Administration Confirms Its View that CIA May Engage in "Cruel, Inhuman and Degrading" Treatment

Marty Lederman

In an important story in tomorrow's New York Times, Doug Jehl and David Johnston report on how the Administration successfully opposed enactment of a provision in recent legislation that would have specifically prohibited the CIA from engaging in "cruel, inhuman and degrading" treatment of detainees. A letter from National Security Adviser Condoleezza Rice to members of Congress "expressed opposition to the measure on the grounds that it 'provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"

This confirms the theory I wrote about in a four-part post here a few days ago: that the Administration has concluded that the CIA is not presently prohibited from engaging in cruel, inhuman and degrading conduct when it interrogates suspected Al Qaeda operatives outside U.S. jurisdiction--even though such conduct would be unconstitutional if conducted by the CIA within the U.S., and would be prohibited by law, treaty and executive directive if conducted by the Armed Forces even outside the U.S.

The article further confirms my understanding that the new OLC Memo on torture, although a dramatic improvement over the 2002 OLC Memo, nevertheless does not affect DOJ's previous advice that the CIA may engage in particular highly coercive techniques that fall just short of statutory "torture." The article reports "[c]urrent and former government officials" as saying that "specific interrogation methods were addressed in a series of still-secret documents, including an August 2002 one by the Justice Department that authorized the C.I.A.'s use of some 20 interrogation practices. The legal opinion was sent to the C.I.A. via the National Security Council at the White House. Among the procedures approved by the document was waterboarding, in which a subject is made to believe he might be drowned. The document was intended to guide the C.I.A. in its interrogation of Mr. Zubaydah and a handful of other high-level detainees. Instead, it led to a series of exchanges between the Justice Department and the intelligence agency as they debated exact procedures to be employed against individual detainees."

NOTE: The NYT story identifies me as a former DOJ attorney who "believe[s]" that the administraion had "always wanted to leave a loophole where the C.I.A. could engage in actions just up to the line of torture." Just to be clear: That conclusion is simply what I deduced from documents that have been made public after I left the Department (as reflected in the series of posts below). I did not learn of anything about this issue while at DOJ, and nothing I have written or said reflects any confidential information to which I was privy at OLC.

UPDATE: A couple of readers have questioned whether most Americans will perceive this development as such a bad thing, or whether they might instead respond: "The Administration is waterboarding Khalid Shaikh Mohammed? Damn, I sure hope so."

Sadly, I concede that many, perhaps most, readers of the Times story might have such a response--at least at a gut level. I think that it would be extremely unfortunate for us to act in accord with that impulse, and that the costs of going down that road are far greater than the benefits. But although I have a strong moral intuition about such things, I'm hardly an authority on the empirical questions of consequences. I'll leave it to others with much more experience and authority than I to speak to those questions much more effectively and eloquently than I could hope to do. I'll simply make four brief points in response:

1. The conduct we're talking about here is conduct that would not only be unlawful if committed by the Armed Forces, but that would also presumptively be unconstitutional if even the CIA engaged in it here in the U.S. (The constitutional test -- conduct that "shocks the conscience" and thus violates the Due Process Clause -- is the express substantive standard that the "cruel, inhuman and degrading" prohibition would instantiate. The Administration would not need to prevent enactment of the prohibition if it did not wish to preserve the authority to engage in conduct that meets this standard.) Is there any really persuasive argument that the CIA should be permitted to avoid such constitutional restrictions merely by the fortuity that it flies these detainees to an undisclosed foreign location rather than to a detention facility in South Carolina?

2. The legal theory that supports the waterboarding of KSM is not limited to top Al Qaeda leaders. It would permit the inhumane treatment outside U.S. jurisdiction of any detainee not protected by the Geneva Conventions -- a category that is, in this Administration's view, remarkably broad, encompassing virtually anyone who is suspected of aiding Al Qaeda in any way. The limitation to "top" Al Qaeda leaders, if it exists, is a function of policy, not of legal constraint (unless I'm missing something).

3. It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed. The "migration" of such techniques, and their ilk, to interrogations by the Armed Forces, and to detainees who are protected by Geneva or who have much more questionable intelligence value, is very difficult to prevent, particularly where the CIA's harsh methods become widely known and emulated within the broader community of interrogators who are under intense pressure to obtain valuable intelligence (whether about future terror or simply about Iraqi insurgency plans). In addition to the story told in the Fay Report, Andrew Sullivan is especially worth reading on this very serious problem.

4. This is, to my mind, the most important point: Even if we do as a Nation ultimately decide that inhumane treatment should be authorized for a certain category of detainees, perhaps the Times story will at the very least help to ensure that that question is subject to public deliberation, democratic decisionmaking, and the moral and practical (including international) ramifications that such a serious decision ought to entail. This Administration has talked a great deal about how it is committed to treating detainees "humanely," but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S. Perhaps it is absolutely right to have worked to preserve such a CIA "loophole." I don't think so; but I recognize that I may be in the minority. I simply hope that, if this--waterboarding--is being done in our name, at least we can be more forthright about what we, and our legal and moral commitments, have become.

UPDATE II: Not so fast. It appears that perhaps I was being far too pessimistic about the willingness of Americans to condemn the CIA's legally approved program of "torture-light" for suspected Al Qaeda operatives. (That is to say, I've undoubtedly been spending too much time in the blogosphere.)

According to this very recent USA Today poll (taken last week), 59% of respondents said that they would not be willing to have the U.S. government torture known terrorists even if those known terrorists “know details about future terrorist attacks in the U.S.” and the government thought such torture was “necessary to combat terrorism”! And when asked whether “you think it is right or wrong for the U.S. government to use [particular techniques] on prisoners suspected of having information about possible terrorist attacks against the United States,” respondents answered as follows:

-- Forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours – WRONG, 79% to 18%

-- Having female interrogators make physical contact with Muslim men during religious observances that prohibit such contact – WRONG, 85% to 12%

-- Threatening to transfer prisoners to a country known for using torture – WRONG, 62% to 35%

-- Threatening prisoners with dogs – WRONG, 69% to 29%

-- And as for Waterboarding (“Strapping prisoners on boards and forcing their heads underwater until they think they are drowning”) – WRONG 82% to 18%

-- On “[d]epriving prisoners of sleep for several days,” 49% of respondents answered RIGHT; 48% WRONG

Posted 11:45 PM by Marty Lederman [link] (18) comments

A Must-Read Review by Andrew Sullivan on Torture

Marty Lederman

This new, extended book review by Andrew Sullivan in the New York Times is, along with some Mark Danner essays in the New York Review of Books, among the most moving and indispensible things yet written about the torture scandal. Sullivan closes with the following sobering passage:

[I]n a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes. . . . Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. . . . I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

The only important piece missing from Sullivan's review is the central role of the CIA in the current legally sanctioned regime of highly coercive interrogation--interrogation that borders on torture, even if it does not quite satisfy the extremely narrow definition of torture contained in the U.S. criminal torture statute. I discuss that role further in a series of posts beginning here; and it is at the heart of a front-page story in tomorrow's Times that I'll post about presently.

