"We Don't Torture." "We Abide By Our Treaty Obligations." "We Treat Detainees Humanely." (Repeat as Needed.)

Marty Lederman

Timothy Flanigan was the Assistant Attorney General for the Office of Legal Counsel (OLC) in the George H.W. Bush Administration. In the George W. Bush Administration, he was Deputy White House Counsel. He left the Government in December 2002, and has now been nominated to be the No. 2 officer at the Department of Justice -- the Deputy Attorney General.

According to Administration attorneys and other officials, Flanigan "discussed a draft" of the notorious OLC torture memo as it was being prepared in the summer of 2002. Accordingly, in connection with his pending nomination, several Senators on the Senate Judiciary Committee submitted written questions to Flanigan regarding the OLC torture memo and related issues.

In his written answers to the questions of Senators Leahy, Kennedy, Feingold and Durbin (see also further written responses to additional questions of Senator Durbin), Flanigan endlessly invokes the mantras of this Administration, to wit:

-- "The President has recently and repeatedly reaffirmed the longstanding policy that the United States will neither commit nor condone torture."

-- "The United States has committed itself to complying with all of its obligations under the Convention [Against Torture]" -- including the requirement in Article 16 that the U.S. "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

-- "The President has said we will not treat people inhumanely."

Read a bit deeper, however, and one finds that these assurances are not quite what they appear to be. For example:

We Don't Torture

-- Flanigan is unwilling to say whether waterboarding -- "intentionally inducing a detainee's perception of suffocation" -- is torture, because that "depends on all of the relevant facts and circumstances." (Moreover, in connection with the Flanigan nomination, Senators Kennedy, Feingold and Durbin asked DOJ to produce the 2002 DOJ memo discussing whether various interrogation techniques constitute torture or are otherwise unlawful. On Monday, DOJ rejected that request. Interestingly, the Department does not assert that the information was classified because it reveals CIA methods. Instead, it merely argues that the memo's disclosure "outside the Executive Branch would harm the deliberative process of the Department and the Executive Branch and disrupt attorney-client relationships.")

-- Although Flanigan concedes that he was present at two meetings where "OLC lawyers" briefed the White House Counsel on their analysis of the federal torture statute, he implausibly claims never to have seen any drafts of the torture memo (including the final draft), even though it was delivered to the White House Counsel on August 1, 2002, several months before Flanigan left office. [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan refuses to name the OLC lawyers who briefed him and Judge Gonzales.]

-- Flanigan claims that the statutory analysis of the torture statute he received from OLC in the summer of 2002 "appear[ed] to be reasonable" -- even though that analysis was thoroughly and unmercifully repudiated by OLC itself in December 2004, as soon as the slightest bit of public attention was brought to bear on it.

We Abide By Our Article 16 Obligation to Prevent Acts of Cruel, Inhuman or Degrading Treatment In Any Territory under U.S. Jurisdiction

-- Perhaps we ceaselessly abide by the obligation of Article 16 of the Convention Against Torture to prevent acts of cruel, inhuman or degrading treatment in any territory under U.S. jurisdiction; but the Department of Justice has taken the implausible view that that obligation does not apply overseas, and Flanigan writes that that DOJ analysis "appears to me to be correct." (For further discussion of this question, see this post.) [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan assures the Senator that even though in DOJ's view there's no legal requirement that we avoid cruel, inhuman and degrading treatment of detainees overseas, nevertheless "it is the policy of the Administration to abide by the substantive constitutional standard incorporated by the Senate reservation [prohibiting conduct that "shocks the conscience"] into Article 16," even overseas. Is that right? Well, then, how is the waterboarding and false burial of some detainees consistent with such a "policy"? And why, in that case, is the Vice President fighting tooth and nail to prevent Senators McCain and Graham from enacting a statute that would unequivocally prohibit cruel, inhuman and degrading treatment overseas?]

The President Has Required "Humane" Treatment of Detainees

-- When asked to define the "inhumane treatment" that the President has proscribed, Flanigan carefully explained that the President's February 7, 2002 memorandum directs "the United States Armed Forces" (i.e., not the CIA) to treat detainees humanely. (See this post and those linked therein.)

-- Flanigan also confirms that the President's directive, even as to the Armed Forces, is toothless. He writes that "'[i]nhumane treatment is not susceptible to a succinct definition. It is informed by the customary laws of war and depends on all of the relevant facts and circumstances." Practice has borne this out -- the view of the Department of Defense is that concedely degrading and humiliating treatment can still be "humane." [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan emphasizes that to say "humane" is not susceptible to a succinct definition "is not to say that the term lacks meaning or that the Department of Defense cannot provide service men and women with appropriate guidance in the context of particular facts and circumstances." Oh, well that's reassuring. Flanigan goes on to write that the White House has not provided guidance specifically on the question of what is "humane," and that he's not able to say whether -- as DoD has concluded -- "degrading and abusive" treatment can be humane.]
Posted 10:09 AM by Marty Lederman [link]