Legal Commentary

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

As Marty has pointed out, Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. Perhaps the CIA doesn't want to play outside the box. But the Administration has simply built it a new box to play in.

It is worth recalling that at his recent hearings Attorney General Mukasey refused to explain the legal basis for why the CIA interrogation techniques (including waterboarding) are not illegal, arguing that the legal explanations themselves are classified, so that no one can know what the laws are.

Mukasey's performance reflects two major rule of law concerns about the Bush Administration's policies. As readers of this blog know, I've long argued that the rule of law is not simply a formal legal requirement that like cases be treated alike, but rather a set of political values that must be realized in institutions of law. They include the principle that laws should be designed to restrain the arbitrary exercise of power, that no one should be be a judge in their own case, that executive officials should be accountable for their acts, and that laws should be public and applied fairly and impartially. These political values, which legal institutions should seek to implement, are principles and not rules; they do not determine the scope of their own extension and application, and therefore how best to implement them can be controversial. Nevertheless, they are central to having a government under law. The contortions the Administration has gone through to first to hide the existence of waterboarding, and then to justify it, well demonstrate how it has violated these principles.

Full post as published by Balkinization on February 06, 2008 (boomark / email).