not torture."

What they really mean, I think, is that sometimes torture is justified. If a detainee may have information that could be used to prevent a terrorist attack, for instance, isn't waterboarding the lesser of two evils? As that Army captain put it in 1902, doesn't the end justify the means?

I'm inclined to think it doesn't, not least because a government that asserts the authority to eavesdrop on people at will and imprison them at will is apt to make some terrible mistakes if it also has the authority to torture them at will. But this is an argument about what the law should be, not an argument about what it is.

The Bush administration has a tendency to confuse those two issues. Mukasey's unanticipated trouble on the way to confirmation reflects the expectation that the nation's chief law enforcement official will resist that tendency.