an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Stuart Taylor has responded to my post earlier today, and I have added his response as an update to that earlier post (I think it's easier on the reader to see them in one place). I stand by my earlier post. I should add that I neglected to send him my post even though it specifically criticized his article, and I offer my apology for the discourtesy.
UPDATE: My reponse is now up here, directly following Stuart Taylor's letter.
A SECOND UPDATE: Stuart Taylor has asked me to post a sur-response to our exchange, which I will do here. His cover note says "I don't want to prolong this exchange endlessly," and I agree. I don't think readers would be well served by a prolonged response, but I can't forbear making a couple of remarks following Stuart's letter. Here's the letter:
The anti-torture statute makes it a crime for a U.S. agent to act with specific intent to inflict severe physical or mental pain or suffering, while narrowly sub-defining severe mental pain or suffering as requiring proof of (among other things) prolonged mental harm.
David Luban now seems to concede that waterboarding and the other CIA interrogation techniques proposed to Bybee and Yoo did not inflict severe physical pain or severe mental pain or suffering as defined by the statute.
He now bases his entire argument on a claim that (contrary to the Bybee-Yoo memos) the statute means something different by physical suffering than by physical pain, and that waterboarding is illegal torture because it inflicts severe physical suffering.
Though not silly on its face, this argument not persuasive -- and Luban's claim that Bybee and Yoo played a trick when they interpreted pain or suffering as a unitary concept is sadly tendentious -- for the following reasons:
First even OPR which was nothing if not motivated to fault Bybee and Yoo in every plausible way implicitly rejected the distinction between pain and suffering on which Luban rests his entire argument, with such scorn for anyone who might disagree.
OPR implicitly conceded that Yoo and Bybee had been correct in opining that the words pain and suffering were a unitary concept and that suffering did not broaden the statutes coverage. The OPR report recites a list of alleged Bybee-Yoo errors and this is not one of them. David Margolis also found no fault with Bybee-Yoo on suffering.
Second, nothing in the legislative history and little if anything in dictionary definitions supports this distinction between pain and suffering. The law has generally treated pain and/or suffering as a unitary form of harm.
Third, while its fair to note that the disjunctive form of "pain or suffering" suggests two distinct concepts, that view is not supported by the sole definition of pain or suffering that Congress supplied in the statute It defined "mental pain or suffering" as "prolonged mental harm" that results from specific enumerated acts. Congress did not treat suffering vs pain as distinctive terms.
Fourth, Luban ignores the fact the CIA told Bybee, and he was entitled to assume, that the core effects of waterboarding were mental and not physical. And the statute is very clear that acts which inflict an imminent fear of death are NOT torture unless they cause prolonged mental harm. Luban is recharacterizing the "fear of death" as a form of physical suffering, when the statute treats it as a form of mental pain or suffering.
Fifth, even assuming arguendo that "physical suffering" is a distinct concept, under the assumed facts the CIA agents did not "specifically intend to inflict severe physical . . . suffering. Specific intent is not a "defense" to torture. It is part of the definition of torture under this statute. Luban says that the intent element is satisfied because the whole point of waterboarding was to make them "suffer." Actually, the point was to make them fear imminent death without hurting them -- a form of "mental" pain/suffering under the statute and not a form of physical suffering. The interrogators (as the process was described to Bybee) had a good faith belief that waterboarding would not inflict any other serious form of harm, pain or suffering.
Margolis also provides strong support for the Bybee interpretation of specific intent. He says that the Pierre decision construed "identical" language in the Convention Against Torture and that the opinion adopted by 10 of the 13 judges represented a "virtual endorsement" of the Bybee interpretation.
I concede Luban's point that I was not precisely correct in my offhand description of how we know that the SERE experience did not inflict any form of torture. As he stressed, the CIA relied on the official who presided over the training rather than on a unanimous account by trainees. But this is, as he notes, a small distinction -- in my view, so small and with so little relevance to our overall disagreement as to suggest that Luban's lengthy discussion of it is designed to divert attention from the weakness of his basic position.
