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September 22, 2006

Waterboarding Allowed?

Mary Lederman's done what I haven't -- actually read the language of the compromise.

This is perhaps more of a victory for Jacksonian pragmatists than we thought:

More important is the bill's definition of "serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering - and the prospect of ending such suffering by telling one's interrogators what they wish to hear - is the whole point of using such techniques in the first place. But remarkably - and not accidently - the bill's definition would not cover all such actual "serious physical suffering."

The definition would require, for one thing, a "bodily injury" - something that would not necessarily result from use of the CIA techniques - even though one can of course be subject to great physical suffering without any "physical injury."

What's worse, such physical injury would also have to "involve" at least one of the following:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

As you can see, this definition simply does not cover many categories of actual serious physical suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.

The result, unfortunately, is a very constrained conception of what constitutes "cruel treatment" - a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide.

He's obviously against this. I'm delighted.

St. Andrew of the Sacred Heart-Ache is chagrined, appalled, gob-smacked, and in all manner of ways very put-out.

Hmmm... Not that it's important, but we know how Andi turns on former heroes who break his heart.

Is John McCain now going to get the full hell-hath-no-fury treatment? Fingers crossed!

The Senators' Understanding... seems to be that waterboarding is prohibited:

"The deal sets more stringent standards for what constitutes a felony under the War Crimes Act, which a Senate aide close to the negotiations said would bar waterboarding to simulate drowning and other extremely harsh interrogation techniques."

Lederman addresses this, though (as does Sullivan). Since this is the gray area the compromise does not address, it is possible the President has one understanding and the Senators have another.

Of course, a gray area is not clear authorization, either. But there seems to be wiggle room.

The President can push the agreement more to his understanding with a signing statement and by using Executive Orders to further refine and define the agreement, as the agreement expressly contemplates.

I doubt he'll claim waterboarding is permissible. He may, however, vaguely state that interogations techniques producing a great deal of "discomfort" due to "involuntary bodily reactions" are permissible, though.

It's hard to prosecute someone under a vague law in any event. The fact that the law now seems to permit a great deal of coercion should help protect CIA interrogators from prosecution. If the law permits A, B, C, and D, it's hard to argue a vaguely worded law outlaws the similar practice of E.

Would someone be forewarned by the law clearly that they're committing a crime by using technique E? Without this agreement, perhaps. But with the agreement permitting A, B, C, and D, it's harder to argue that waterboarding is illegal.

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posted by Ace at 09:05 PM

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