Is Waterboarding Torture? Try it Yourself!
Wow! Like Marty Lederman, I really thought this story was from The Onion. But, it now appears that the Acting Head of OLC, Dan Levin, volunteered to undergo waterboarding in an effort to inform his legal opinion as to what qualifies as “torture.” On the one hand, I think this is another useful reminder that many who’ve worked for the government since 9/11 take the cries and controversy surrounding U.S. detention policies seriously. They make decisions that, while controversial, they believe are consistent with our legal system and the country’s best interests. It says something that Mr. Levin went to such lengths to inform his views (even putting aside the fact that how he experienced the technique would likely differ dramatically from those without assurances of the outcome). On the other hand, I take this story as further evidence of how far down the rabbit hole we’ve gone. I’ve a hard time reading these stories and still taking seriously the legal arguments that waterboarding is not prohibited as a matter of U.S. law (and, here, I’m just talking about legal arguments; there’s an entirely separate debate about waterboarding’s propriety from a moral or ethical standpoint that I think has more substance to it on both sides). I’m not a rational choice devotee, but even I am wondering when a cost-benefit calculus comes into the Administration’s continued obfuscation on whether waterboarding is torture. Does the United States really get that much more of a benefit from the continued availability of waterboarding as one of its aggressive interrogation techniques than the political costs stories such as this impose on the U.S. position vis-à-vis our allies, not to mention trying to retain a moral high ground in the war on terror (difficult as that may be post-Abu-Ghraib)? Indeed, does there remain that much of a benefit if it turns out, as alleged, that the Administration hasn’t waterboarded anyone in the last several years-—doesn’t that suggest the current fight is really more about avoiding legal liability for past acts than protecting national security going forward?
In any event, the story certainly makes suggestions like this letter to the editor look more serious. Indeed, if someone in OLC would do it, why shouldn’t Michael Mukasey clear up his own ambiguity on the waterboarding practice by trying it out for himself, before, or even once, he becomes Attorney-General. Certainly, those suggestions have a lot more force than they did before it became clear that this was a real option.