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How Justice Erred on Waterboarding

By:  Sheldon Whitehosue
Providence Journal

FOR THE FIRST TIME, the Department of Justice has announced it is investigating one of the most astounding failures of legal scholarship in its history: how waterboarding, historically recognized as among the worst forms of torture, came to be deemed legal and authorized for use in Central Intelligence Agency interrogations by DOJ’s Office of Legal Counsel (OLC). President Bush’s recent veto of a ban on torture, a measure I co-sponsored and fought for, makes this inquiry all the more urgent.

As a former U.S. attorney, I’ve seen first hand the respect in America’s legal community for the OLC, and the trust in its advice throughout DOJ. This office, the former home of two sitting U.S. Supreme Court justices, was renowned for its probity, its independence and its scholarship. Jack Goldsmith, a former head of the OLC, testified before our Senate Judiciary Committee that “[m]ore than any other institution inside the executive branch, OLC is supposed to provide detached, apolitical legal advice. And it has an honorable tradition of providing such advice to a remarkable degree.” How could the best and brightest of DOJ have overlooked its own precedents to approve this sordid practice? Under the Bush administration, something went terribly wrong.

In 2002, John Yoo of the OLC drafted a memo, later approved by OLC Assistant Atty. Gen. Jay Bybee, which reads, in part: “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death . . . .There is [a] significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” This standard was taken from, of all things, health-care reimbursement law, not from precedents regarding torture. And there were plenty of precedents concerning torture, and waterboarding in particular.

Waterboarding was used by the Spanish Inquisition, by the Khmer Rouge in Cambodia, by the French in Algeria, by the Japanese in World War II and by military dictatorships in Latin America. The technique ordinarily involves strapping a captive in a reclining position, heels above head, putting a cloth over his face and pouring water over the cloth to create the fear of drowning. Sen. John McCain (R.-Ariz.), held captive for more than five years by the North Vietnamese, has said this of waterboarding: “It is not a complicated procedure. It is torture.”

For decades, the U.S. government said the same thing, initiating war-crimes prosecutions against Japanese soldiers who waterboarded American aviators in World War II and condemning the use of water torture by U.S. soldiers in the Philippines at the turn of the 20th Century. This substantial body of precedent has been documented by Evan Wallach in the Columbia Journal of Transnational Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to “subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions.” The sheriff and his deputies were convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff: “The operation down there would embarrass the dictator of a country.”

How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. appeals-court case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?

The torture memo is part of a disquieting pattern at the OLC. As a member of the Senate Intelligence Committee, I have been able to review secret OLC opinions on the warrantless wiretapping program. Those opinions contained several deeply troubling legal theories, which I was eventually able to have declassified.

Simply put, those theories are: The president is not obliged to follow executive orders; Article II of the Constitution gives the president the authority to determine what his Article II powers are; and DOJ is bound by the president’s legal determinations. These theories, issued in secret, are breathtaking in scope. They argue for an executive outside the checks and balances of the law. They erode the balance of powers on which our system of government was founded, defying its very underpinnings.

In the hothouse of ideology that the OLC appears to have become, conditions were ripe for abuse. OLC opinions were written in secret, protected from public scrutiny, peer review and critical analysis. The appointees were ideological. The results have been devastating. And the failure of scholarship in the OLC’s analysis of torture suggests that the answer was preordained. By whom, one wonders. The investigation now under way by the Office of Professional Responsibility should help us better understand what the OLC has become, and what now must be done to reclaim this great institution.

Sheldon Whitehouse, a Democrat, is the junior U.S. senator from Rhode Island and a member of the Senate Judiciary and Intelligence committees.