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Tuesday, November 06, 2007
Should Mukasey Agree to be Waterboarded before Deciding its Legality?
I just wanted to offer a quick remark apropos Howard's insightful post on the Senate hearings on Mukasey. Until Mukasey's testimonial caution re: waterboarding, I was reasonably pleased with the nomination of Mukasey for AG. Like many others, my fear about his candidacy materialized after listening to his comments, which suggested that he may have bought the "unitary executive on steroids" theory and was shy about saying waterboarding was torture. I've just learned (I guess a couple days late) that Jack Goldsmith's successor at OLC, Dan Levin, was apparently sufficiently concerned about the propriety of waterboarding that he arranged to have it performed on himself at a nearby Navy base. Jan Crawford Greenburg broke the story the other day on ABCNews. Marty Lederman has some choice reactions to the story. (H/t: Orin, who registers his displeasure with the continued saga of corruption of virtue in the OLC by White House flacks).
Importantly, before Levin could issue his new torture memo based on his findings, he was fired by AG Alberto Gonzales and replaced by someone who wouldn't otherwise trouble the Administration with any reservations about the use of waterboarding. Levin's experiences and undignified treatment at the hands of AlGo raise a few questions: to what extent should we expect government officials to be willing to experience that which we inflict on those we coerce for purposes of interrogation? If Mukasey's not willing to rule it out as torture, should he (or better, Cheney and Addington) have to experience it also?
And from a lawyer's perspective, is anyone else (aside from me) curious to see whether and what kind of release Levin signed or what kind of approval he had to secure to pull this experiment off? I can imagine how weird the Navy interrogator might have felt if he had to explained to his spouse how his day was. "Oh, nothing special really -- I just put the executive branch's guardian of the rule of law under water torture."
Update: Be sure to check out waterboarding.org for more info if you're uncertain about what's involved.
Posted by Dan Markel on November 6, 2007 at 01:53 PM in Current Affairs | Permalink
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Releases aside, when you torture someone that asks for it, it is a consensual. People do this stuff for sexual (or in this case political/legal) purposes all the time.
But, I don't think that undergoing such treatment advances the conversation. Levin (just like people into B&D or S&M) knew what was going on. He knew that his health was being monitored. He knew it was all a charade. There is no possible way that Levin, or anyone else, would experience the psychological terror that a real detainee would experience.
Strangely enough, few prosecutors are willing to spend a week in jail with the general population. They are also unwilling to spend an indeterminate amount of time in jail in a strange jurisdiction where nobody speaks their language. Sure, they can take a tour of a jail, but when it comes down to it, nobody wants the real experience of those they harm.
Posted by: S.cotus | Nov 6, 2007 2:36:32 PM
I'm just curious how far your reasoning cuts. Should supporters of progressive taxation all subject themselves to the top marginal rates? Should supporters of the legality of certain eminent domain takings have to give up their houses? I'd hate to see how you'd apply such a test with respect to the legality of abortion.
Perhaps you're not actually serious in your proposed method of evaluation of the legality of government action. But if you're just joking, then I can't help but wonder: Do you actually find proposals to waterboard Vice President Cheney funny? What a depressing notion; I'd hate to think that political "humor" has fallen to such a low state, especially among our professional scholars.
Posted by: Adam | Nov 6, 2007 2:51:58 PM
Adam, it's your comment that is really unworthy of serious reply but since I've appeared to invite it, I'll share my quick reaction.
To be clear, I made no mention that the legality of any policy should hinge exclusively on whether members of the executive branch are willing to experience the policy at issue.
The issue here is that waterboarding is physically dangerous, intended to be so, done in the name of the people under state action, and for most people, is an act quite outside their realm of experience, and so, rather strange. So if Congress passed a law that required waterboarding for every taxpayer, I'd think it's a good idea for members of Congress to know what it is that they are requiring. It's not like I think Cheney is a peculiarly good person to inflict pain on; it's that he and the other bulldogs in the administration seem to be of the view that this is a perfectly fine way to acquire information. I'm not proposing that Cheney be waterboarded for the heck of it. I'm suggesting that those who want to use state violence should have some fleeting familiarity with it before they dispense it casually. Nothing humorous about that.
