What is the legal basis for claiming that torture, and waterboarding in particular, is illegal under US law?

Well, there are many reasons why waterboarding is an illegal form of torture under US law. To begin, the United States is a signatory of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under Article II of the US Constitution, treaties ratified by the Senate have the force of law.

Here's in the text of the UN Convention regarding those punishments and treatments which are prohibited:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

US law also expressly makes torture illegal. Pursuant to 18 USC 2340A torture committed outside the United States can be prosecuted by the Federal Government if the alleged torturer is an American citizen, or if a non-citizen accused of torture is within the territory of the United States. For purposes of that law, torture is defined as follows:

As used in this chapter—

1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; 2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

...U.S. military personnel and U.S. nationals to commit war crimes as specified in the 1949 Geneva Conventions. War crimes under the act include grave breaches of the Geneva Conventions. It also includes violations of common Article 3 to the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; … outrages upon personal dignity, in particular humiliating and degrading treatment.

In addition, in war crimes trials following WWII, US prosecutors charged and convicted former Nazi and Japanese officials of war crimes for employing waterboarding as a means of interrogation. As one example, in 1947 Yukio Asano, a Japanese officer, was charged with a war crime for waterboarding a US civilian during the war. And Nazi and Japanese war criminals are not the only people who have been tried and convicted of torturing people for waterboarding. It has also happened right here in the United States, as this editorial in this weekend's Washington Post by Evan Wallach, a former military JAG lawyer demonstrates:

[Waterboarding] is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.

The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death." [...]

... As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture.

Finally, a former Bush Department of Justice official Daniel Levin, who had himself waterboarded to determine if it could be considered torture, was able to determine from his experience that waterboarding indeed satisfied the definition of torture and was illegal. Indeed, he documented his experience and his legal conclusion in a memo filed with the Justice Department. For his trouble he was forced out of the DOJ when Alberto Gonzales became the Attorney General. Now, one can twist and turn all you like as to whether all these precedents and examples are sufficient reason to find waterboarding illegal under US law, but it seems clear to me that waterboarding does fit the definition of torture under the UN Convention, and under the provisions of 18 USC 2340A and 18 USC 2441. Since the US is a party to the UN Convention, the prohibitions against torture contained therein have the force of law in the United States. Certainly the former legal precedents which indicate the US military and US judges have determined waterboarding to be an illegal form of torture only cement that conclusion. For Judge Mukasey or anyone else to claim that he cannot say whether waterboarding is illegal is simply an exercise in prevarication or rank ignorance regarding the state of the law.

What about Confederate Yankee's claim that waterboarding isn't illegal because Congress has never "specifically" made it illegal? Well, as I intend to show that is a dubious and fallacious argument, at best.

To be clear, this is the first time I've heard of any rule of statutory construction which provides that a court, in applying the law in a case before it, should look to what a legislative body didn't enact after the fact in order to interpret a law that it had previously enacted. Although courts will look to the legislative history of a statute where there is a need to determine how it applies to a specific set of facts, this is the first time that I've ever seen it suggested that a court should look to non-action by a legislative body to interpret a law already on the books. Quite a novel approach to statutory interpretation, but one which I doubt Confederate Yankee has researched or considered fully. If he had, he'd have realized it has no basis in the law.

As just one example, let me refer you to garden variety state laws prohibiting murder. If you look at any of them I believe you'll find that they do not specifically list the methods the use of which would be considered murder. That is, like the US torture law at 18 USC 2340A, and the War Crimes Act of 1996, 18 USC 2441, most states define murder broadly, not limiting it by weapon or other method used by the alleged murderer to cause the victim's death. Here's a typical murder statute from Alabama which should prove illustrative:

§ 13A-6-2. Murder.

(a) A person commits the crime of murder if he or she does any of the following:

(1) With intent to cause the death of another person, he or she causes the death of that person or of another person.

(2) Under circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.

(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.

(4) He or she commits the crime of arson and a qualified governmental or volunteer firefighter or other public safety officer dies while performing his or her duty resulting from the arson.

First of all, please note that the statute is very non-specific regarding what constitutes murder (except for the felony murder provisions in subparagraphs (3) and (4) which constitute a special case because they don't include the specific intent required by your more mundane form of murder described in subparagraph (1) above). Thus a person can be tried for murder if they use a gun, a knife, poison, or even if they simply abandon a wounded individual to his or her death, so long as they had the requisite intent to cause that person's death or acted knowing that his or her death was likely to result as part of their failure to act. Under the theory proposed by Mr Confederate Yankee, the Alabama legislature's failure to enumerate all of the specific circumstances which might constitute murder, would require a Court to consider that "legislative non-action" in determining whether any particular murder charge is valid. This is, of course, a perversion of the principles the courts apply when they do interpret the law.

Statutes, and particularly criminal statutes, are written broadly by legislatures and by international bodies because the authors of those laws and treaties don't want to limit what constitutes a particular crime by failing to list all the possible ways that crime could be committed. To the extent a Court believes a statute (or treaty in the case of international conventions) is ambiguous it can rely upon the legislative history of the law as it was being considered, but no court I know of has ever said that the failure of a legislative body to enact a more specific statute after passage of the original law is evidence that a particular set of facts is not covered by the statute or law in question. Instead they will look to the language of the statute first, then to the legislative history, if any, and then to the decisions of other courts when construing the same law, or similar laws. Similar rules of construction are used by courts to interpret the language in international treaties to which the US is a signatory.

So, claiming that the use of waterboarding (or of any other torture technique) by the Bush administration must be lawful until Congress passes a specific law making waterbording illegal, is simply nonsense.

Conclusion?

Don't take your legal analysis regarding the legality of the use of torture by the Bush administration from ill informed and ignorant right wing bloggers. Indeed, you don't even have to take my analysis as definitive. However, perhaps you should pay close attention to the reasoning of four retired military Judge Advocates set forth in their recent letter to the Senate Judiciary Committee, because I think they may just know what they're talking about when it comes to the legality of waterboarding, even if Judge Mukasey claims he does not:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue - but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture - no less than wanton killing - is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact - as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule - the law - has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.

Sincerely,

Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

Couldn't have said it better myself.