Posted 11:30 PM by Marty Lederman [link] (16) comments

Heather MacDonald's Dubious Counter-"Narrative" on Torture

Marty Lederman

Over in Slate, Mickey Kaus refers to a new article in the City Journal by Heather MacDonald as the “best defense of the administration’s record on torture” that he’s yet read. MacDonald argues that the atrocities at Abu Ghraib and other abuses in U.S. detention facilities in Iraq and Afghanistan (including, apparently, murders) are not the result of Administration interrogation policies; that the Office of Legal Counsel’s legal justifications for extremely coercive interrogation techniques bordering on torture have had no effect on the Pentagon’s interrogation policies; and that the military’s current interrogation practices are, in fact, far too timid and cautious—the result of a hidebound legalist culture within the government and of an inaccurate “torture narrative” promoted by “self-professed guardians of humanitarianism” (e.g., the Red Cross and Amnesty International) who “need to come back to earth.”

MacDonald’s account is, I think, suspiciously evasive on the facts and the law, as I’ll explain below.

At the outset, however, it’s important to note that MacDonald is absolutely correct in one very important respect—involving the role of the CIA. In a series of posts that I published here a few days ago (see below), I attempted to demonstrate that the infamous August 2002 OLC Memo on torture was not originally intended as a guide to interrogations conducted by the U.S. Armed Forces in Iraq, Afghanistan, or Guantanamo. The 2002 memo deals exclusively with the federal torture statute—but the Armed Forces are bound by legal rules much more restrictive than those imposed by the torture statute, including the Uniform Code of Military Justice, the President’s directive that all detainees be treated humanely, and article 16 of the Convention Against Torture, which in effect prohibits treatment that would “shock the conscience,” and thus violate the Due Process Clause, if it had occurred within the U.S. The purpose of the 2002 OLC Torture memo, I explained, was instead to identify the legal limits on interrogation that the CIA may use against suspected Al Qaeda operatives at locations outside U.S. jurisdiction. The Administration apparently has concluded (perhaps not without reason) that numerous other statutory, executive and treaty-based restrictions on coercive interrogation and inhumane treatment do not apply to such CIA interrogations outside U.S. jurisdiction—so that if a technique does not amount to “torture” under the very narrow statutory definition, it is not off-limits to the Agency. In other words, even if a particular inhumane or cruel technique would be unlawful if performed by the military, or would be unconstitutional if performed by the CIA within the U.S., OLC apparently has concluded that the CIA nevertheless may use that technique upon suspected Al Qaeda detainees outside U.S. jurisdiction as long as it does not amount to statutory “torture.”

The 2002 OLC Opinion bent over backward to construe the federal torture statute as narrowly as possible. A recent, superseding OLC memo on the torture statute, released at the end of December 2004, improves on the 2002 memo in numerous ways, and even goes so far as to repudiate many of the central, most extreme conclusions of that earlier memo. Notably, however, the new memo reassures the CIA, in a footnote, that despite all these changes and repudiations, OLC has “reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." That is to say, the new OLC Opinion, even with its much more reasonable views of the torture statute, appears not to affect in any significant way the techniques the CIA has already been specifically authorized to use. And the Administration has concealed from the public (and perhaps also from the Congress) the extreme, sometimes inhumane forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

In his confirmation hearing last week, Judge Gonzales claimed that he has no “specific recollection” whether it was the CIA that asked for OLC’s legal advice on the meaning of the torture statute. That claim is increasingly implausible. MacDonald’s article and another new piece in Time Magazine confirm what others have been reporting since last summer—namely, that the White House Counsel request for OLC advice was prompted by a CIA request concerning “how far interrogators could go” against high-value Al Qaeda detainees, such as Abu Zubaydah. (I’ve tried to demonstrate in my earlier posts that this is the only way to explain the OLC memos—that there would have been no reason for OLC to be answering the narrow questions concerning the torture statute if the request had come from, e.g., the Pentagon, which was bound by much stricter requirements.)

As the Time Magazine article notes, however, as long as the Administration is not more forthcoming, “it remains impossible to know what rules the CIA is following when it conducts interrogations in ‘undisclosed locations’ outside the U.S.” What we do know is that the Administration appears to have strenuously, and successfully, resisted all efforts—including two recent bills that the Senate passed unanimously—to require the CIA to refrain from cruel, inhuman and degrading treatment of detainees. And, according to “a former Justice Department official” cited in MacDonald’s article, the CIA apparently has been authorized to use techniques as extreme as water-boarding, i.e., submerging a detainee in water to induce the sensation of drowning. Beyond that, as MacDonald notes, “[t]he CIA’s behavior remains a black box.”

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

As noted above, I agree with MacDonald that the 2002 OLC Memo likely was not intended to affect interrogation policies in the military. But she is wrong to insinuate that the Pentagon was unaware of the OLC Memo, and to argue that the Memo had no effect on Pentagon policies and practices. Although I assume the Memo was originally intended for use by the CIA, the White House soon forwarded it to the Department of Defense, where huge portions of it were incorporated virtually verbatim in the DoD Working Group Report on Guantanamo interrogation techniques in early 2003 (even though the statute discussed in the OLC Memo did not even apply at Guantanamo during the period in question). Most notably, the Pentagon adopted wholesale the most indefensible and most dangerous portions of the OLC Memo—where OLC concocted unlikely criminal defenses of “necessity,” “defense of nation,” and “presidential authority,” and where OLC argued that criminal laws restricting methods of interrogation are unconstitutional to the extent they impinge upon the President’s decisions of “what methods to use to best prevail against the enemy.”

Armed with these OLC assurances of virtually no legal exposure, the DoD Working Group itself concluded that these techniques were among those that are lawful under the restrictive laws governing military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.

In December 2002, Defense Secretary Rumsfeld likewise approved a whole series of new interrogation techniques that are difficult to explain in terms of the law governing the military. Perhaps because such techniques were so obviously close to or over the legal line, Rumsfeld rescinded that approval after only six weeks. MacDonald is correct that in April 2003, Secretary Rumsfeld declined to approve of some of the more coercive techniques. What’s not as certain is her further argument that the non-conventional “stress” techniques Rumsfeld did finally approve were “innocuous interventions.” Those techniques included “environmental manipulation” (such as “adjusting” the temperature or introducing an “unpleasant smell” in the interrogation area); convincing a detainee that individuals from a country other than the United States are interrogating him (including from a nation that the detainee knows is more likely to engage in harsh treatment); and isolating the detainee from other detainees for up to 30 days.

Presumably each of these techniques is, in Rumsfeld’s view, “humane,” does not shock the conscience, and does not violate the UCMJ (including its prohibitions on cruelty, oppression, maltreatment, assaults and threats).

Perhaps his judgments on those questions are legally sound as an abstract matter—that is to say, perhaps these techniques could be applied in conformity with all applicable laws that apply to the military. But when it comes to how Rumsfeld’s directives were (apparently) implemented, it becomes clear that those directives were hardly “innocuous.” MacDonald asserts that the new techniques Rumsfeld approved were used on only one GTMO detainee. The Schlesinger Report states that the new, more coercive Rumsfeld techniques were used upon two detainees at GTMO. If these accounts are accurate, then perhaps the attempt to trace harsh techniques to Pentagon-approved policies really is a tempest in a teapot (unlike what is happening at the CIA).
But MacDonald’s minimalist account is not consistent with other recent reporting. According to this recent New York Times story, for instance, http://www.nytimes.com/2005/01/01/national/01gitmo.html?oref=login, the Rumsfeld-approved techniques apparently transmogrified in practice into the following at GTMO:

-- prolonged sleep deprivation;

-- shackling prisoners in uncomfortable positions for many hours (to the point where one detainee who had been shackled overnight in a hot cell soiled himself and pulled out tufts of hair in misery);

-- tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

-- and, in at least one case, tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GITMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Are these techniques “light years from real torture,” as MacDonald suggests? More to the point, are they lawful? To the extent military officers approved or implemented these forms of coercive interrogation, it is difficult to see how they avoided violating legal restrictions such as those in the UCMJ, article 16 of the CAT, and the President’s directive that detainees be treated “humanely.” Notably, MacDonald herself does not explain how these techniques—or even those approved by Rumsfeld—might be consistent with the law. Indeed, she fails even to mention the UCMJ, even though, as Senator Graham indicated last week, it is the longstanding set of legal norms that establishes the most comprehensive and demanding set of restrictions on the conduct of military personnel engaged in interrogation. To my knowledge, DoD has never hinted that the UCMJ is inapplicable at Guantanamo, and has not asked Congress to loosen UCMJ standards so that the military may apply previously unlawful forms of coercion to Al Qaeda detainees. Is MacDonald asking for a legislative authorization that even the Administration has been unwilling to propose? There's no way to know, because her piece blithely disregards any discussion of what the current law might actually be.

