Balkinization  

Friday, October 05, 2007

Were You Really Surprised?

David Luban

Now we know about the existence of two hitherto-unknown Office of Legal Counsel memos on torture and cruel, inhuman and degrading treatment (CID for short) – what Jack has called Torture Memos 2.0 and 3.0. Reportedly, number 2.0 approves specific harsh techniques used by the CIA, while 3.0 finds that no technique used by the government is CID. (If it was, the Detainee Treatment Act would prohibit it.)

My subject here is Torture Memo 3.0, and my question is whether we should be surprised. The answer is no, because the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators.

Let’s review the bidding. The U.S. is party to the Convention Against Torture, and Article 16 of CAT requires parties to “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.” When the Senate ratified CAT, it attached a reservation stating that the U.S. understands the phrase “CID” to mean conduct prohibited by the Fifth, Eighth, and Fourteenth Amendments. The Eighth bans cruel and unusual punishments, the Fifth, as interpreted by the Supreme Court, bans official conduct that “shocks the conscience,” and the Fourteenth applies these to the states. So far, so good. As Abraham Sofaer, the State Department’s legal advisor when CAT was debated, explained (in a January 21, 2005 letter to Sen. Patrick Leahy (sorry, I don't have a link)), the point was to make sure that the same standards that apply within the U.S. would apply anywhere.

Justice loopholed this definition of CID in two ways. First, it seized on the fact that the Court has held that the Fifth and Eighth Amendments apply only within U.S. territory. Ergo, nothing outside U.S. territory can possibly count as CID. This interpretation drew protests from Sofaer, because it turns the point of the Senate’s reservation upside down. The McCain Amendment plugged this loophole by banning CID regardless of geographical location.

But that still leaves the second loophole untouched. In the wake of Gonzales’s confirmation-hearing testimony that sketched out this territorial argument, three Democratic senators wrote to John Ashcroft, requesting all legal opinions on the subject within three days, for purposes of the confirmation debate. Justice ignored the request, but four months later Assistant AG William Moschella finally responded. He refused to turn over any legal opinions, but he did sketch out the reasoning. Here’s the loophole his letter describes:

With respect to treatment of detainees by the United States Government…the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998).

That’s the loophole. The letter strongly suggests identifying conduct that shocks the conscience with conduct “unjustifiable by any government interest.” Obviously, interrogation of detainees is justifiable by a government interest. If so, it doesn’t shock the conscience, doesn’t violate the Fifth Amendment, and therefore doesn’t count as cruel, inhuman or degrading.

An educated guess suggests that something along these lines lies at the heart of Torture Memo 3.0. The alternative – that Bradbury squinted at a list of tactics and wrote, “Heck, doesn’t sound degrading to me” – isn’t terribly likely.

But here are the problems with the Moschella opinion. First of all, when he quotes Sacramento, Moschella chops off half the quoted sentence to alter its meaning. The full sentence in the Supreme Court’s opinion says that injurious conduct unjustifiable by any government interest “is the sort of conduct most likely to rise to the conscience-shocking level.” That seems obviously true – but of course, it in no way suggests that other conduct doesn’t equally shock the conscience. Second, the proposition that a legitimate government interest means that conduct doesn’t shock the conscience can’t be right. The case that introduced the “shocks the conscience” test, Rochin v. California, found that pumping a drug suspect’s stomach to extract the evidence (which he had swallowed) shocks the conscience – but obviously, evidence-gathering is a justifiable government interest. The Supreme Court never went anywhere near where Moschella seems to think they went. Even the 2003 opinion in Chavez v. Martinez, where three justices of the Court opined that interrogating a suspect under extreme pain or fear doesn’t shock the conscience if the police had a good reason, doesn’t go as far – because, after all, three justices are only three justices. (Justice Kennedy joined that part of the opinion only on the stipulation that the policeman’s conduct didn’t itself contribute to the suspect’s suffering.)

The government has never retracted the Moschella letter, or the positions it sets out. So, in an important sense, we have known for two years that, in the government’s view, nothing it does to obtain terrorist information counts as cruel, inhuman, or degrading. Even if Torture Memo 3.0 uses a different argument than Moschella’s, it can’t reach a more radical conclusion. So where is the surprise?

Perhaps it’s here: we might have thought that the OLC had cleaned up its act after the Bybee Memo embarrassment. Obviously it didn’t. Apparently, after Jack Goldsmith’s departure, it returned to its previous posture of blessing anything the Administration wants blessed, just the opposite of the candid and independent advice that ethical lawyers are supposed to deliver to their clients. That, as much as the government’s position on CID, is the real disgrace. The OLC issues opinions that are, by custom if not law, binding on the executive branch, so this is not simply legal advice – it’s the equivalent of a secret D.C. Court of Appeals decision.