Posted by: Dan Markel | Nov 6, 2007 5:29:55 PM
"The issue here is that waterboarding is physically dangerous"
Actually, I believe that the standard is not "physically dangerous" but, rather, whether it inflicts "severe physical mental pain or suffering," a term which, itself has a precise legal definition. 18 U.S.C. 2340.
That aside: while you disclaim the general applicability of your proposed means for qualifying executive branch officials from vouching for the legality of certain governmental conduct, I'm not sure why that's the case. You seem to set waterboarding apart from other governmental actions on the ground that it's " physically dangerous, intended to be so, done in the name of the people under state action, and for most people, is an act quite outside their realm of experience, and so, rather strange." From where you derived that criteria, I don't know.
But I still don't see how, under those criteria, waterboarding is so special a case that it requires government officials to be subjected to it prior to rendering a legal judgment. How about another example? President Bill Clinton authorized various military attacks during his tenure as President. Those missions were " physically dangerous, intended to be so, done in the name of the people under state action, and for most people, [were] an act quite outside their realm of experience, and so, rather strange." Are you suggesting that President Clinton and any of his officials lacking military experience could not themselves vouch for the legality of those missions under U.S. and international law?
Another example: The law sometimes justifies the police using tough (if not lethal) physical force to subdue a suspect. But are you suggesting that government attorneys seeking to vouch for the legality of that physical force should first be subjected to comparable force themselves? Where do you draw the line? Just around scenarios that end with Dick Cheney on a waterboard?
A final note: You suggest that the Bush Administration "dispense[d]" with those interrogation methods "casually." I'd be quite interested to learn of the evidence on which you rely in drawing the conclusion that the Administration's decision was "casually" made.
Posted by: Adam | Nov 6, 2007 6:42:54 PM
I think, Adam, you are building a strawman, calling it Prof. Markel's position, and then denigrating it. Perhaps I too misread Prof. Markel's post and comment (and Dan please don't hesitate to so state) but I think he is merely pointing out the irony that Levin, the only government official involved in the creation of the rules permitting waterboarding who is known to have been subjected to waterboarding, albeit voluntarily, was fired after doing so seemingly for the change in his position being waterboarded engendered. As such it does raise interesting questions as to whether those instigating implementation of rules permitting what many consider torture ought to be willing to do before instigating such implementation or at least whether those who are willing to undergo that which is being implemented should be excluded from the rule-making process. The government's behavior here seems to suggest that those who are so willing should not participate in the creation of the rules-an odd position at best.
And yes Dan, I too would be interested in seeing that exculpatory agreement/release if one were to exist.
Posted by: Jim Green | Nov 7, 2007 8:48:03 AM
Oy, Adam, as Jim points out, you're really missing the boat here. I wasn't trying to define torture, I was explaining what factors make me think (not even conclude--you forget entirely that my initial post was asking questions not stating unequivocal answers) waterboarding is something it makes sense for officials to have some fleeting experience with before being willing to use it in the context of coercive interrogations.
I also didn't say that members of the Administration casually made the decision to use waterboarding. The word casually occurs in the next sentence, where I was making a more general point: those in the business of using or ordering state violence should have some idea of what's involved with it before using it on others. It might well be that watching someone else be waterboarded up close would be a good way to acquire that familiarity. As a general matter, I was simply suggesting that it probably makes sense to have officials prepared to use force on others to ask themselves if they would agree to it if the shoe was on the other foot, or perhaps on the foot of someone else they care about: if this were my child or sibling who was suspected of having valuable information, would I support these methods of interrogation? That obviously isn't the exclusive factor on which the issue's legality turns, but in the context of deciding whether something is torture, it might be relevant information at least to its propriety.