Finally, there’s MacDonald’s eye-opening suggestion that the interrogation policy debates at GTMO and in Afghanistan are “irrelevant” to what occurred at Abu Ghraib, and that Abu Ghraib had little or nothing to do with the Administration’s interrogation policies (or with interrogation at all). The best that can be said for this argument is that perhaps MacDonald simply has not read the Schlesinger, Jones and Fay Reports, because chapter and verse of those reports undermine her account.

The reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, “circulated” freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, “using reasoning” from the President’s February 7, 2002 directive on unlawful combatants (id. at 10). The “existence of confusing and inconsistent interrogation technique policies,” including a “proliferation of guidance and information from other theatres of operation,” and the fact that personnel involved in interrogation in GTMO and Afghanistan “were called upon to establish and conduct interrogation operations in Abu Ghraib,” all contributed “to the belief that additional interrogation techniques were condoned in order to gain intelligence” (Jones 15-16; Fay 8, 10, 22). “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

Most importantly for present purposes, the Fay Report demonstrates that the extreme techniques that have been approved for the CIA, based upon OLC legal advice, have had an inevitable deleterious impact on the interrogation methods employed by the military (including at Abu Ghraib), even though the military is in theory subject to much more restrictive legal rules, such as the UCMJ. “CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib” (pp. 52-53). The CIA practices and techniques led to a “perception” that such techniques and practices “were suitable and authorized for DoD operations” (pp. 118-119).

MacDonald would have us believe that the now-familiar story of the inevitable “migration” of extreme practices from the CIA and from GTMO to our troops in Asia is a myth. Notably, however, she provides no evidence to contradict the accounts in the Schlesinger, Jones and Fay Reports, which demonstrate that such migration was all-too-real. "[T]he events at Abu Ghraib cannot be understood in a vacuum" (Jones/Fay Executive Summary).

Finally, it is worth noting MacDonald’s principal prescription, which is that we ought to eliminate transparency in the law of interrogation: If U.S.-approved techniques are publicly known, she reasons, “interrogators have lost the ability to create the uncertainty vital to getting terrorist information.” The problem, writes MacDonald, is that we have reassured the world of “our limits,” whereas interrogations would be much more effective if detainees thought we were a lawless state, willing to do just about anything to get information (sort of like Jack Bauer on “24”)-- or, at the very least, if detainees had no idea what our interrogators' limits are. This is very much of a piece with the Government’s chilling (but refreshingly candid) argument in Padilla that it was necessary to deny the defendant access to counsel in order to convince Padilla that he was completely outside the protection of the judicial system—that no process was due and that all hope was lost—in order to establish what the Government euphemistically called the “delicate” relationship of “trust” and “dependency” between detainee and interrogator.

As an empirical matter, of course, MacDonald may well be correct: If someone is being interrogated by a nation with secret laws, by a nation that refuses to assure the world that it will abide by its treaty obligations, by a nation with a system of interrogation rules and practices wholly outside the purview of democratic deliberation, public accountability and judicial review, no doubt such an interrogation would be more effective than one that is bound by acknowledged legal limits. Which just goes to show that what MacDonald is really complaining about is that we must, even in interrogation, adhere to the rule of law—an understandable concern in an essay that does not even bother to discuss what the law of interrogation actually is.

Posted 1:47 PM by Marty Lederman [link] (57) comments

stop thief!

Ian Ayres

Years ago, Steve Levitt and I did an empirical study about the impact of Lojack on auto theft. The big surprise was that Lojack had a big deterence effect. For every dollar you spent on Lojack you reduced your neighbors' expected auto-theft losses by about $10.

People spend too much money on "the club" and traditional car alarms that mostly just shift crime they don't reduce it, while Lojack reduces crime because it gives the police a chance to catch the crooks -- the police clearance rate on cars stollen with Lojack is about twice as high as on cars stollen without Lojack.

Levitt and I made a big point out of saying that Lojack doesn't stop your car from being stollen because the thief doesn't know that you have Lojack (it's a hidden transmitter), But in coming back to this issue with Barry Nalebuff, I now see that Lojack does stop your car from being stollen -- because it stops you from stealing it your self. Lojack is an anti-fraud device. Turns out that maybe 20% of all theft is fraud (people steeling their own cars). But the fraud rate in Lojack cars is probably much much smaller. You'd have to be crazy to steal your car with Lojack in it, because you'd know that the police would find you. The commitment not to commit fraud should dreduce the insurance premia that Lojack owners pay on their cars (but doesn't sufficiently).

Another 20% of autotheft may occur because people leave their keys in the car. Leaving your keys in the car isn't just stupid, it's inconsiderate. 20% of police time on autotheft is spent on these crimes, 20% of your insurance premia is because other people leave their keys in the car.

So stepping back, we can see that a lot of auto theft is caused because some people don't take enough precaution (they don't take their keys) and a lot is caused because some people take too much precaution (they use the crime-shifting club). Both of these behaviors are socially inconsiderate and there are simple things that we could do to induce better precaution taking. Barry Nalebuff and I write about several of them in the latest issue of Forbes:

Removing the key . . . impose[s] small inconveniences on the
owner but yield large benefits to society.We need to change social customs.
Folks who make life easier for thieves are imposing costs on the rest of us. The
damage is just like that from secondhand smoke.Modesto, Calif.,which holds the
dubious distinction of having the nation’s highest per capita auto theft rate,
is considering ticketing people who leave their keys in the car.

Posted 9:59 PM by Ian Ayres [link] (38) comments

Understanding the OLC Torture Memos (Part I)

Marty Lederman

[NOTE: This post is in four parts. For ease of reading, and in a departure from the usual blog practice, you can read the posts in order going down the page of the blog—just as in a magazine, or newspaper.]

Following up on Jack’s latest post, I highly recommend this recent column by Professor Michael Dorf of the Columbia Law School, concerning the two publicly released OLC Opinions construing the federal torture statute—the now-infamous August 1, 2002 Opinion and the superseding Opinion that OLC released last Thursday. Professor Dorf is correct that in issuing its new memo OLC has taken a critically important step toward restoring the Office's reputation for providing rigorous and impartial legal advice: I agree with Professor Dorf that the new memo’s author—Acting Assistant Attorney General Daniel Levin—and other OLC attorneys who undoubtedly contributed to the careful and difficult work on the memo, deserve considerable praise (and, from those of us who revere the Office, sincere thanks for respecting many of the Office’s best practices and traditions).