So now the senators are shocked, shocked that gambling is going on in the establishment. Maybe it’s time to start looking at the establishment itself. Is there anything that can be done to restore respectability to the Office of Legal Counsel?

Comments:

Heh. The only thing surprising about this stuff is that anyone is still surprised.

The Bush admninistration is committing war crimes pursuant to 18 USC 2441 BY POLICY under a false color of law, and that fact has been evident (if not always so obvious as it is now) since early 2002.
 

Maybe it’s time to start looking at the establishment itself. Is there anything that can be done to restore respectability to the Office of Legal Counsel?

To the OLC?! To the office of the presidency, you mean. Impeach Bush and Cheney, and the OLC will sort itself out.
 

I'd add that Torture Memo 3.0 is apt to be supproted by the recently-passed MCA.
.

Congress affirmatively provided statutory language in the Military Commissions Act - Public Law No: 109-366
 

The "shock the conscience" test is a utterly subjective balancing test. A judge balances the government need vs. the conduct and gives his or her own subjective opinion as to whether it "shocks" his or her conscience.

The OLC memos providing an opinion that the CIA coercive interrogation techniques do not constitute CID are just as valid as any other attorney's guess as to how some unidentified judge or judges would rule on the matter.

Given that Congress has dodged the issue repeatedly and done absolutely nothing to objectively define CID, they are the last people who should be acting outraged when the Executive makes the decision which they have dodged.
 

Just to expand on my comment above, Congress amended 18 USC 2441 when it passed S.3930, the Military Commissions Act of 2006. Amended 18 USC 2441 defines war crimes, including torture, cruel or inhuman treatment, and intentionally causing serious bodily injury. Those definitions include the terms of art, and point to additional statutory references for "severe mental pain or suffering" (see 18 USC 2340(2)), and "serious bodily injury" (see 18 USC 113(b)(2), which simply points to 18 USC 1365).

.

The references to 18 USC 2340 and 18 USC 1365 are new. They were provided to Congress by the administration. Alternative proposals (in particular, S.3901, euphemistically referred to as "the McCain amendment") did not contain references to 18 USC 2340 or 18 USC 1365. Proposals without those references were rejected by the administration. Not that the administration objected to the presence of the McCain amendment, just that without the references to 18 USC 2340 and 18 USC 1365, the McCain amendment was insufficient protection for the CIA.

.

My general contention is that at some point in time (post Oct. 17, 2006), torture memos can and will rely on Congressional enactment, rather than on a cheap loophole or shoddy logic. Congress has endorsed the administration's interrogation actions, retroactively to November 26, 1997.

.

I wonder what Senator McCain will say. He's on record as being told "no waterboarding," but the news accounts indicate the 2005 memos sanction "simulated drowning." Will Senator McCain be angry, mute, or claim that "waterboarding" isn't the same as "simulated drowning?"
 

The OLC memos providing an opinion that the CIA coercive interrogation techniques do not constitute CID are just as valid as any other attorney's guess as to how some unidentified judge or judges would rule on the matter.

No, Bart. If "shocks the conscience" is the standard, any interpretation on what shocks the conscience must be consistent with governing caselaw on the issue, including Rochin.

The analysis that so long as the conduct serves some governmental interest, it doesn't shock the conscience, is not consistent with Rochin.

Bart, you are really playing games here. You know darned well as a practicing lawyer that a lawyer arguing in good faith must make an argument that is consistent with the governing caselaw. And you further know darned well that even if there is some vagueness in a governing standard, that doesn't mean that any opinion is as good as any others when some opinions are consistent with what caselaw there is and other opinions are not.

As I said in the earlier thread, you are not arguing in good faith here. You are not making arguments that are consistent with your own law practice or with what courts actually do. And your only reason for doing this is because you want to get the Bush Administration off the hook for flouting the laws against torture and cruel, inhumane, and degrading treatment.
 

dilan said...

The OLC memos providing an opinion that the CIA coercive interrogation techniques do not constitute CID are just as valid as any other attorney's guess as to how some unidentified judge or judges would rule on the matter.

No, Bart. If "shocks the conscience" is the standard, any interpretation on what shocks the conscience must be consistent with governing caselaw on the issue, including Rochin.


