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Under Dire Circumstances, It's Not "Torture" When You Torture

By Jack M. Balkin

As Marty has detailed in multiple posts (including below), the Bush Administration has argued that water boarding is not "torture," and it has argued that water boarding is not "illegal" if a Justice Department official so opines.

In conjunction with those arguments, the Bush Administration also appears to suggest that whether water boarding constitutes "torture" depends not only on the water boarding itself but on the urgency of the situation. By this reasoning, a water boarding session under urgent circumstances is not "torture," while the same water boarding under less dire circumstances is "torture."

The Administration's position is described as follows:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal ? not torture as critics argue ? and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said....

Waterboarding involves strapping a suspect down and pouring water over his cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world....

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said. Appopriate members of Congress would be notified in such a case, he said.

"The president will listen to the considered judgment of the professionals in the intelligence community and the judgment of the attorney general in terms of the legal consequences of employing a particular technique," he said. "The president will listen to his advisers and make a determination."

They do not explicitly say that torture isn't "torture" (that water boarding isn't "torture") when an attack is imminent, but that is the strong suggestion in their position.

If that is indeed the suggestion, it is obviously wrong. Torture is torture--pulling out nails is torture, cutting body parts is torture, water boarding is torture--regardless of the perceived need for engaging in the torture (and regardless of whether a JD official issues a memo saying that it is not "torture").

The correct position--the position that respects plain meaning, American ideals, and the law--is for the President to assert this:

"I indeed ordered interrogators to engage in 'torture,' which I acknowledge is illegal, but I deemed it absolutely necessary under the circumstances, and I am prepared to face the legal consequences of my decision."

Full post as published by Balkinization on February 08, 2008 (boomark / email).