No Need to Fret About Waterboarding: It's Merely a Psychological Ploy

Marty Lederman

OK, it's the Wall Street Journal editorial page, so one has to expect that nothing's beyond the pale. But still. Today's apologia for torture is a bit much.

The basic thrust of the editorial, not surprisingly, is that the techniques the Administration approved for the CIA (and at GTMO in late 2002), and the legal limbo constructed by the Justice Department and DoD (in which the President's constitutional authorities, and "necessity," justify violations of federal criminal laws, and in which degrading and humiliating treatment is lawful), did not "migrate" to Iraq and lead to abuses there -- indeed, the evidence apparently is "overwhelming" that there was no such seepage.

But that sort of blinking at reality is common by now -- as are the absurd accusations that the Administration's critics are arguing that all Al Qaeda detainees should be treated as POWs, and that we're "perverse[ly] conflat[ing] the amputations and electrocutions Saddam once inflicted at Abu Ghraib with . . . any authorized U.S. interrogation techniques." Those are classic straw-man arguments. (Just to clarify: We don't think that Al Qaeda terrorists are entitled to POW protection. And no, Dick Cheney is not as bad as Saddam Hussein -- or Stalin. Got it?)

What's more novel about this editorial, and more audacious, are two other things:

First, the editorial complains that the Vice President's proposed exemption to permit the CIA to use cruel, inhuman and degarding treatment is too narrow: It shouldn't make any difference, reasons the Journal, "which department is doing the interrogating," and military interrogators should have similar leeway Although I admire the WSJ's recognition that a detainee's fate should not depend on which U.S. agency is paying his interrogator's salary, the Journal apparently is not aware that many of the CIA's techniques -- namely, assaults, threats, and cruelty and maltreatment -- would be criminal (under the UCMJ and federal assault statute) if performed by the military. Oops.

Second, the editorial refers to the most extreme CIA-approved techniques -- expressly including waterboarding -- as "psychological techniques." Gotta give 'em credit: That's certainly one way to look at it. I suppose I was being unimaginative in thinking of mock burial, and of the "water cure," as assaults, and sadistic threats of excruciating death -- in truth, we've merely been trying to psych 'em out: We're jus' keeding!.

[UPDATE: Andrew Sullivan, not surprisingly, was similarly stopped short by the WSJ's trivialization of waterboarding -- and his post is illustrated!]
Posted 1:38 PM by Marty Lederman [link]