How can a lawyer's interpretation be consistent with the case law, when the case law itself is not consistent, as Professor Luban points out in his post? In reality, the Court has been retreating from and narrowing the Rochin opinion over the years. Most recently, a Florida district court rejected the Padilla argument that his "torture" shocked the conscience and required a dismissal of his criminal charges.

Bart, you are really playing games here. You know darned well as a practicing lawyer that a lawyer arguing in good faith must make an argument that is consistent with the governing caselaw.

Of course, but you need consistent and factually apposite case law to do so. The case law cited in the lead post is not consistent with one another and there is no case law at all applying this subjective standard to wartime interrogation.

To add yet another layer of speculation onto this guessing game, none of us has any idea what legal reasoning was offered by the two undisclosed OLC memos in order to determine if it comports with the vague and indeterminate case law.
 

How can a lawyer's interpretation be consistent with the case law, when the case law itself is not consistent, as Professor Luban points out in his post? In reality, the Court has been retreating from and narrowing the Rochin opinion over the years.

You didn't read the post very well. Luban points out that in fact, the Sacramento case is consistent with Rochin as long as you read the quote in context (the DOJ took it out of context). Read in context, the Sacramento case is saying this is one way to meet the shock the conscience test, not the only way.

In any event, the case makes clear that Rochin is still good law.

Most recently, a Florida district court rejected the Padilla argument that his "torture" shocked the conscience and required a dismissal of his criminal charges.

Bart, that motion is not decided under the shocks the conscience standard. Instead, dismissal of the indictment is governed by Ker v. Illinois and Frisbie v. Collins, which hold that even if a criminal defendant is abused in custody or arrest, he may still be brought to trial. Ker and Frisbie were recently reaffirmed in United States v. Alvarez-Machain.

Now, there is a narrow exception to Ker and Frisbie that some lower courts have recognized, but not the Supreme Court. That narrow exception holds that where the government's conduct is truly outrageous, it can justify a dismissal of a criminal indictment. The leading case is United States v. Toscanino. However, since Toscanino, not a single court has dismissed an indictment on these grounds.

Thus, Padilla simply lost because like everyone before him, he couldn't establish a Toscanino claim. But the Court did not rule that his conduct did not violate Rochin.

The case law cited in the lead post is not consistent with one another and there is no case law at all applying this subjective standard to wartime interrogation.

Well, given that Congressional intent is clear that the same standard should apply to interrogation of terrorist suspects in the custody of the United States anywhere in the world, there's no basis for your implying that the standard would operate any differently or that Rochin should be disregarded.

By the way, Rochin is clearly good law in the sense that counts-- if a police agency dumps an emetic down a suspect's throat tomorrow, any court in America will find a constitutional violation.
 

http://gulcleak.blogspot.com/


Georgetown University did not allow for these letters to be distributed on the Main Campus. They have been distributed, via paper copy only, on the Law Center campus.


http://gulcleak.blogspot.com/
 

Mr. DePalma would presumably also argue that tort law is completely unworkable, because it relies on the notion of a "reasonably prudent person," a hopelessly vague notion.

One does see such arguments as regards "cruel and unusual punishment," "shocks the conscience," etc., but not usually from people who have graduated from law school. Unless, of course, they have some partisan purpose in mind.
 

Dilan said...

BD: How can a lawyer's interpretation be consistent with the case law, when the case law itself is not consistent, as Professor Luban points out in his post? In reality, the Court has been retreating from and narrowing the Rochin opinion over the years.

In any event, the case makes clear that Rochin is still good law.


The Rochin "shock the conscience test" has been one of the most roundly criticized of legal analyses because it is completely subjective. Indeed, it is an archetypical example of how egregious facts make bad law.

While the Court has not expressly reversed Rochin, the federal courts rarely find in favor of a movant using this argument.

BD: Most recently, a Florida district court rejected the Padilla argument that his "torture" shocked the conscience and required a dismissal of his criminal charges.

Bart, that motion is not decided under the shocks the conscience standard.


Ah, but, the rejected Padilla motion to dismiss made this argument several times:

"Mr. Padilla's treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter."

But the Court did not rule that his conduct did not violate Rochin.

The "shocks the conscience test is not limited to Rochin.

By the way, Rochin is clearly good law in the sense that counts-- if a police agency dumps an emetic down a suspect's throat tomorrow, any court in America will find a constitutional violation.

In this narrow factual application, we agree. However, it is very unlikely that courts will apply Rochin to much else. It is simply a bad decision which courts are distancing themselves from.
 

