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Anybody's GuessThe legality of water-boarding as work in progress.

By Dahlia Lithwick
Posted Friday, Feb. 8, 2008, at 5:39 PM ET
Michael Mukasey. Click image to expand.

It's been a banner week for water-boarding. This centuries-old practice of simulated drowning to extract false confessions and false testimony has really benefited of late from a good old legal reassessment and a smoking-hot PR campaign. In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.

Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.

That's how Americans have come to reconcile themselves to illegal warrantless eavesdropping and to prisoner abuse at Guantanamo Bay. It's why we're no longer bothered in the least by the abuse of national-security letters or extraordinary rendition or by presidential signing statements. Deny, admit, codify, then immunize. The law as quickstep.

What used to be an unambiguous legal test for torture—"conduct that shocks the conscience"—is hardly a useful bench mark anymore. How can anything shock the conscience after the vice president, in a parody of himself, crowed this week that "it's a good thing" top al-Qaida leaders underwent torture in 2002 and 2003—"a good thing we had them in custody" and "a good thing we found out what they knew." Even our conscience is a moving target. Water-boarding has gone from torture to a Martha Stewart slogan overnight.

After making it clear that they did, in fact, torture people, there were only two actions left to the Bush administration, and both were briskly accomplished this week: The first was to immunize the torturers. Enter the new attorney general, Michael Mukasey, with the promise that he would neither investigate nor prosecute the people who tortured, since they relied on (secret) Justice Department authorization to do so. The second was to establish clearly and unequivocally that the question of whether water-boarding was illegal in 1968, legal in 2002, illegal again in 2006, and perhaps legal again tomorrow will be determined by the president and nobody else. In secret.

Let me say that again, for the benefit of folks who believe this matter might be resolved by the passage of pending legislation to force the CIA to use only those techniques permitted in the U.S. Army Field Manual. It doesn't matter to this president what the laws say. FISA was a law once, too.

Listen to testimony this week from CIA Director Michael Hayden: "[I]t is not certain that that technique would be considered to be lawful under current statute." Compare it with the testimony of National Intelligence Director Michael McConnell: Water-boarding "is a legal technique used in a specific set of circumstances. You have to know the circumstances to be able to make the judgment." Contrast that with the words of Attorney General Michael Mukasey: I will not be drawn into "imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities." Seemingly the one thing they all agreed upon this week is that they have no real idea whether water-boarding is currently legal or illegal and no legal basis from which to decide, anyhow.

The only thing the Three Mikes did know beyond a reasonable doubt was that the legality of water-boarding has nothing to do with international treaties, secret legal memos, acts of Congress, or their personal interpretations of same. The claim on which they were all perfectly clear is that the legality of future torture will be determined by the president and the attorney general as the occasion arises. It will not be measured by any objective standard of conduct but will turn on "the circumstances" surrounding them (in McConnell's formulation) or the value "of the information you might get" (in Mukasey's). It will be a secret decision, made using shifting, subjective standards, for which neither the torturers nor the legal decision-makers will ever be held to account.

This is not simply the theory of a unitary executive at work; this isn't the notion that the president makes the law, and acts of Congress are legal elevator music. This vision of executive power is that the law not only emanates from the president but also ebbs and flows with his hunches, hopes, and speculations, on a moment-to-moment basis. What we are hearing now from senior Bush administration officials is that if the president thinks someone looks kinda like a terrorist and the information sought from him seems kinda worth getting, it will be legal to torture him. And it's legal no matter who justified it, regardless of the supporting legal doctrine, because, well, the president just had a feeling that the information would prove valuable.

That's not an imperial presidency. That's the kind of presidency Yahweh might establish. I'm sure there's some law professor out there who can make the legal argument that executive power in wartime encompasses even the reckless guesses and impressionistic whims of a single man, as they arise. At which point, that too will become an "open question" on which "reasonable people will differ." And the dance will begin again.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Attorney General Michael Mukasey by Alex Wong/Getty Images.
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Remarks from the Fray:

We all seem to want to discuss this as some dry, legalistic issue. I doubt that many of us can really emotionally visualize a situation where we and our loved ones are at risk. The question to me is would we condone the use of torture to protect our friends and families? I have heard from some that even if the results of torture would save a million lives it cannot be permitted. I find this troubling and probably not completely honest. Would the person that would prohibit torture be willing to trade places with some future victim whose death is preventable by information obtained by torture? Are those principles so strong as to say I am willing to become that victim? The answer when you are dry, safe and warm is probably very different than when you are faced with the reality of a situation.

Try as we might we cannot sanitize war and all that goes with it. It comes down to killing as many of the enemy as possible and minimizing damage to your side. Life loses value and the bounds of behavior loosen. Are we willing to vilify and prosecute those that use torture that results in information that prevents a future 9/11? The vast majority of the time I do not believe that the ends justify the means. At some point I am willing to accept that they do.

--foertschdg

(To reply, click here.)

Even if the Justice Department did pursue a criminal investigation of the illegal use of torture by American government personnel, there is no hope for a conviction. First, the Bush administration would use the "state secrets" doctrine to force the courts to throw out any cases. Second, administration officials would refuse to testify, thus making it impossible to prove who did what and under whose orders. Last, but not least, Bush will pardon all and sundry shortly after the elections in November. There is no way that he would be willing to bear the legal risk of allowing a thorough investigation to take place, and he can buy silence with the promise (or threat of withholding) of pardons.

--RobertStadler

(To reply, click here.)

Slate's queen of the far left barely makes it into the second sentence before condemning the tactic by stating flatly that it doesn't work despite clear testimony (for at least KSM) that it does and did.

Others commenting here have stated the point that our enemies in this war (and make no mistake this IS a war, no matter what Ms. Lithwick chooses to call it) do not take prisoners and subject them to a simulated death by drowning but real death by beheading. Of course that doesn't mean that we should use torture to gain information. No, what the enemy does to prisoners is no justification for this tactic. What the enemy WANTS to do to each and every one of us including you dear Dahlia... Well let's all think about that before we condemn limited use of this "centuries old practice".

--ABQGuy

(To reply, click here.)

So, 'an unambiguous legal test for torture', writes Ms Lithwick, is "conduct that shocks the conscience". Wow. That is unambiguous? What grammatical planet does Ms Lithwick live on? And what language does she speak there? What does the word 'unambiguous' even mean to her? And by her standard, what could possibly constitute an 'ambiguous' test for torture? 'Conduct that might, in some circumstances, shock the conscience,' perhaps?

Here's one to try on: "Waterboarding is torture." Hmmm. Ambiguous standard? Or unambiguous standard? You decide. I frankly can't tell what Ms Lithwick would think; and why she resists this simple 3-word sentence as a clear and truly unambiguous standard. If you want waterboarding to be torture, say so. It's not rocket science.

Then maybe you can stop dancing around the issue and playing 'gotcha' with well-meaning people.

--dajhilton

(To reply, click here.)

Honestly, a great article, right on target, and wonderfully spare but direct in its argument. I wish you hadn't diminished its force for me by your comment at the end, about President Bush's government being the kind of government Yahweh would establish. I am among probably billions of faithful who would believe that President Bush's government is precisely NOT the kind of government that God would establish, if God established governments on earth.

--dangerousbeanz

(To reply, click here.)

(2/11)