The discrete issue the new Opinion addresses is the meaning of “torture” under one, specific federal criminal statute—18 U.S.C. §§ 2340-2340A, which is often referred to as the federal torture statute. As I’ll discuss in a subsequent post, the most significant thing about both OLC opinions is what they don’t discuss: each is silent with respect to a host of other, more restrictive legal constraints that presumably would apply to government interrogations even where the extremely narrow definition of “torture” is not met.

But on the question that the memos do address—what the torture statute prohibits—the new OLC Opinion is in many respects a great improvement over the 2002 OLC Opinion. Former OLC Deputy Assistant Attorney General John Yoo—who helped draft the 2002 Opinion—was quoted the other day as saying that the new OLC Opinion "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort [in 2002] was to interpret the statute clearly." In an important sense, he is absolutely correct. Because the 2002 Opinion in effect defined torture out of existence (and further advised that even if some techniques were “torture,” they were subject to imagined "self-defense," "necessity," and "presidential approval" defenses)—it sent an unmistakable signal to the CIA that it was free to engage in extremely coercive forms of interrogation without fear of legal exposure. The new Opinion (correctly) concludes that the statute is more restrictive, and that some questions are too close or too abstract to be able to resolve categorically, or apart from teh context of particular cases. This is probably not the sort of unequivocally encouraging and immunizing advice that the CIA was hoping to receive.

Nevertheless, in an important footnote, the new Levin Opinion reassures the agency: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion in many important respects does not affect what the CIA has been authorized to do. (I’ll discuss this issue further in my remaining posts.)

Moreover, the definition of “torture” that the new Opinion adopts remains an extremely narrow one. This is largely not the result of the new OLC analysis, but is instead a function of the fact that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture ("CAT") as a condition of its ratification of that treaty, and the fact that Congress adopted those restrictive terms in the torture statute itself.

Even though the two Opinions therefore come out in roughly the same place, the differences between them are striking, and very important from a practical standpoint. These are among the more significant areas of contrast and repudiation:

1. Even apart from the “merits” of the conclusions in the two Opinions, there’s a world of difference between the two documents in terms of process, tone, methods of analysis and emphasis.

a. For example, from all that appears in the Opinion and in published accounts, in 2002 OLC did not consult the agencies with historical expertise in defining “torture” under federal law—in particular, the State Department. The Opinion is centrally concerned with a statute that implements a U.S. treaty obligation. Interpretations of that treaty, and of its implementing legislation, obviously can have profound effects on our international relations, on the way in which other nations construe the Convention when interrogating detainees (including American detainees) and prosecuting possible treaty violations, and on the development of international law. Therefore, traditionally OLC would solicit the views of the State Department before rendering any advice on an issue such as this, and would reject the State Department Legal Adviser’s views only after extremely careful consideration. In this case, it appears that OLC did not even consult the State Department—even though the State Department actually implements the CAT in connection with extradition cases, and has regulations that are used to implement the statutory definition of “torture.” See 22 C.F.R. 95.1. The 2002 Opinion does not so much as mention such regulations, or any State Department practice with respect to the CAT. (The Opinion is also silent on INS (now Department of Homeland Security) regulations used to implement “torture” provisions in the context of asylum applications.)

By contrast, the Wall Street Journal has reported that OLC sought input from various agencies, including the State Department, before it issued the new Levin Opinion. And the Opinion itself (page 2) reassures the reader that the Criminal Division of DOJ reviewed the document and concurs in its analysis (something that seems hard to imagine with respect to at least some portions of the 2002 Opinion, such as those recognizing defenses of necessity and self-defense).

b. The 2002 Opinion also failed to discuss many of the numerous court cases that have analyzed the meaning of “torture” under the CAT in the immigration context. That 2002 Opinion discussed only a single district court case—and then chose to accept only the aspects of the decision in that case that comported with the conclusions that OLC had already reached earlier in its opinion. An appendix to the Opinion listed several other cases discussing the meaning of “torture”—but, remarkably, the Opinion did not discuss those cases, let alone explain why it was departing from the conclusions reached in several of them.

By contrast, the new Opinion includes a much more careful, thorough and fair reading of the relevant case law defining “torture.” The new Opinion also actually addresses, carefully and respectfully, serious arguments on both sides of the various statutory questions. Where the statute is ambiguous, or where it is impossible in the abstract to resolve a difficult question—such as the meaning of the “specific intent” requirement of the statute—the new Opinion concedes as much, instead of construing the statute (as the 2002 Opinion did) in the most anti-prosecution light possible.

[The next few paragraphs are slightly revised.]

c. The 2002 Opinion construed the federal torture statute without providing virtually any legal or practical context for the question presented. The issue the Opinion attempted to answer was an abstract one concerning a particular, especially restrictive federal law. The opinion did not mention, let alone address, the numerous other sources of federal law that impose greater limitations on government interrogations (many of which I identify in Part III of this post). Therefore, it was likely to leave readers—including government actors making decisions about interrogation techniques—with the distinct impression that conduct not amounting to “torture” is lawful. (After all, if conduct that comes close to the “torture” line without going over is also unlawful, why bother to carefully identify precisely where that line falls? In Part II, I offer an answer to this question—namely, that the Administration apparently had concluded that certain CIA interrogations outside the United States are lawful, no matter how inhumane they may be, as long as they do not constitute statutory “torture.”)

The new Levin Opinion is likewise devoted solely to the federal torture statute. That new opinion, however, quite appropriately notes in footnote 6 that it "does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the UCMJ; the Military Extraterritorial Jurisdiction Act; and the War Crimes Act, among others),” and it emphasizes that “[a]ny analysis of particular facts must, of course, ensure that the United States complies with all applicable legal obligations."

d. The 2002 Opinion was not made public until long after it was leaked and provoked a public outcry—even though the Opinion presumably served as the basis for the United States’s most far-reaching and troubling conduct in the treatment of detainees. There was no obvious reason for the secrecy; and as is now apparent, if OLC had disseminated the 2002 Opinion at the outset—at least throughout the government, if not to the public—the Office would have been made aware much earlier of the weaknesses and gaps in its analysis, and it would not have taken more than two years for the Office to make much-needed corrections.

OLC published its superseding Opinion, in contrast, the evening it was issued.

* * * *

These numerous departures from the traditional OLC practices and methods were not business as usual at OLC, even during the period in question. I happen to know first-hand (see disclosure below) that Assistant Attorney General Bybee and many of the wonderful and dedicated attorneys in the Office, on both sides of the political “aisle,” were producing fair-minded and rigorous Opinions fully consistent with the best traditions of the Office—even in cases where the Office was trying to push the legal envelope, or where its analysis was open to serious debate. In this light, it is hard to avoid the conclusion that the function of the 2002 Opinion on the torture statute was not to provide OLC’s typically balanced and thorough view of the applicable law, nor to give readers (e.g., the White House Counsel and the CIA) a fair and candid assessment of the many close and difficult questions associated with the various federal laws bearing on the issue. If those had been OLC’s objectives, presumably it would have consulted more widely with others in the Executive branch with expertise on the various questions; would have tested, and strengthened, its analysis by insisting upon careful and skeptical preliminary review by others within and outside OLC; would have dealt more forthrightly in the Opinion itself with counterarguments and with the array of relevant judicial precedents and executive understandings; and would have placed the torture statute within a broader legal context in which there are many potentially relevant federal restrictions. The fact that the Office did not do such things leaves the unmistakable impression that OLC saw its role in this particular instance as instead providing legal cover for conduct of questionable legality—i.e., that the function of the 2002 Opinion was to signal a sort of “green light” that might provide an immunity of sorts to government actors who would otherwise face serious legal exposure.

