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?
Posted 11:23 AM by David Luban [link]