Letter from Jack Balkin to Senator McCain regarding waterboarding as torture

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment and director of The Information Society Project at Yale Law School, sends Senator John McCain the following letter:

Wednesday, February 06, 2008

What Do You Say Now, John McCain?

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview. Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

And if that is so, Senator McCain, do you agree that the Administration is subject to criminal liability under the torture statute and the War Crimes statute? Do you agree that the United States, under the leadership of George W. Bush, has committed war crimes and has stated that it sees no obstacle to doing so again?The country awaits your answer.

JB
(simulation of waterboarding outside the Justice Department in Washington November 5, 2007: Nan Carrow Webdesk; photo of Jack Balkin: Yale Tomorrow)