2. Turning to the "merits," the new Opinion offers a much more persuasive interpretation of the torture statute, and goes so far as to expressly repudiate numerous central conclusions of the 2002 Opinion—something that is extremely unusual for OLC to do, especially absent a change in Administrations. For example:

a. The 2002 Opinion concluded (p.3)—without citing any authority—that in order for a defendant to be culpable of torture, he or she would have to actually inflict severe physical or mental pain or suffering. The new Opinion (page 17 n.28) correctly notes that under the plain language of the statute, all that is required is that the defendant have specifically intended to inflict such pain or suffering.

b. The 2002 Opinion—relying upon the definition of “emergency medical condition” in a health-benefits statutes that have nothing to do with the torture statute—construed the phrase “severe physical . . . pain or suffering” in the torture statute to include only the pain associated with “permanent and serious physical damage” that “must rise to the level of death, organ failure, or the permanent impairment of a significant body function” (pp. 5-6), and suggested (p.19) that the pain must be “excruciating and agonizing.” The new Opinion repudiates these conclusions (pp. 2, 8 n.17), and rightly explains that the health-care statutes cited in the 2002 Opinion appear in a “very different context,” define a different statutory term, and do not provide a “proper guide” for interpreting the torture statute.

c. The 2002 Opinion concluded (p.6 n.3) that “severe physical suffering” could under no circumstances be distinct from “severe physical pain,” even though the statute refers to both. The new Opinion expressly rejects this conclusion (p.10), and contains a much more rigorous and nuanced discussion of the possible distinction (pp. 10-12).

d. The 2002 Opinion indicated (pp. 1, 7) that “prolonged mental harm” requires harm that lasts months or years, and that the mental strain suffered during a “lengthy and intense interrogation” would not suffice—a conclusion that is difficult to reconcile with the dictionary definitions the Opinion itself cites, which suggest that to “prolong” means simply to “extend the duration of, to draw out.” The new Opinion (p. 14 & n.24) repudiates the 2002 Opinion’s analysis regarding the meaning of “prolonged,” acknowledges that there is “little guidance to draw upon in interpreting this phrase,” and simply concludes that the mental damage “must extend for some period of time.” The new Opinion also acknowledges (p. 15) that suffering, years after the fact, from flashbacks, nightmares, anxiety and disruptions of sleep, can constitute prolonged mental harm.

e. The 2002 Opinion concluded (pp. 3-4) that the statutory requirement that the torturer “specifically intend” to inflict severe pain or suffering requires that the defendant have had the “precise objective” of inflicting severe pain, i.e., that it is not sufficient that the defendant knew his conduct would result in such severe pain, and that the defendant cannot be guilty of torture unless he acted “with the express purpose of inflicting severe pain or suffering.” The new Opinion declines to adopt these conclusions (pp. 16-17 n.27), and concludes instead (p. 16) that it is not useful for OLC to try to define the precise meaning of the term—i.e., to resolve the very difficult cases between the two extremes—in the absence of any judicial guidance on the question.

3. The unpersuasive interpretation of the meaning of “torture” was not the most egregious aspect of the 2002 Opinion. Having construed the definition down to almost nothing, that Opinion then went a huge extra step and spent nine pages constructing two novel statutory defenses to culpability—“necessity” and self-defense—and arguing that the statute should be construed to permit torture when the President authorizes it. The notion that the statute implicitly includes such defenses (and that it can be construed to recognize an approval-of-the-Commander-in-Chief exception) is extremely implausible, especially in light of the fact that recognizing such defenses would put the U.S. in flat violation of its treaty obligations. Nor did the 2002 Opinion attempt to reconcile its analysis with DOJ’s traditional views on the availability and scope of the relevant criminal-law defenses. The theory of “self-defense” in the Opinion actually had little to do with defense of “self”—which is understandable, because a torturer is rarely in imminent danger of being grievously injured by his detainee. Instead, OLC hypothesized a defense that would excuse torture committed on behalf of the nation’s defense, regardless of whether the threat derives from the person being tortured or whether the threat is imminent. And as to “necessity,” the Opinion failed even to cite the leading authority, the Supreme Court’s decision (issued just two-and-a-half months earlier) in United States v. Oakland Cannabis Buyers’ Co-op, in which the Court (in accord with the views of the Department of Justice) unanimously rejected a “necessity” defense in connection with the Controlled Substances Act, and in which six Justices suggested that necessity can never be a defense when the federal statute does not expressly provide for it. Most importantly, the 2002 Opinion entirely ignored the official position of the United States, articulated in the U.S.’s Report to the UN Committee Against Torture in 1999: “No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a 'state of public emergency') or on orders from a superior officer or public authority.” The 2002 Opinion flatly contradicts this official U.S. position—something the Department, and the White House Counsel, presumably would have known had they bothered to consult the State Department.

The contrasting perspective of the 2004 Levin Opinion is striking. The new Opinion simply states (p.17) unequivocally, and without adornment, that “[t]here is no exception under the statute permitting torture to be used for a ‘good reason.’”

4. Finally, and most notoriously, the 2002 Opinion also concluded that it would be unconstitutional for Congress to prohibit the President from authorizing torture—or, indeed, to interfere in any way with “the President’s conduct of the interrogation of enemy combatants” (p.39) (a proposition that would appear to suggest that the President could ignore the Uniform Code of Military Justice restrictions on detainee treatment, and the Geneva Conventions where they concededly apply). The 2002 Opinion did not even mention the seminal Supreme Court case speaking to the question of statutory limits on the Commander-in-Chief power (Youngstown Steel & Tube v. Sawyer); nor did the Opinion acknowledge that the Constitution gives Congress the powers to define and punish Offenses against the Law of Nations; to make Rules concerning Captures on Land and Water; and to make Rules for the Government and Regulation of the land and naval forces.

The new Levin Opinion eliminates the 2002 Commander-in-Chief analysis, but it does not repudiate it—an important fact that I will touch upon in my next post.

In light of the Levin Opinion’s extraordinary and thorough rebuke of the 2002 Opinion, it is probably fair to ask why the Attorney General and the White House Counsel (the official who requested and received the 2002 Opinion) did not in 2002 immediately send the OLC Opinion back to OLC so that the Office could address what OLC itself now identifies as its manifest and numerous flaws—and why the White House Counsel did not attempt to remedy OLC’s apparent failure to consult with other agencies with expertise on the question, particularly the State Department. (Far from questioning the Opinion or asking for it to be withdrawn, the White House apparently forwarded it to the Defense Department, where it was largely incorporated in the DoD Working Group Report in April 2003.)

[Full disclosure: I worked as an Attorney-Advisor at OLC from 1994-2002, and I was still at the Office when it issued the 2002 Torture Opinion. I did not know anything about that Opinion, however—not even of its existence—until it became the subject of public debate last summer, long after I had left OLC. Nothing in this post reflects any information, confidential or otherwise, to which I was privy while at OLC. I am also one of the 19 former OLC attorneys who has signed a recent memo setting forth proposed “Principles to Guide the Office of Legal Counsel.”]

Posted 9:15 AM by Marty Lederman [link] (18) comments

Understanding the OLC Torture Memos (Part II)

Marty Lederman

Despite the notable and significant improvements of the new Levin OLC Opinion on the federal torture statute that I discuss in the previous post, Professor Dorf is also right to focus upon lingering, serious concerns about two things that are conspicuously absent from the new OLC memo.