1. I don't concede that waterboarding doesn't cause severe physical pain. I don't know whether it does. If Nance is right that waterboarding may bring water into the lungs (see my previous post for the Nance quote), or if OLC is right that victims may swallow large quantities of water (ditto), it may well be that severe physical pain results. For all I know (never having been partially suffocated or drowned myself), the experience actually is severely painful. My point is that even if the answer on pain is no, it's a different question whether it causes severe physical suffering that isn't pain.
2. I do agree that according to the torture statute waterboarding would not be mental torture unless it causes prolonged mental pain or suffering. The Bybee memo discussed reports from SERE officials that SERE veterans did not suffer psychological after-effects. There have been years of back and forth among commentators (including in the OPR report and Margolis's memo) about whether the experience of multiply-repeated waterboardings of detainees is different enough from SERE that this was not adequate evidence; I'm not going to repeat all the arguments yea and nay here. Suffice it to say that I think it's an open question whether repeated waterboardings in a setting where the victim doesn't know how many more weeks or months it will go on might be mental torture even in the narrow sense of the statute. Again, my point was that even if the answer is no, inflicting severe physical suffering with specific intent to cause it is torture.
3. Taylor writes: "the CIA told Bybee, and he was entitled to assume, that the core effects of waterboarding were mental and not physical." That would be page 11 of the classified Bybee memo, here. The exact wording is: "You have informed us that this procedure does not inflict actual physical harm." This is not actually the same as saying that it does not inflict severe physical suffering, merely that it does not damage the subject's body. To see the difference, imagine a technique that caused a subject to experience acute itching everywhere on his body. Here too, one might truthfully add "it does not inflict actual physical harm," and we all understand what that means: no damage. It doesn't mean "no pain or suffering." But that is the conclusion that Yoo and Bybee reach: "Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain." No, no, no. While the fear or panic associated with partial drowning is "mental," the experience is physical. (In any case, it strikes me as basically demented to think that if the CIA told Bybee that a suffocation technique's core effects are mental not physical he should assume it is true. What if the CIA had said, "we will burn him with glowing cigarettes, but we have determined that the core effects of this technique are mental, not physical"? Should a lawyer simply say "yes, boss" and write the opinion based on that assumption?) Again: Waterboarding is not just fear of death. It is the physical experience of suffocation.
4. Taylor's fifth point is about specific intent, and he writes "Actually, the point was to make them fear imminent death without hurting them." Actually, we don't know anything of the sort. Taylor's argument is circular. If you assume, as Taylor does, that repeated partial drowning doesn't cause physical suffering, then the point of inflicting it is to make them fear imminent death without (physically) hurting them. But why make the assumption?
5. Taylor ends by discussing a small embarrassment, namely that his previous letter made an assertion about the unanimous testimony of thousands of U.S. troops that is untrue, as he concedes. But he adds that this is "so small and with so little relevance to our overall disagreement as to suggest that Luban's lengthy discussion of it is designed to divert attention from the weakness of his basic position." Um, my lengthy discussion was 194 words, 21 of them quoting Taylor. That's out of a post of (ouch!) 1932 words. (Sorry, readers.) If I was trying to divert attention from the weakness of my basic position, please be assured that I could do better than that.
A colleague commented on this exchange: "God I can't believe we are back to this. Of course we are but it's like a bad record skipping back endlessly in the same loop." I agree. Surely it is time to bury the Bybee Memo's arguments in a deep dark place. We don't have to keep talking about them forever. The Justice Department retracted it and replaced it, Jack Goldsmith warned DoD not to rely on it, OPR thought its arguments bad enough to warrant professional discipline, and Margolis, disagreeing with that recommendation, agreed that its arguments were bad and the judgment it displayed poor. Enough is enough.