Test
 

In Padilla, the outrageous government conduct motion was denied because the Court considered that no evidence from the alleged conduct was going to be brought in by the government. The judge slid passed the issue rather than addressing it squarely.

As to "shocks the conscience", the Rochin or other test is as regards an international obligation and the question will be whether that standard as applied by the Court will be the same as when it is just as regards a domestic law situation under the Constitution. The treaty concerned being done under the authority of the United States and the concern as a matter of law being that the interpretation not be one that defeats the "object and purpose" of the treaty, I think the jury is still out on whether Bradbury's advice will pass muster with the Supreme Court. Remember that each detainee who is not American has a state that can invoke diplomatic protection in a way that is absent in the sole Constitutional setting. What we have to see is whether in applying the Judicial Power, the Supreme Court acts like neanderthals or not. That is the essence of the issue.

Best,
Ben
 

So couldn't you just direct the torture team to "not do anything which shocks your conscience"?

That way you immunize yourself, and very likely let the team do more than you would be willing to put down on paper.

Maybe "don't do anything I woundn't do!"
 

Ditto Dilan's (repeated) comments on "Bart"'s repeated obfuscation. But we have this from "Bart":

... there is no case law at all applying this subjective standard to wartime interrogation.

Assuming arguendo this is true, SFW?

Perhaps "Bart"'s point here is that when and if "military matters" are concerned, legality doesn't matter legally....

But then Dilan's point -- that "Bart" is simply not arguing in good faith on matters of law, and instead has a different objective here -- becomes obvious.

Cheers,
 

Ah, but, the rejected Padilla motion to dismiss made this argument several times:

"Mr. Padilla's treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter."

That's not surprising Bart, because the Ker-Frisbie / Toscanino matter arises at the threshold; the criminal defendant must show that the alleged conduct is so outrageous that it would justify the extreme remedy of a dismissal of an otherwise valid criminal indictment. But once a litigant passes through that gateway, he still must establish a constitutional violation, which would mean treatment that shocks the conscience.
 

"Bart" DePalma:

While the Court has not expressly reversed Rochin, the federal courts rarely find in favor of a movant using this argument.

"Bart": Do you even read the links you give? That points to Hasenfus v. LaJeunesse, 175 F.3d 68; 1999. That has to do with a 12(b)(6) motion to dismiss an 18 USC § 1983 claim, and comments on a "due process obligation of the school or school employees to render aid to a student in peril", mentioning Rochin in passing. "Bart", clue fer ya: IF you're going to mindlessly use Google and cut'n'paste for your 'legal research' (and this isn't the first time you've done that), some judges will simply laugh at you and rip your briefs into little tiny pieces....

Let's go to the opinion:

"The Supreme Court has regularly cited Rochin's test with approval, see Lewis, 118 S. Ct. at 1717 (citing cases), but has almost never found it to be violated even where the state has affirmatively caused the harm. The few circuit cases that have found or posited possible liability under a shock-the-conscience rubric since Rochin have usually involved egregious facts. E.g., Rogers v. City of Little Rock, 152 F.3d 790 (8th Cir. 1998) (rape by police officer in connection with car stop); Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998) (57-day unlawful detention despite repeated requests). The omissions charged against the school authorities here are not even close to violating this outrageousness standard."

Let's see ... sexual abuse by the detaining authorities ... a whole two month(!!!) unlawful detention. Ring any bells?

IOW, folks, no point in arguing here with "Bart": If he did this kind of stuff in a real courtroom, he'd be the laughing-stock of the courthouse (and probably up for malpractise charges). If his 'arguments' are representative of the best the preznit's 'legal counsel' can do, the outcome is a foregone conclusion ... provided the Democrats grow a backbone and refuse to keep handing Dubya the keys to the car despite his many little 'accidents'.

Cheers,
 

Arne,

I've said this before, but I'll say it again. I do find arguing with Bart to be useful (up to a point). Having one's most deeply help assumptions challenged forces one to defend them and learn whether any they have a sound basis or are mere prejudice.

Personally researching Bart's cites on foreign intelligence surveillance has given me a deeper and more complex understanding of the subject that I would otherwise have had. And I have learned a great deal from reading Dilan's refutations on torture. (Or, for that matter, yours).

Granted, I speak openly as a lay person; lawyers may not be so easily taken in. But I cannot believe that I am the only non-lawyer who reads here, or that most lawyers know as much about torture law as Dilan. And even one so learned as Professor Levinson finds Bart's challenges valuable at times.
 

arne:

It is amusing to have a non-lawyer claim accuse me of malpractice. Sorry to disappoint you, but I am just as aggressive in the courtroom and in my motion work and I usually win with nary a bar complaint.