First, the new memo does not repudiate one of the most disturbing features of the (now withdrawn) 2002 OLC Opinion—namely, its conclusion that it would be unconstitutional for Congress to prohibit torture undertaken at the behest of the President, and that indeed Congress is entirely powerless to restrict the President’s decisions concerning “what methods to use to best prevail against the enemy.” There is no indication that the Administration has stepped back from this constitutional understanding—notwithstanding the fact that all nine Justices of the Supreme Court in effect repudiated OLC’s Commander-in-Chief theory in the Court’s Hamdi decision last summer. (I elaborate on this reading of Hamdi here.)

When pressed on this Commander-in-Chief question at his nomination hearing yesterday, Judge Gonzales repeatedly refused to distance himself from OLC’s 2002 legal analysis. To his credit, however, at the end of his testimony Judge Gonzales stated that he “reject[s]” the statement in the 2002 Opinion that “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

Going forward, the bold assertions of presidential power in the 2002 OLC Opinion will undoubtedly be one of its most controversial, and most important, legacies, for good or ill. Whether and to what extent the President may invoke his Commander-in-Chief authority to override congressional restrictions concerning the extraordinarily broad subject matter of “what methods to use to best prevail against the enemy” is an incredibly important and fundamental constitutional question, but one on which there has been surprisingly little serous, sustained analysis—in OLC opinions, in the case law, or in the academic literature. (Anyone interested in this question—and every incoming OLC and White House Counsel attorney—should view this video of a terrific panel discussion at a recent Duke Law School Conference, in which the question is pondered by, inter alia, Professors Bill Marshall, Jeff Powell, David Barron, Vicki Jackson, Michael Gerhardt and Walter Dellinger.)

But I’d like to put the Commander-in-Chief question aside in this post in order to focus on the second “missing piece” that Professor Dorf identifies, which has much more immediate practical implications: The new OLC Opinion, in common with the 2002 memo it supersedes, does not at any point reveal why OLC is even bothering to engage in the very sensitive and difficult task of identifying the elusive “tipping point” at which severely coercive interrogation crosses the line to become “torture” under the specific, restrictive definition of the federal torture statute.

According to the Administration and its allies (see, e.g., Senator Cornyn’s recent Op-Ed, a recent White House press briefing, and Pentagon General Counsel Haynes's letter to Senator Leahy), the President has required that all detainees be treated “humanely,” and that U.S. interrogators must refrain from using not only torture, but also what some have called “torture-light,” i.e., what the Geneva and Torture Conventions refer to as “cruel, inhuman and degrading treatment.” Well, if that is the case, then Professor Dorf's confusion is entirely understandable: If “U.S. personnel are not supposed to engage in torture or cruel, inhuman or degrading treatment of prisoners," he writes, then "there is no necessity to clarify the line between the two categories of forbidden conduct; yet the December 2004 memo does just that.”

So why do both OLC Opinions go to such great trouble, and great length, to determine exactly how one can distinguish between “cruel” treatment on the one hand, and what the new memo refers to as “extreme forms” of cruel treatment, on the other? This fine parsing is a very odd thing for OLC to be doing if both forms of treatment are unlawful. OLC's proper role is not to distinguish, for Executive Branch officials, among different forms of unlawful conduct, so as to identify those that are subject to the highest criminal sanctions, on the one hand, and those that are "merely" prohibited, but without severe sanction, on the other. (Perhaps that is the function of a defense lawyer—but not of OLC.) OLC's proper role, instead, is to inform the Executive Branch as to what conduct is lawful.

I suspect, however, that there is a very specific, operational reason that OLC has expended such time and effort (twice, now) to “clarify the line” between torture and “merely” inhumane treatment: In this Administration’s view, when the CIA is engaged in interrogating suspected Al Qaeda operatives outside U.S. jurisdiction, the agency is not bound by any standard of “humane treatment,” and may lawfully engage in cruel, inhuman and degrading treatment, as long as the Agency’s conduct does not technically constitute “torture.” If I am right about this, then the function of the OLC Opinions has been to identify the legal limits, if any, that apply to interrogation techniques used by the CIA on suspected Al Qaeda operatives at locations outside U.S. jurisdiction—a context in which the Administration apparently has concluded that the CIA is bound only by the quite narrow proscription of the torture statute.

Thus, for example, the President's February 7, 2002 "humane treatment" directive was carefully worded to apply only to the Armed Forces—not to the CIA. Similarly, in recent months the Senate has twice voted to prohibit the CIA, and all U.S. personnel, from engaging in cruel, inhuman and degrading treatment—but on each occasion, the Administration has resisted, and that language has been stripped from the bills in conference (even after the 9/11 Commission recommended it).

Note, as well, that in yesterday's hearing Judge Gonzales was very careful to qualify his statement that “[i]t has always been the case that everyone should be treated—that the military would treat detainees humanely, consistent with the president's February order.” And when Senator Durbin asked him point-blank yesterday "whether or not it is legally permissible for U.S. personnel to engage in cruel, inhuman, or degrading treatment that does not rise to the level of torture," Judge Gonzales did not answer with a simple "no"; instead, he provided a very cautious and ambiguous answer, the gist of which was "that all authorized techniques were presented to the Department of Justice, to the lawyers, to verify that they met all legal obligations, and I have been told that that is the case."

All of this is fairy strong evidence that the Administration has gone to significant lengths to preserve a significant CIA loophole. Judge Gonzales now claims that he has no “specific recollection” whether it was the CIA that asked for legal advice on the meaning of the torture statute. It is difficult to credit this assertion, however, because according to numerous accounts such as this one, the original impetus for the OLC Opinion was an inquiry from the CIA, which, according to those accounts, is detaining and interrogating high-level Al Qaeda detainees at undisclosed foreign locations.

Especially notable are the specific questions to which the CIA was seeking answers—such as whether it may lawfully use extreme methods such as waterboarding, the threat of live burial, and threatening rendition to sadistic interrogators in other nations. Perhaps such techniques are not necessarily “torture” under the narrow statutory definition. Perhaps they are. But one thing would appear fairly clear: Whatever else they are, or are not, these techniques are not under any perspective (short of an Orwellian nightmare) what one would call "humane.” Likewise, if our treaty obligations to refrain from “cruel, inhuman and degrading treatment” do apply to the CIA outside U.S. jurisdiction, then such techniques would be unlawful wholly apart from the torture statute, because they would clearly "shock the conscience" and thus violate the Due Process Clause if performed within the U.S. (which is the U.S.-approved standard for what the “cruel, inhuman and degrading” prohibition forbids).

But it appears increasingly clear that the Administration has concluded that the CIA is not required to act “humanely” in this context, and is not required to refrain from conduct that shocks the conscience. If this is correct, then the reason the OLC Opinions are focused on the torture statute—to the exclusion of the numerous other legal norms that might be thought to impose much more stringent constraints on interrogation—is that the Administration has determined that none of the stricter standards that govern the interrogation of U.S. armed forces regulates what the CIA can do at the locations outside U.S. jurisdiction.

How could the Administration have reached such a legal conclusion? I'll address that question in my next post.

Posted 9:10 AM by Marty Lederman [link] (16) comments

Understanding the OLC Torture Memos (Part III)

Marty Lederman

For those who are interested in the legal details, here’s a brief look at the numerous other possible sources of law that, some might argue, may restrain the conduct of CIA interrogations of suspected Al Qaeda operatives outside U.S. jurisdiction, with an explanation of why the Administration has (or has likely) concluded that each source of law is inapposite in the context of the CIA interrogations in question. (Readers uninterested in the legal details can skip ahead to the final couple of paragraphs, below.)

