More on Waterboarding and Reasonable Reliance

Last week, I argued that the CIA waterboarders would not necessarily be entitled to the defense of entrapment by estoppel even if they relied on the Office of Legal Counsel’s insistence that waterboarding was legal. As I pointed out, the defense requires reliance to be reasonable — and a court cannot simply infer reasonableness from the fact that the erroneous advice came from an official source.

In the comments to my post, Geoffrey Corn asked an important question:

One factor in this analysis I think is unfortunately overlooked is the question of whether the CIA had a pool of experienced interrogators during this critical period of time. How do we use the “reasonable CIA interrogator” standard without full knowledge of the extent of interrogation training provided to these personnel. The CIA has traditionally not been in the interrogation business – they have been in the debriefing business. There is a world of difference between these two functions. If it turned out that the CIA personnel engaging in this conduct were not, as I think is assumed, well trained interrogators, but were instead relative novices in that function, how would it impact the “patently unlawful” analysis?

Geoff is absolutely right that the CIA waterboarders’ training is relevant to the reasonableness of their reliance on the OLC. Unfortunately for the waterboarders, Bush spokeswoman Dana Perino didn’t do them any favors yesterday when she attempted to justify — pitifully — why the Army Field Manual, which prohibits waterboarding, should not be extended to CIA interrogators:

In [yesterday’s] White House press briefing, spokeswoman Dana Perino defended the veto decision by citing the age of CIA interrogators. She said that they are well-trained “professionals” with “an average age of 40.” U.S. soldiers, on the other hand, are too immature to be trusted, argued Perino. That’s why they need the Army Field Manual:

“This is done at the CIA, and it is done by professionals who are given hundreds of hours of training, who are — I think General Hayden said an average age of 40; who are being asked to do very hard work in order to protect Americans.

“The Army Field Manual is a perfectly appropriate document that is important for young GIs, some so young that they’re not even able to legally get a drink in the states where they’re from.”

It is difficult to believe that the “hundreds of hours of training” the mature CIA waterboarders received didn’t include something about the illegality of waterboarding. After all, as Marty Lederman has pointed out, waterboarding — even the fun kind the CIA practices, which is supposedly nowhere near as bad as that practiced during the Spanish Inquisition — is illegal under a variety of federal statutes:

Even if waterboarding were not “torture,” as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur “within the special maritime and territorial jurisdiction of the United States” (which includes “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership”).

(ii) Common Article 3’s prohibition on all “cruel treatment and torture.”

and

(iii) The McCain Amendment’s prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would “shock the conscience” assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least “torture or its close equivalents.”

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise — but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself “has long considered waterboarding to be torture and a war crime.”:

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the ‘water cure.’ After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

So, to recap: (1) the CIA interrogators were mature and well-trained in interrogation; (2) waterboarding is clearly illegal under a variety of federal statutes; and (3) the U.S. has considered waterboarding to be torture and a war crime for more than a century.

Given all that, do we really believe that the CIA waterboarders reasonably relied on the OLC’s insistence that waterboarding was legal?