Waterboarding: 'Repugnant,' 'Over the Line,' and Perfectly Legal


Columbia Law School

After he was nominated to succeed Alberto Gonzales as George W. Bush's attorney general in 2007, Michael Mukasey told Democrats on the Senate Judiciary Committee that waterboarding and other "enhanced interrogation techniques" were "repugnant" and "seem over the line." But exactly which line he had in mind was unclear, because he refused to say whether waterboarding was illegal. "Hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical," Mukasey wrote in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and the nine other Democrats on the committee. "Legal questions must be answered based solely on the actual facts, circumstances and legal standards presented."

Today, having considered those facts, circumstances, and standards, Mukasey unequivocally declares that waterboarding does not amount to torture because it does not inflict "severe physical or mental pain or suffering." Nor is it "cruel, inhuman or degrading treatment," the former attorney general explains in a recent Wall Street Journal op-ed piece, because that description is limited to actions that "shock the conscience," the definition of which depends on "what is at stake—like, say, national security." When national security is invoked, it seems, a technique can be repugnant and over the line without shocking the conscience. 

Mukasey adds that we know waterboarding is not really torture because Navy SEALs and journalists have undergone it voluntarily, and torture is "a procedure to which no rational person would submit voluntarily." Leaving aside that debatable definition of torture, Mukasey ignores the huge psychological difference between submitting to waterboarding once for the sake of military training or journalistic research—situations in which the subject can be confident he is in no real danger—and being waterboarded repeatedly against your will by captors with uncertain intentions. The fear triggered in the latter context is bound to be much greater, which is the whole point.

Mukasey suggests that waterboarding is not all that scary once you get used to it. "9/11 mastermind Khalid Sheikh Mohammed, perhaps the worst of the three waterboarded terrorists, eventually came to know the precise limits of the procedure and was seen to count the seconds by tapping his fingers until it was over," he writes. "Some torture." While many people would see counting the seconds as a coping mechanism for withstanding torture, Mukasey sees it as evidence that torture is not occurring. But in minimizing the unpleasantness of waterboarding, he casts doubt on the rationale for performing it. "Arguably," Mukasey writes, "what broke [Mohammed] was sleep deprivation." And we know that forcibly keeping someone awake for days on end is not torture because people voluntarily pull all-nighters to complete important projects.

If the legality of waterboarding is as clear as Mukasey claims, what are we to make of the letter that CIA lawyers wrote in July 2002, asking the Justice Department for "a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution." The letter, discussed on page 33 of the Senate Intelligence Committee's torture report, added that the "aggressive methods" contemplated by the CIA would be prohibited by the ban on torture, "apart from potential reliance upon the doctrines of necessity or of self-defense."

As John Sifton, advocacy director at Human Rights Watch, points out, this acknowledgment "dramatically undermines the credibility of previous claims by the Bush White House and the CIA that they did not know whether the interrogation tactics were legal until they received guidance from [the Justice Department's Office of Legal Counsel]." The 2002 letter shows "the CIA knew their tactics were illegal before receiving such counsel, but were seeking a legal cover—at first, via an immunity-giving advance declination, but when that failed, apparently the OLC memo." If the notion that brutal interrogation methods such as waterboarding were illegal is "demonstrably false," as Mukasey now insists, why were the CIA's lawyers so worried?

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  1. Ha ha, you terrorist apologists are sick. I bet you *want* another 9/11. Don’t you love America?


  2. I’m guessing that shyster has never been waterboarded himself. Didn’t a couple of right-wing pundits change their minds on this once they tried it?


  3. Mukasey adds that we know waterboarding is not really torture because Navy SEALs and journalists have undergone it voluntarily

    Navy SEALs and journalists have an advantage: they know with near certainty that those waterboarding them will not kill them and that their waterboarding session is a one-time event rather than one of a series of treatments. They have the additional advantage of not having been confined in solitary, forced to maintain stress positions, and deprived of sleep prior to the experience.

    1. It’s also rather unlikely that any of the Navy SEALs and journalists who underwent waterboarding had experienced the joys of rectal feeding.