1. The Eighth Amendment. Prohibits cruel and unusual punishment.

Not applicable here because: (i) The Administration contends that the Constitution does not protect aliens overseas; and (ii) these interrogations do not involve punishment, as such.

2. The Due Process Clause of the Fifth Amendment. Prohibits conduct that “shocks the conscience.” At least three, and probably as many as five or six, Supreme Court Justices likely share the view Justice Kennedy expressed in 2003 in Chavez v. Martinez that “a constitutional right is traduced the moment torture or its close equivalents are brought to bear. . . . [I]t seems . . . a simple enough matter to say that use of torture or its equivalent in an attempt to induce a statement violates an individual's fundamental right to liberty of the person."

Not applicable here because: In the Administration’s view, the Due Process Clause of the Fifth Amendment does not of its own accord provide any constitutional rights to aliens overseas—including the right not to be treated in a manner that shocks the conscience. (This is a very hotly contest legal question right now because of footnote 15 of the Supreme Court’s recent decision in Rasul; and it is currently being litigated in the Guantanamo habeas cases being considered in the U.S. District Court for the District of Columbia in the wake of Rasul.)

3. The Uniform Code of Military Justice. Prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). Senator Graham focused on this yesterday—he questioned why OLC was bothering to construe the torture statute so narrowly when the UCMJ obviously imposes much more stringent limitations.

Not applicable here because: The UCMJ does not apply to the CIA.

4. President’s February 7, 2002 “Humane Treatment” Directive. Requires that the Armed Forces must “treat detainees humanely.”

Not applicable here because: The directive is carefully worded so as to apply only to the Armed Forces, and not to the CIA.

5. Third (POW) Geneva Convention, Article 17. Prohibits all coercive, unpleasant and disadvantageous treatment of POWs: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”

Not applicable here because: The Administration has concluded that Al Qaeda is not a contracting party and thus that Al Qaeda detainees are not POWs protected by article 17.

6. Fourth (Civilian) Geneva Convention, Article 27. Requires that protected persons “shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”

Not applicable here because: The Administration has concluded that the Civilian Convention applies only to “civilian non-combatants” and that alleged Al Qaeda detainees do not qualify because they are “unlawful combatants.”

7. Common Article 3 of the Geneva Conventions. Provides that “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, [and] the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . . (c) outrages upon personal dignity, in particular humiliating and degrading treatment.”

Not applicable here because: The President has determined that common Article 3 does not apply to the war against Al Qaeda because the conflict is “international in scope.”

8. Protocol I to the Geneva Conventions, Article 75. Provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances,” that “[e]ach Party shall respect the person, honour, convictions and religious practices of all such persons,” and that “[t]he following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; . . . and (e) threats to commit any of the foregoing acts.”

Not applicable here because: The U.S. has refused to ratify Protocol I.

9. Convention Against Torture, Articles 1, 2 and 4. Requiring signatory parties, such as the U.S., to ensure that all acts of torture (and attempts to commit torture and complicity or participation in torture) are offenses under its criminal law, and to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction, without permitting any “exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency,” or superior orders, to be invoked as a justification of torture.

Not independently applicable here because: The Senate ratified the CAT subject to certain restrictive understandings and reservations of the definition of "torture" in these articles, which were incorporated in the narrower definition of “torture” in the federal criminal statute. These articles therefore establish a binding norm only with respect to “torture” as it is narrowly defined in 18 U.S.C. §§ 2340-2340A (see No. 17, below).

10. Convention Against Torture, Article 16. This is the provision on which Prof. Dorf focuses. It requires each state party, such as the U.S., 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 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 U.S. ratified article 16 subject to the understanding that this article refers only to conduct that would violate the Fifth, Eighth and Fourteenth Amendments—for present purposes, conduct that would “shock the conscience” under Due Process Clause standards.

Not applicable here because: The CIA is not acting “in any territory under [U.S] jurisdiction,” but is instead interrogating detainees in foreign jurisdictions. In other words, when the CIA takes detainees into foreign jurisdictions and engages in coercive interrogations there—even interrogations that would be unconstitutional here in the United States—it need not worry about whether article 16 applies. [The Bush Administration might also argue that the conduct in question does not shock the conscience in light of importance of the asserted government objective—viz., obtaining valuable intelligence in the war on terror. This would be a highly contested, and risky, proposition. In his hearing, Judge Gonzales also hinted at another rationale: that because the Constitution itself does not (in the Administration’s view) provide aliens outside the U.S. with any substantive constitutional rights, then article 16 (which is construed in accord with the Constitution) likewise does not provide any substantive protections outside the U.S. (a theory that, if correct, would appear to render article 16 inoperative at Guantanamo, too).]

11. International Covenant on Political and Civil Rights, Article 7. Provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The U.S. also ratified this subject to a limiting reservation that, for present purposes, limits the Article to cover only conduct that “shocks the conscience.”

Not applicable here because: According to the DoD Working Group Report (at page 6), the U.S. “has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict”—even though such limitations do not appear in the provision itself (in contrast to article 16 of the CAT), and even though there is some international law precedent to the contrary. Presumably the U.S. position that the Covenant does not apply extraterritorially is based upon Covenant Article 2.1, which states that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.”

12. Customary International Law. Some contend that CIL prohibits all cruel, inhumane and degrading treatment.

Not applicable here because: The U.S. has long asserted that CIL does not bind the Executive Branch, even where the Executive Branch has historically opted to act in accord with CIL standards.

13. Common Law of the “Law of Nations” Enforced Via the Alien Tort Statute, 28 U.S.C. § 1350. The Supreme Court recently held in Sosa v. Alvarez-Machain that Congress intended to permit the Alien Tort Statute to be used to enforce a “modest number” of common-law claims based upon “norms of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms” of violation of safe conducts, infringement of the rights of ambassadors, and piracy.”

Not applicable here because: Before the decision in Sosa, the Administration argued that the ATS cannot be used to enforce any common-law CIL claims. After Sosa, presumably the Administration would argue that cruel, inhuman and degrading treatment against aliens overseas that falls short of what U.S. criminal law defines as “torture” is not “defined with a specificity comparable” to the three 18th-century torts identified in Sosa, and thus does not constitute a legal norm that Congress has recognized as binding and enforceable through the ATS. Obviously, this is a highly contestable proposition—but one that almost certainly will not be seriously challenged until a detainee actually litigates such an ATS claim.

14. Durbin Amendment to the 2005 DoD Authorization Act. Would have categorically provided that “[n]o person in the custody or under the physical control of the United States shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.”

Not applicable here because: Although the Senate voted unanimously in favor of the bill that included this prohibition, it was stripped out in Conference and replaced with boilerplate “sense of the Congress" and "U.S. Policy" provisions, which appear as subsections 1091(a)(8) and (b)(1) of the final bill as enacted.

15. 2005 DoD Authorization Act, Section 1091(b)(1). Provides that “[i]t is the policy of the United States to—ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." (Similarly, at his hearing, Judge Gonzales stated that “it is not the policy of the administration to tolerate torture or inhumane conduct toward any person that the United States is detaining.”)

Not binding here because: The Executive Branch has traditionally construed such “policy of the U.S.” provisions (and "sense of the Congress" provisions) as hortatory and as thus not establishing supreme law of the land binding the Executive.

