Judge Mukasey Can (and Should) Answer the Question

[ProSense]

Monday, October 29, 2007

Sorry, Ben, But Judge Mukasey Can (and Should) Answer the Question

Marty Lederman

Over in the New Republic, Ben Wittes agrees that it's virtually inconceivable that waterboarding is not torture, but nevertheless argues that Judge Mukasey would be within his rights in refusing to say so in response to Senate questions:

It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

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Ben's argument, in essence, is that Mukasey cannot responsibly repudiate OLC legal advice that he has not seen. I think that's mistaken, for several reasons.

First, as I've explained previously, there's no real risk of criminal exposure for the CIA personnel who waterboarded based on OLC's advice. Second, the analysis should not be classified in the first instance -- as I've argued several times previously here, there's no real justification for keeping secret our government's official legal advice about whether waterboarding is lawful or not. But third, and be that as it may, there's nothing stopping DOJ from showing Judge Mukasey the OLC opinions now. Nothing. (Presumably he has the requisite security clearances from his work on terrorism trials -- or could obtain such clearances ASAP.)

Fourth, the basic core of the OLC advice about waterboarding is already public. It can be found right here, in the final paragraph of section II(2) of a public OLC opinion, a paragraph that was obviously written with waterboarding specifically in mind, and one that is manifestly and egregiously wrong as a matter of law on the term in the torture statute most pertinent for these purposes: "severe physical suffering." I've already written at length on this point. I'll reprint my analysis below. (In retrospect, my rhetoric there was a bit overheated -- but forgive me, I was outraged.) The bottom line is that the OLC legal analysis in support of waterboarding is indefensible -- I think Ben would agree -- and Judge Mukasey should simply say so.

Which brings me to the final and most important reason why Judge Mukasey can answer the question -- even if DOJ does not provide him with the classified OLC memos. There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment. After all, as Henry Hart stressed, even legal rules that appear straightforward contain seeds of ambiguity, and raise difficult questions of application. Does a "No Vehicles in the Park" law prohibit a baby stroller? A statute of a tank? Roller skates? Bicycles? A wheelchair? An ambulance? (See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958); Lon Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 537 (1994); Pierre Schlag, []No Vehicles in the Park, 23 Seattle U. L. Rev. 381 (1999).)

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[gratuitous]

1. And here I thought the GOP was the party of right and wrong

You know, some things are always right, and some things are always wrong. The Daddy Party that knows best, law and order, all that stuff. But when you ask them about their own conduct, the sophistry just oozes out of their pores as they parse every sentence, question the plain meaning of every last word, and then turn around and laugh about Bill Clinton saying his answer depends on what the meaning of "is" is.

At least Clinton was honest about his parsing of the question, and gave his interrogator a chance to clarify. These rats and weasels simply assume a meaning totally out of context of a question, lie, then claim later that the question they were asked didn't mean what it was plainly asking.

[OHdem10]

2. It was reported and discussed on Fox tonight that the

Congress has had two opportunities to vote to ban waterboarding.
They have never voted to ban waterboarding.

It would appear no one has an answer. Me thinks those on the Hill
know that in extreme cases--extreme measures might be warranted.

It might be interesting to find out how each Senator and House Member
actually stands on the issue.

Just thinking out loud?

[riderinthestorm]

3. Can you clarify what you mean by this statement?

"Me thinks those on the Hill know that in extreme cases--extreme measures might be warranted."

The members of Congress KNOW that torture produces shitty intel so I don't understand why you believe Congress has to keep waterboarding - torture - on the table for "extreme cases".

This "extreme measure" isn't effective so why keep it on hand for any purpose? I don't get your position. Keeping waterboarding as an option is only effective to demonstrate to the world what jackasses Americans have become since 9-11 under this monstrous pResident.