      1. Geez, that was medically necessary!


      Seems relevant.

  4. Someone waterboard the mother-fucker and see if his opinion changes.

  5. This is what rationalization sounds like. I’m not sure he’s even convinced himself.

  6. ” Mukasey adds that we know waterboarding is not really torture because Navy SEALs and journalists have undergone it voluntarily,”

    Ya know, there’s all kinds of things that are generally considered torture, but a few people do it voluntarily and sometimes even pay for. Things like S&M, enduring intense pain just to prove you can, or listening to Miley Cyrus.

  7. Not entirely sure how mentioning SEALs being waterboarded helps the argument… Is it not uncommon for special forces to undergo torture procedures in “safe” settings so that they can better resist if captured in the field?

    1. There is a fundamental difference between “training” which you know will end and “torture” which you can’t know will end.

      1. I know. But while there is a huge difference between “waterboarding training” and “real waterboarding”, I would think being trained would at least give the recipient some defense as they would know what is coming.

      2. Regardless, I was just asking if it’s not unusual for special forces to undergo “torture training”…

        1. See, they don’t want you to call it ‘torture training’. because then people might start to think it was torture.

          But yeah – SERE and other schools do ‘torture-lite’ in an attempt to help build up mental defenses against what you might encounter if captured.

  8. It hardly seems to matter whether torture is legal or illegal, since the government will never allow any victims to bring a suit against them for it.

  9. Christopher Hitchens allowed himself to waterboarded. He tapped out after a few seconds and considered it the worst thing he’d ever been through. And that was a one-time event in a controlled environment. Nothing compared to what actual detainees go through.

  10. “severe physical or mental pain or suffering.”

    So what does he think the underlying mechanism is here? I mean, this shit is supposed to work, right? So, what? Do the ‘interviewees’ *enjoy* the process so much they tell all out of love? Maybe the just get *bored* and spill the beans so they can go back to their cells.

    Personally – I’m pretty sure that while it may not cause ‘severe *physical* pain’, it damn well causes severe *mental pain and physical suffering*. if it doesn’t, then what the feth is the point of using it in the first place.

  11. . . . previous claims by the Bush White House and the CIA that they did not know whether the interrogation tactics were legal until they received guidance . . .

    Somebody should tell these guys that the ‘presumption of legality’ only applies to private citizens. When government does something the operative presumption should be a ‘presumption of illegality’.

    IOW, if its not explicitly disallowed, a private citizen may assume its permitted. For the government, OTOH, if its not explicitly *allowed* then it should be assumed to be prohibited.

    1. “if its not explicitly *allowed* then it should be assumed to be prohibited.”

      I actually think that this may well be the only solution when it comes to interrogation. If can’t simply say, torture is illegal unless you are willing and able to define torture, that’s how laws work. of course that is a very difficult thing to do because in our lexicon torture has been used to describe everything from mundane unpleasantries to extreme cruelty and everything in between. It seems to make more sense to say ‘this is what you can do”. If you do something else you may go to jail. Of course you then also have to turn those rules into laws.

      1. The only attempt at defining torture I’ve seen since this whole waterboarding thing started is that given by the waterboarding proponents. And it was something along the line of causing pain similar to that of organ failure. That obviously goes well beyond what most people consider acceptable but on the other hand, if someone isn’t willing to specifically define torture then they really can’t say its not torture. That being said, how you label something has no bearing on whether it is moral, so even if you were to say waterboarding does not fit the definition that is not in any way conceding its morality or whether it should be legal or not. Unfortunately this whole argument has been one of semantics not laws so nothings actually been accomplished.

  12. Lets roll with it man.

  13. Detail of Waterboarding discussion on ‘Repugnant,’ ‘Over the Line,’ and Perfectly Legal contain this article. A lot of major points discussed in this article which are new for me regarding this department. I have watched a lot of scandals in different News channels about Waterboarding. I have read interview of head of this department at and this will be Fine for us. Thanks for this valuable information.

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