Posted by: Dan Markel | Nov 7, 2007 3:31:36 PM
Dan,
The Bush Administration didn't "casually [make] the decision to use waterboarding," but they did "dispense [waterboarding] casually"? Oy, Dan, you're splitting hairs.
And again, while you state in your final comment that your position is merely that, "As a general matter, I was simply suggesting that it probably makes sense to have officials prepared to use force on others to ask themselves if they would agree to it if the shoe was on the other foot." Yet earlier you specifically declined to answer why the same standard should not apply in evaluating the legality or propriety of various policies regarding taxation or eminent domain. (Or, as I subsequently noted, the decision to go to use military force.)
Simply put, I seriously doubt that you actually endorse an across-the-board "shoe-on-the-other-foot" test for evaluating laws and policies. And good thing, too. If your rule were generally accepted, then the current field of presidential candidates would narrow considerably.
Posted by: Adam | Nov 8, 2007 10:06:06 AM
Adam, you're again inventing things I didn't write. So this will be my last comment in response to you.
In my earlier comment, I wrote: "I'm not proposing that Cheney be waterboarded for the heck of it. I'm suggesting that those who want to use state violence should have some fleeting familiarity with it before they dispense it casually." You then falsely implied that I said the Administration had casually made the decision to adopt waterboarding. I pointed out I made no such claim. I also made no such claim that the Administration has chosen to dispense waterboarding casually, as you claim in the most recent comment. I was making a general normative point: i.e., those who want to use state violence should have some fleeting familiarity with it before they dispense it casually. There was no intent to suggest that the Administration has in fact capriciously or uncritically adopted or dispensed waterboarding. (Others might hold that view; I don't have the evidence for it.)
And since I never suggested the "shoe on the other foot" test for all policies, and I offered reasons for why waterboarding is distinguishable, your last point is irrelevant. I suggested that for many people, the experience of waterboarding (what it is and what it does) is strange and outside their experience; the same is not true for taxation or eminent domain or even death through war or other means. We have moral imaginations that can contemplate what those might be like; we have rich social data points (whether through film, journalism, novels, etc) that portray what it's like to lose money or a loved one in war. What we were lacking, especially until quite recently, was any relevant broad cultural experience with waterboarding that would give us sufficient basis for moral empathy and then judgment. Its dangerousness and strangeness are the reasons why I suggested caution on the part of this (or any) administration; those features of waterboarding and their implications for credible judgment also explain why Levin's willingness to undergo was commendable, all things considered.
Posted by: Dan Markel | Nov 8, 2007 3:17:35 PM
"We have moral imaginations that can contemplate what those might be like; we have rich social data points (whether through film, journalism, novels, etc) that portray what it's like to lose money or a loved one in war. What we were lacking, especially until quite recently, was any relevant broad cultural experience with waterboarding that would give us sufficient basis for moral empathy and then judgment."
We may not have "broad cultural experience with waterboarding," but we do have broad cultural experience with rough interrogation. There's no shortage of books and movies on the subject. By comparing the very specific "waterboarding" on the one hand and the very general "lose money or a loved one in war" on the other hand, you're comparing apples and oranges. The reason why we have so little cultural experience with the former is because you drew the category so narrowly; the reason why we have so much cultural experience with the latter is because you drew the category so broadly.
Shall I propose a fairer comparison? Take, for example, the issue of eminent domain. Should a government official proposing to take a farm that's been in a family for many generations need comparable experience? After all, while we all may have cultural experience with respect to "losing money," very few of us have cultural experience with respect to losing the family homestead.
I know you've already essentially thrown up your hands and said "I'm through with this," but I'm quite curious to see your thoughts on that hypothetical.
Aside from that, I'm not sure how to resolve two of your comments, taken from above (in chronological order):
1. "It's not like I think Cheney is a peculiarly good person to inflict pain on; it's that he and the other bulldogs in the administration seem to be of the view that this is a perfectly fine way to acquire information. I'm not proposing that Cheney be waterboarded for the heck of it. I'm suggesting that those who want to use state violence should have some fleeting familiarity with it before they dispense it casually."