The trick in motion work or appellate advocacy is to concede the adverse precedent to establish your credibility and then distinguish it on as many levels as possible.

For example, in the balance of powers arguments, I concede Congress' enumerated powers such as the authority to establish rules for captures, distance myself from the excesses of Yoo/Addington. This allows me to argue that I am staking out the middle ground.

That leaves others to discredit themselves by taking the unsupported absolutist position that Congress has the power to moot any Article II power and to falsely accuse me of being some sort of Yoo clone.

This contrast is not likely to change many of the set in stone minds here, but I assure you that it would be very effective before a neutral judge which does not share our preconceptions. Judges are generally cautious and like to think they are taking the most reasonable path.
 

What else Mr. DePalma, will I be called to bear witness too by those who claim falsely to be my fellow citizens and who accept torture as a second nature? Do they not know that the word citizen or the word individual allows for no definition, which accepts the philosophy of anti-man nor anti-women? That by accepting torture, any definition of torture, that this country’s history is then removed in one fell swoop. Gone is the cry of Peoples Sovereignty born of the English Civil War. And gone too is the claim that people after the U.S. Civil War will never again be considered as just some owners private property in this nations economy. And what in their place now reigns but the concept of the Corporation as a person? Banished is the so-called Constitution of the United States. So why not now that the Articles of the Confederation are back in vogue and unimpeded by any Bill of Rights. This will work just fine and has for
Blackwater. Ultimately, the dead corpse of a Corporation is venerated over the flesh and blood of the living.

Welcome all to Corporate Feudalism where all shall love and worship the new State Torturer who rules the World Supreme. At least Hitler was restrained from jettisoning the Geneva Conventions even with his back against the wall in February of 1945. I smell now the chief prosecutor Jackson’s closing arguments at the Nuremberg trials.

Res ipsa loquitur.

Happy Trials, Michael Keenan
 

Impeachment would be a nice start.
 

Mention of the Nuremberg trials brings to mind Sen. Dodd's new book, which includes a collection of his fathers' letters during his time as a top prosecutor in said trials. Honoring the rights of even mass murderers. Note also that Justice Stevens served in WWII.

Chavez is a telling case, especially the opinions of Stevens (with a transcript of the interrogation) and Kennedy. Kennedy's words ring true here: "It damages the law, and the vocabulary with which we impart our legal tradition from one generation to the next, to downgrade our understanding of what the Fifth Amendment requires."

Bart's presence here as a foil, doubling the comments number at least, is unfortunate in the respect that he serves as too easy of a target. It is something like John Yoo being on a panel of lawyers (including Chemerinsky) and court reports on American and the Courts last night on C-SPAN. Some representative of the right!

Yoo noted that he didn't like Kennedy too much vis-a-vis the likes of Scalia and Brennan (!) because K. ihho didn't have some unified legal theory (aka one track mind) to apply the Constitution. But, the Constitution is a complex entity made up of many at times competiting principles.

It at times IS messy. Disputing someone who thinks is consisently pro-authoritarian might be like shooting fish in a barrel, and on some level somewhat amusing (and/or aggravating), but it is not very useful for a true debate.
 

A reference is made to McCain. It is telling he changed his bus' name from the "Straight Talk Express" ... maybe he should also change the name of his book on the importance of courage.

John Dean is but one of many Republicans or former Republicans who are ashamed of what their party has become. In part, it is a matter of failure to stand up and say "basta!" Must stop those libbies like James Comey from taking over.
 

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"Bart" DePalma:

It is amusing to have a non-lawyer claim accuse me of malpractice. Sorry to disappoint you, but I am just as aggressive in the courtroom and in my motion work and I usually win with nary a bar complaint.

Did you try to say something that made sense, "Bart"? It was close, but once again, sloppy 'scholarship' obscures any little 'points' you might have been trying to make.

I will note the argumentum ad hominem, though. Bet that works wonders before judges....

Is it embarrasing to have a "non-lawyer" point out your miscites (some of which you've admitted) and egregious mistakes of law?

For example, in the balance of powers arguments, I concede Congress' enumerated powers such as the authority to establish rules for captures, distance myself from the excesses of Yoo/Addington....

Huh? Where did Yoo/Addington ever dispute these?

...This allows me to argue that I am staking out the middle ground.

Which is as asinine as most of your other 'arguments'....

Cheers,
 

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