Waterboarding: It depends on what the meaning of "present" is

We now appear to know why Judge Mukasey has been so cagey about answering the question of whether waterboarding is torture or otherwise illegal: He fears that saying yes could open the door to criminal and/or civil liability for current and former Bush Administration officials who conducted or authorized waterboarding. But is that fear reasonable?

As the latest NY Times story notes, U.S. law now provides a good faith defense to charges of illegal interrogation. In particular, the Detainee Treatment Act provides in relevant part:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.
If Judge Mukasey were really just concerned about protecting personnel who engaged in past acts of waterboarding, he could say something like the following: I have not yet seen all of the relevant classified documents, but based on the publicly available accounts of what waterboarding consists in, I would conclude that it is illegal. At the very least it appears to be "cruel, inhuman or degrading treatment" in violation of international and domestic law, even if it does not rise to the level of torture. However, U.S. personnel reading the "Bybee memo" and other official documents could have reasonably concluded that waterboarding was legal, and under the DTA, that conclusion could be sufficient to shield them from criminal or civil liability. In any event, I do not want to pre-judge the matter of what, if any, legal action should be pursued by the Justice Department until I have all the facts in hand, nor do I want to be understood to be giving an official interpretation that could be used in a proceeding in a foreign country exercising universal jurisdiction. I will say that based on my best current judgment, waterboarding is illegal now, and prospectively I would not give the Justice Department's approval to the practice.

The fact that Judge Mukasey was unwilling to make a statement of that sort suggests that perhaps his concern is not solely with past waterboarding but also with future cases. Indeed, this is hardly mere speculation. Judge Mukasey, in answering one of the Senate's written questions, wrote:
I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct, with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.
In referring to "past or present" instances of waterboarding, presumably Mukasey did not have in mind just those instances, if any, of waterboarding that were occurring at exactly the moment that he was writing out his answers. In other words, he pretty clearly meant that he didn't want U.S. personnel to worry about liability for past or future waterboarding. This sort of wordplay---using "present" to mean "future" but in a way that isn't at first obvious---almost makes me nostalgic for the purported memory lapses and bald-faced lies of Alberto Gonzales. Almost.

Posted by Mike Dorf