"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

Slate's blog on legal issues.
April 23 2008 11:38 PM

"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

The accounts in recent days of the Vice President and several agency heads and other high government officials (Ashcroft, Rice, Powell, Tenet, Gonzales, Rumsfeld, et al.), convening meeting after meeting at which they carefully and dispassionately reached a consensus that the United States should establish a systematized, bureaucratic regime of officially sanctioned waterboarding and other plainly proscribed war crimes have struck me as old news -- not terribly surprising:  After all, last year the President himself publicly boasted of having personally authorized the CIA black sites program and its "enhanced interrogation techniques," which we know to have included waterboarding, hypothermia, stress positions, severe sleep and sensory deprivation, threats to detainees and their families, etc. -- all conduct that is prohibited by several legal norms and that this nation has traditionally prosecuted as war crimes when engaged in by others.  If the President authorized it, well then it should come as no shock that there would first have been principals meetings at which this all-important program was discussed and recommended.

 What is alarming -- grotesque, even -- is not that such meetings occurred, but that, as far as we know, no one at such meetings interrupted the flow of discussion to point out the obvious --

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-- continue reading at Balkinization .

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel 2009–10 and an attorney advisor in OLC 1994–2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.