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Not So Fast There, Ana

By Jack M. Balkin

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

"In [the Bradbury statement], the DOJ, for the first time and in direct contradiction of Lederman's conjecture, declares waterboarding illegal under current law. . . . Bradbury's statement shows, at the very least, that Lederman was incorrect about how the administration would read the law as applied to waterboarding."

Ana, you really ought to read these things before you rely on them. [UPDATE: Perhaps "shill" was too intemperate. I just found it odd that Ana Marie Cox would take the McCain campaign's word for what a document said, and would defend McCain against my criticisms so vociferously, without actually checking the document itself.] The Bradbury statement most certainly does not declare waterboarding illegal under current law. What it very carefully says, instead, is that "[t]here has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

So, contrary to the propaganda that the McCain folks are feeding Cox, DOJ has not determined that waterboarding is unlawful "under current law." Indeed, in today's testimony, Rep. Scott asked Bradbury flat out (video at approx. 1:04:30): "Has there been a determination that it is unlawful under current law.?" Bradbury's answer: "No, sir."

OK, but if DOJ has not determined that the technique is lawful or unlawful under current law, what has it -- what has Bradbury -- determined?

First, OLC has concluded that waterboarding, at least as practiced by the CIA, which isn't quite as barbaric as the Spanish Inquisition, is not torture under the federal torture act. Bradbury's testimony today -- in which he tried to distinguish CIA waterboarding from the torture variation practiced by the Japanese, the Spanish, etc. -- confirms this. More importantly, the 2004 Levin memo (disingenuously) construed the torture statute prohibition on infliction of severe physical suffering so that it would not cover waterboarding. And Bradbury's statement today expressly reaffirms OLC's adherence to that flawed 2004 interpretation of the torture act.

Second, according to the New York Times, in February 2005, DOJ issued another opinion, "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency," which allowed the CIA to "barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." That opinion was signed by Steve Bradbury. Later in 2005, DOJ realized that the McCain Amendment would become law, prohibiting conduct that shocks the conscience, and issued "another secret opinion, . . . declar[ing] that none of the C.I.A. interrogation methods violated that standard. . . . In the end, Mr. Bradbury?s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain?s Detainee Treatment Act would not force any change in the C.I.A.?s practices, according to officials familiar with the memo."

Thus, Bradbury has concluded that the CIA's waterboarding is not torture, and does not shock the conscience in violation of the McCain Amendment. So what, exactly, is he saying when he writes that DOJ hasn't decided that waterboarding "would be lawful under current law"? He means only that he has not yet had occasion to determine whether the CIA waterboarding violates the third of the three principal legal limitations -- the Common Article 3 prohibition on "cruel treatment," a limitation that DOJ accepted only when the Supreme Court forced its hand in the summer of 2006 in the Hamdan decision. Under the President's preposterous executive order construing Common Article 3, it's likely Bradbury would conclude that restriction not prevent waterboarding, either. He s imply hasn't had a chance to do so yet. [UPDATE: In his full testimony, Bradbury states at a couple of points that what remains uncertain is whether the techniques are lawful under the criminal implementation of Common Article 3 included in the 2006, post-Hamdan Military Commissions Act.]

Ana, I may very well be wrong about some of this -- Who can know until all the opinions are released? But everything about today's Bradbury testimony, written and oral, only serves to bolster my assumptions about OLC's views on waterboarding. Don't believe the hype: In light of his role as the Republican candidate, McCain had it within his power to once and for all end the shameful practice of CIA waterboarding -- and its other unlawful techniques. He chose not to do so.

Full post as published by Balkinization on February 14, 2008 (boomark / email).