Our Secret Law of Interrogation

Marty Lederman

Patrick Leahy, the incoming Chair of the Senate Judiciary Committee, requested that the Department of Justice provide him with two documents: (i) President Bush's directive authorizing certain CIA interrogation methods and detention facilities located outside the United States; and (ii) the August 2002 OLC Memorandum to the CIA General Counsel explaining which interrogation techniques the CIA may and may not legally use. (Leahy also requested any other documents covering the same topics.)

Not surprisingly, the Department of Justice has denied that request. There are two basic grounds for the denial.

The first is that the Administration simply will not publicly reveal which techniques it considers lawful and which are unlawful--because the enemy must remain uncertain about what the legal limits are. The theory is that if Al Qaeda knows what is lawful and what is not, it will better be able to train its operatives to resist those techniques that are lawful.

As I've written previously, there is ususally very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about. Here's what I wrote back in September:

[T]his argument [that we can't let Al Qaeda know what is legal and what's not] is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And . . . the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

That is to say: If the public were to learn that the Administration considers waterboarding, or hypothermia, or sleep deprivation, legal, that knowledge would hardly assist Al Qaeda, because presumably they already are doing all they can to prepare their agents to withstand these well-known techniques, to the extent such resistence is possible. (The whole point of the extreme techniques, we had been led to believe, is that they are difficult if not impossible to resist.)

If, on the other hand, OLC has concluded that certain techniques are not lawful -- say, because they constitute "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions -- how would learning that information help Al Qaeda? Yes, it would mean that, as a practical matter, we could no longer terrify Al Qaeda detainees by threatening to use such techniques on them. But such a threat to use unlawful techniques would itself be unlawful, so that's no real loss.

There are many, many techniques and weapons of warfare that are known to be illegal -- that's the whole point of the laws of war and modern treaties, not to mention the Military Commissions Act itself and the new Army Field Manual: They all specify, in great detail, a long list of things that are off-limits, or even criminal, in warfare. There's no reason the CIA techniques cannot or should not be treated likewise. (Again, I might understand an exception for a technique that is both legal and not previously known. But I doubt the CIA is using many such "new" technqiues that have not previously been described in public sources.)

The second reason DOJ gives for not releasing the OLC advice in particular is "the Department's longstanding practice that non-public OLC opinions and memoranda involving involving . . . confidential advice are not disclosed outside the Executive Branch."

In part, this explanation is simply question-begging: The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

(The DOJ letter suggests that the congressional intelligence committees have been briefed, at least in general, about the CIA programs. But it's not clear that the intelligence committees have seen these and related legal documents. Moreover, presumably the intelligence committees may not share the information with their colleagues, without whom a legislative response would be impossible.)
Posted 12:24 AM by Marty Lederman [link]