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How Can the Legality of Waterboarding Depend on the Circumstances?

By Jack M. Balkin

Senator Biden just asked the Attorney General how it could be that the legality of waterboarding depends on the "circumstances," as Mukasey wrote in his letter. Mukasey's response was revealing: He pointed to the "shocks the conscience" test under the Due Process Clause and the McCain Amendment, under which, Mukasey argued, the "cruelty" of the technique must be weighed against the potential benefits. (For more on the "shocks conscience" test, see David L.'s post here, and part 2 of this post of mine.)

Senator Biden did not understand how such sliding-scale variables could affect whether the technique is torture or not. Mukasey began to respond that he was not talking about the torture statute. He plainly thought the only relevant question was the "shocks the conscience" test. But that more fact-specific test is only relevant if one has already concluded that the broader, and more unequivocal prohibition of the Torture Act is inapposite.

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not "cruel treatment" under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey's letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where "current law" would (and would not) prohibit waterboarding.

Mukasey apparently has concluded that OLC was correct that waterboarding is not torture because it does not entail physical suffering of "extended duration or persistence" (an untenable theory I discuss here).

Full post as published by Balkinization on January 30, 2008 (boomark / email).