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May 07, 2009


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Prof. Harcourt,

I think you misstate the question in the 2d half of your post. You state, "The central question in this area, as I see it, is how come the United States government has prosecuted individuals for waterboarding in the recent past and whether that should affect our view of the propriety of immunizing everyone involved now." Beyond mixing the issues of this case, you also miss the fundamental question: if prosecutions were to proceed against the interrogators, under what statute would the charges come? The focus should first be on the interrogators themselves because if their conduct was not criminal it seems impossible for the memos that recommended that conduct to be in anyway criminal. Please let me know if there is any other theory of liability.

So far in this debate, it has been going on in many places on the web, many straw men statutes have been proposed as the source of criminal liability. In this case, you attempt to analogize to Lee without either referencing an actual statute and describing how it applies in this context or acknowledging that foreign citizens outside of the U.S. are generally not considered to have civil rights under our constitution. Both are necessary. As, too, would be any attempts to analogize to waterboarding prosecutions following WWII.

The most obvious source for criminal liability is 18 U.S.C. 2340. This is also the statute that was interpreted in the memos. I would suggest you begin here. If you can propose a plausible theory of criminal liability, I would be greatly appreciated.

The debate about the memos has actual involved three debates: one legal, one moral, and one pragmatic. Too often, these debates have run together at a determinate to the proponents of many arguments. While relevant, I leave the pragmatic question (is torture effective?) to more empirical investigators. Personally, I find the moral question easy -- much of what was done violated the dignity of the victims and directly damaged my dignity as an American citizen. The third question, the legal one we as legal scholars are the experts on, is in my mind also an easy one -- no criminal liability because no intent to cause the pain and suffering required. What troubles me is that the law permitted these techniques and if Obama were to change his mind, they would be legal to use once again.

Todd Henderson

A few off-hand responses:

1. Police using torture to extract confessions for crimes is a shaky precedent for condemning a military policy designed to prevent another terrorist attack in the US. A simple application of the Hand formula shows how what might be OK to prevent a nuclear attack in NY should not be OK to find out who held up a 7-11. Different rules apply in war. That is why killing someone in Iraq with an M-1 tank is OK, even if they posed no real threat to the tank.

2. Criminalizing lawyers for giving advice is a horrible idea. If there is blame to be had here, it falls on the president.

3. Is it irrelevant that the Congress seems to have been briefly completely on the use or potential use of these techniques? http://online.wsj.com/article/SB124174688873899443.html. It may not only provide a democratic justification for the actions, both by lawyers and CIA agents, but also creates the perception that this is just dirty, hypocritical politics.


Harcourt states, "The central question in this area, as I see it, is how come the United States government has prosecuted individuals for waterboarding in the recent past and whether that should affect our view of the propriety of immunizing everyone involved now."

Yes, let's do. Your problem is that past examples of waterboarding differ in very important ways from the US's recent uses.

(1) In all the past cases (that I've seen), the victims of waterboarding were either civilians or POWs. Both civilians and POWs are protected to a far greater degree than detainees are protected by the US Torture Statute. In layman's terms, you can do very little to civilians and for POWs you cannot mistreat them. For our detainees, you cannot use severe pain (physical or mental) against them. (note: these are the exact definitions but serve well enough for this discussion). As such, the historical waterboarding examples had a much lower standard to trip to become illegal/criminal.

(2) The waterboarding from the historical examples (Philippines, Japanese POWs, and Texas) was far more severe than the waterboarding approved by Yoo/Bybee. Read "Drop by Drop: Forgetting the History of Water Torture in U.S. Courts" and the situations its cite. What you will find is that the waterboarding examples involved the forced swallowing, ingestion, and inhaling of the water leading to unconsciousness and bloated organs (which causes very severe pain and threat of injury or death). The US method on the hand was specifically designed to prevent any water from entering the lungs or main body organs. While it is true that the recent US method is still harsh, it is quite different from the waterboarding that the US has prosecuted in the past.

These two reasons on their own cast great doubt on the assertion that "we have prosecuted others in the past for waterboarding and therefore the current waterboarding is illegal/criminal."


Bleh, forgive the typos in my post. One bad one is in paragraph (1). It should say that the standards I mention "are NOT the exact" standards.

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