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"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

By Jack M. Balkin

There have been several accounts in recent days of the Vice President and several agency heads and other high government officials (Ashcroft, Rice, Powell, Tenet, Gonzales, Rumsfeld, et al.), convening meeting after meeting in which they deliberately and dispassionately formed a consensus that the United States should establish a systematized, bureaucratic regime of officially sanctioned waterboarding and other plainly proscribed war crimes.

These stories have struck me as old news: After all, last year the President himself publicly boasted of having personally authorized the CIA black sites program and its "enhanced interrogation techniques," which we know to have included waterboarding, hypothermia, stress positions, severe sleep and sensory deprivation, threats to detainees and their families, etc. -- all conduct that is prohibited by several legal norms and that this nation has traditionally prosecuted as war crimes when engaged in by others. If the President authorized it, well then it should come as no shock that there would first have been principals meetings at which this all-important program was discussed and recommended.

What is alarming -- grotesque, even -- is not that such meetings occurred, but that, as far as we know, no one at such meetings interrupted the flow of discussion to point out the obvious -- namely, that these were the highest officials of the most powerful nation on earth, calmly discussing torture and cruel treatment that has long been universally condemned and legally proscribed. The JAGs understood this immediately when the regime of official torture and cruelty seeped into the military. Jim Comey, when he got wind of it, warned DOJ colleagues that they would all be ashamed when the world eventually learned of it. For goodness' sake, as Robert Mueller testified today, even the FBI -- those cowardly, shrinking violets -- quickly recognized this for what it was. And it's not as if the CIA itself was sanguine about the legality of what it was being urged to do: According to a declaration of the information review officer for the CIA's clandestine service court in a current FOIA case, "[t]he CIA's purpose in requesting advice from OLC was the very likely prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participate in the Program."

So why wasn't there any alarmed dissent -- a "Snap Out of It!" moment from Colin Powell, perhaps -- at the principals meetings? How could that not have occurered?

Of course, part of the explanation no doubt was the sheer panic and terror these officials felt in the wake of September 11th, with the prospect of further devastating attacks appearing to be all-too-feasible, and possibly imminent. But it's increasingly clear that another essential factor was that these government officials convinced themselves that this was program was all hunky-dory, and a world apart from the torture regimes with which they were familiar, because this time, the administrative regime was being sanctioned and overseen by trained professionals -- the best lawyers in the government, as well as physicians and psychologists.

So, for example, the principals were plainly moved by the insistence of OLC and the Department of Justice that there were countless sophisticated, heavily footnoted reasons why the numerous apparently pertinent legal limitations that would prevent the CIA program -- the Constitution, the Geneva Conventions, the Torture Statute, the Convention Against Torture, the UCMJ, the assault and maiming statutes, etc. -- did not, in fact, apply to this war, to this agency, to these detainees, to these secret locations, . . . to this Commander in Chief.

For instance, the Attorney General himself sat in on these meetings, and it appears that the nation's chief law enforcement officer assured the assembled participants (including himself) that when the Senate gave its advice and consent to the Convention Against Torture, it included a reservation "defin[ing] torture as something that leaves lasting scars or physical damage," such that "no, waterboarding does not violate international law." Yes, John Ashcroft insisted on this legal justification just the other day, as an explanation of how he could have approved waterboarding. Needless to say (well, it used to be needless, anyway), it ain't so -- there's no such Senate reservation about lasting scars or physical damage. But John Ashcroft continues to this day to believe that there was!

OK, but what about the very well-known fact that the "water treatment" was used by the Spanish Inquisition; by U.S. forces in the Philippines at the turn of the 20th Century; and by the Japanese in World War II -- and that in each case it was universally condemned as unlawful torture? Ashcroft's interlocutor the other day, one "Elsinora" at Knox College, asked him whether he was familiar with the judgment at the Tokyo Tribunal against Yukio Asano for having employed the "water treatment" in this manner, against American troops for purposes of obtaining intelligence information: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." The allies sentenced Asano to fifteen years hard labor for this conduct. Here's the remarkable exchange between Elsinora and Ashcroft on the Asano precedent:

Elsinora: Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust?

ASHCROFT: Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.

Elsinora: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...

ASHCROFT: "Pouring"! "Pouring"! Did you hear what she said?: "Putting a cloth over someone's face and pouring water on them."

That's not what you said before! Read that again, what you said before [about the Asano case]!

Elsinora: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."

ASHCROFT: You hear that? You hear it? "Forced"! If you can't tell the difference between forcing and pouring...Does this college have an anatomy class? If you can't tell the difference between forcing and pouring... .

As my colleague David Luban put it today, this Ashcroft exchange -- and a virtually identical attempt by Steven Bradbury before Congress last month to distinguish U.S. waterboarding from that of the Spanish Inquisition -- confirms "the underdeveloped jurisprudence of the forcing/pouring distinction."

You see, the CIA apparently uses the less dangerous version of "waterboarding" -- not the Spanish Inquisition method, but the technqiue popularized by the French in Algeria, and by the Khmer Rouge -- involving the placing of a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head. That's the civilized version of waterboarding -- the benign, anodyne, variant of the water treatment, the kind carefully administered by professionals. We would never dream of the barbaric practice of actually forcing the water into the nose and mouth.

"Apples and oranges."

Full post as published by Balkinization on April 24, 2008 (boomark / email).