How Low Can They Go?

[ProSense]

Sunday, November 04, 2007

How Low Can They Go?

Marty Lederman

Last evening a friend asked whether I was going to blog about the really rather unbelievable story Jan Greenburg broke yesterday about Daniel Levin and waterboarding. (Unbelievable in the sense that, when someone described it to me, I assumed he was kidding -- trying to come up with something that would top the Ashcroft hospital story to see if he could get a rise out of me. I obviously have not learned my lesson that in this Administration, when it comes to the law, one should assume that nothing is beyond the pale.)

<...>

What can one add to this? And what does it tell us that the story has been met with a collective yawn from the rest of the media? We have become so accustomed, so inured, to what would once have been unthinkable, that a story such as this, right out of a bad B-movie, is seen as business-as-usual, dog-bites-man.

I have been reluctant to say such things before now, but those stubborn facts keep adding up, and, if the Greenburg story is right, it's hard to resist the simple conclusion that Gonzales and others were engaged, not only in an effort to completely distort the proper function of OLC (see generally Jack Goldsmith's book), but also in a conspiracy to violate the Torture Act and the War Crimes Act (which at the time prohibited such conduct). When responsible, thoughtful lawyers -- loyal conservative, Republican lawyers, mind you --- told them that what they had approved was unlawful, they got rid of the lawyers, and concocted alternative, and patently ridiculous, legal advice (and rewarded the lawyer who was willing to sign his name to that advice).

I'm trying to avoid hyperbole, honest. But how is this not a huge scandal, in form (but certainly not in degree) directly analogous to what we, at Nuremburg, prosecuted German Justice Department lawyers for having done? (And no, I am am not saying that the crimes committed here are analogous to those approved by German lawyers, so please don't go there in the comments thread.)

One other thing: I am not the only person who thinks this is so outrageous. Think about who must have leaked this story to Jan Greenburg. I am reliably informed by those who know him that it wasn't Levin. (Greenburg notes that he refused to comment for the story.) But it must have been someone else high up in DOJ at the time who undoubtedly does not relish the idea of revealing confidences, but who was aghast at what transpired, and sickened when Judge Mukasey and the Senate this week effectively whitewashed and ratified our torture regime.

DoJ Official Experienced Waterboarding, Told WH It Is Illegal, Was ‘Forced Out’

[ray of light]

1. Moderate Dems, Moderate Repubs should all vote against torture

I think it's immoral that anyone even questions this, but especially the 'religious 'right'' shouldn't be allowing torture and waterboarding.

[movonne]

2. Everyone in this country should vote against this....I feel that all

the ones who are for it should have it done to them and see what they think then...

[ProSense]

3. he JAGs Set the Record Straight

The JAGs Set the Record Straight

BY Scott Horton
PUBLISHED November 4, 2007

Michael Mukasey in his testimony and written responses admits of much uncertainty as to whether waterboarding is illegal. This is scandalous. There is no issue on the subject. In connection with consideration of the Military Commissions Act of 2006, the four TJAGs testified that the practice of waterboarding constituted torture and was a criminal act not subject to qualification or privilege. And now four former TJAGs write to support the view taken by their serving colleagues:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue—but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture—no less than wanton killing—is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact—as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule—the law—has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise—or even to give credence to such a suggestion—represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.

Sincerely,

Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

[Solly Mack]

4. K&R