2. "I also made no such claim that the Administration has chosen to dispense waterboarding casually ... ."
I think your later comment might slightly re-write this thread's history.
Posted by: Adam | Nov 8, 2007 10:27:02 PM
I don't think it's hard to reconcile statements 1. and 2.
The first one's first sentence points out that Cheney and others in the Admin have concluded that waterboarding is an acceptable way to acquire information. Using the phrase bulldogs to describe Cheney and the others doesn't require any inference that they either adopted or dispense waterboarding in a casual manner. It suggests that they are tough, determined, even aggressive; but that's not to suggest they blithely torture people. (There may be evidence of that, but I'm not privy to it.) The second statement simply encapsulates, again, the point I just made.
Your eminent domain argument seems like a frivolous comparison. The victims of ED have recourse to get courts to enforce their rights, such as they are, prior to the taking in all but emergencies. It's not the case that waterboarding victims can enjoin the executive branch from torturing/interrogating them. That's why I thought this case is somewhat unusual. Your bomb-dropping hypo was a bit more plausible; it may mean that leaders who authorize the dropping of bombs should have some experience with what war-induced deaths are like. My sense is that most leaders acquire that sensitivity prior to taking office since I think most educated people learn about the horrors (and in some cases, the necessity) of war. By contrast, I could imagine that one, without ever seeing or being victim to waterboarding, may not truly understand how torturous it is. That's the simple point I was trying to make, which I think other readers got.
Posted by: Dan | Nov 8, 2007 10:59:42 PM
Dan,
This is getting a bit silly. Again, this is your summary of the reason why you suggested that Cheney and Addington would be well-served by a waterboarding: "I'm suggesting that those who want to use state violence should have some fleeting familiarity with it before they dispense it casually."
If you now say that the Administration did not "dispense with [waterboarding] casually," then the remainder of that sentence (and the reason why you suggested the usefullness of waterboarding Cheney) is moot. If Cheney and other members of the Administration did not dispense with waterboarding casually, then why are you recommending that they have more than "fleeting familiarity" with it? According to your quoted sentence, experience is only needed so as to avoid casual enforcement.
Second, with respect to the special-case status of waterboarding, I think your distinctions fail. You can't enjoin an eminent domain taking altogether; you can merely ensure that you receive just compensation. (Surely you're not suggesting that the problem with waterboarding is that they can't sue for damages.) In both scenarios, then, the target of government action suffers a harm for which (1) compensation likely will not actually compensatve for the target's full non-monetary loss, and (2) the government official undertaking the action likely does not have full first-hand (or even cultural) experience sufficient to empathize with those on the receiving end.
On your empirical point -- i.e., the President, his Administration, and those involved in enforcement of coercive interrogation -- have greater "understanding" of the the effects of war than on the effects of coercive interrogation -- well, that's a point on which we'll just have to agree to disagree.
As S.cotus succinctly noted above, our government leaders often undertake actions that cause real harm to persons (either deservedly or undeservedly), despite the fact that those leaders may well not have first-hand experience with the harm imposed. There's the death penalty and long-term incarceration; elimination of paternal rights; deportation; eminent domain takings of family homesteads; high-casualty military missions (Truman's ordering of the use of the atomic bomb comes to mind). You identify waterboarding as a "sui generis" case with respect to the "shoe-on-the-other-foot" test, but the distinctions you purport to draw show that, truly, it is not.
No doubt, some people may get a dark chuckle at the notion of Mukasey on the waterboard -- "or better," as you suggest, "or better, Cheney and Addington". Your singling them out as targets for waterboarding is deeply disappointing, but perhaps that's just a sign of our political times.
Posted by: Adam | Nov 9, 2007 8:43:43 AM
Incidentally, my accidental use of "or better" in the second-last sentence was purely accidental; purely non-substantive.
Posted by: Adam | Nov 9, 2007 8:47:34 AM
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