16. Durbin Amendment to the Intelligence Reform Act of 2004. The 9/11 Commission recommended that the U.S. develop policies to ensure that all captured terrorists be treated humanely. The Intelligence Reform bill that the Senate approved would have done so: It included a Durbin Amendment that would have expressly applied the prohibition on cruel, inhuman and degrading treatment to the intelligence community.

Not applicable here because: The House Conferees (presumably with the support of DoD), insisted on deleting that prohibition in the final bill that the President signed last month.

17. The Federal Torture Statute: 18 U.S.C. §§ 2340-2340A. Finally, we come to the singular subject of the OLC Opinions. This criminal statute provides that it shall be unlawful for anyone outside the United States to commit, attempt to commit, or conspire to commit, torture. Torture is defined as an act “committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”; and the statute in turn defines ''severe mental pain or suffering'' to mean “the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

This criminal statute is applicable to CIA interrogations of aliens outside U.S. jurisdiction. Accordingly, the function of the OLC Opinions is to address this statute—a prohibition that is, in the Administration's view, the only legal constraint on CIA interrogations committed against aliens outside U.S. jurisdiction.

* * * *

I don’t mean to suggest that the Administration is necessarily wrong about the inapplicability of any of the other legal norms against inhumane and coercive treatment that I’ve identified above. Indeed, the Administration is almost certainly correct that the majority of those legal constraints do not apply to CIA interrogation of suspected Al Qaeda operatives outside U.S. jurisdiction. And although there are very serious debates about some of the Administration legal positions described above, I think it would be hard to say conclusively that the Administration is obviously wrong on any of them.

But even if the Administration is wrong as to one or more of them, the point I’m trying to establish here is simply that—contrary to the impression it is trying to convey to Congress and the public—the Administration has likely concluded that the CIA is not bound by any of these restrictions on cruel, inhuman and degrading treatment. Thus, on this view, as to CIA interrogation of Al Qaeda suspects outside U.S. jurisdiction, the torture statute is the whole ballgame, and inhumane conduct that falls short of "torture"—i.e., conduct that is, in the words of the Levin Opinion (p.6 and n.14), a “lesser form,” rather than an "extreme form,” of cruel, inhuman and degrading treatment—is legally permissible.

With this in mind, it becomes clear that perhaps the most important part of the new Levin Opinion is footnote 8, which reads: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion does not in any significant way affect what the CIA has already been specifically authorized to do. And the Administration has concealed from the public (and perhaps from the Congress, too?) the extreme forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

Final post to follow.

Posted 9:05 AM by Marty Lederman [link] (9) comments

Understanding the OLC Torture Memos (Coda)

Marty Lederman

Of course, even if CIA conduct outside U.S. jurisdiction is the not-so-secret subtext of the OLC Opinions, the current scandal concerning torture and inhumane treatment is hardly limited to the CIA. For, even in contexts where the President’s directive of “humane” treatment, and the prohibition on cruel, inhuman and degrading treatment, indisputably do apply, the Department of Defense appears to have a fairly unorthodox understanding of what it means to act "humanely" and to refrain from conduct that shocks the conscience.

Whatever the law might be with respect to the CIA, it is not disputed that the Armed Forces at GTMO, and in Iraq and Afghanistan, are subject to the President's directive of "humane treatment," are required to abide by the article 16 prohibition on cruel, inhuman and degrading treatment (because they are acting within U.S. jurisdiction), and are subject to the prohibitions of the UCMJ against cruelty, oppression or maltreatment of prisoners, assaulting prisoners, and communicating a threat to wrongfully injure a detainee. The Pentagon, in its Working Group Report, agrees that these restrictions apply.

And yet, according to several accounts, such as Neil Lewis’s story in the New York Times this past weekend, techniques that apparently have been approved at GTMO include:

-- prolonged sleep deprivation;

-- shackling prisoners in uncomfortable positions for many hours (to the point where one detainee who had been shackled overnight in a hot cell soiled himself and pulled out tufts of hair in misery);

-- tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

and, in at least one case,

-- tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GTMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Similarly, in its Report the DOD Working Group apparently concluded that the following techniques were “humane” and consistent with the UCMJ, the “shocks the conscience” standard, and other legal norms: Placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death. (It is not clear whether the Pentagon has ever formally approved these techniques, nor how often, if at all, military interrogators have used them.)

There are extremely strong arguments that if they approved or used certain of these techniques, military officials and other personnel have violated the law—including the UCMJ, article 16 of the CAT, the Geneva Conventions (as to detainees protected by those treaties), and the President’s directive that detainees be treated “humanely”—wholly apart from the torture statute that the OLC Opinions discuss. (Indeed, from the time of the 2001 enactment of the USA PATRIOT ACT until the enactment of the 2005 Defense Authorization Act this past October 28th, the torture statute itself did not even apply to GTMO because of a technical jurisdictional provision.)

And, in any event, if those recent accounts are correct about what the Pentagon has actually approved and implemented at Guantanamo, then the President’s assurance that all Armed Forces detainees be treated “humanely,” and that the military does not engage in cruel, inhuman and degrading treatment, ring hollow.

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

If we begin such a debate, here's one modest question to consider: Would it be too much to ask that Congress approve—and the President sign—a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment—including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

P.S. In this series of posts, I may very well have misread the law in certain respects, or failed to properly understand some of the minutiae of the complex legal framework. I would very much welcome any corrections, additions or other editorial suggestions -- thanks.

Posted 9:00 AM by Marty Lederman [link] (1) comments

To Our Great Shame

JB

The hearings on the nomination of Alberto Gonzales to be Attorney General of the United States have begun. Will no one in Congress say what should be obvious? That Gonzales has brought shame on our country by trying to devise legal strategies and arguments to circumvent laws against torture and to define away the abuse of prisoners? That such a man should not be the nation's chief law enforcement officer? This is not mere cronyism or financial corruption we are talking about. It is torture.

How can we tell the other countries of the world that we are genuinely interested in democracy or in human rights? Who will listen to us when our own soldiers are captured and abused?

The public has so far been largely silent about this great injury to America's image around the world. The feckless Democrats in Congress, humbled by their recent electoral loss, lack the courage to denounce what should be denounced, or to act on the courage of their convictions. And the party that runs the country is all too happy to sweep the problem under the rug. But the rest of the world is watching. And they will not soon forget. For years to come we will hear about America's mistreatment of prisoners, and how we failed to punish the architects of that policy, indeed, how we elevated and honored them, even after the sorry details were disclosed to a public unwilling to face them.

Almost a year ago, President Bush stood before the United States Chamber of Commerce and waxed eloquent about the importance of bringing human rights, the rule of law and democracy to the countries of the Middle East. He denounced the "[d]ictators in Iraq and Syria [who] promised the restoration of national honor, a return to ancient glories, [but who] left instead a legacy of torture, oppression, misery, and ruin." And he spoke eloquently of the key ingredients of successful societies throughout history, societies, he explained, who "limit the power of the state and the power of the military," who "protect freedom with the consistent and impartial rule of law, instead of selectively applying the law to punish political opponents," who "prohibit and punish official corruption," and who "instead of directing hatred and resentment against others . . . appeal to the hopes of their own people."

In the past months we have learned that our country systematically tortured and abused prisoners. It was not, we have learned, the work of a few bad apples, but a widespread practice. At the same time, lawyers for the Administration spent countless hours crafting legal mystifications and specious arguments to justify abusive prisoner interrogations by the CIA and military forces, and to explain why the President of the United States, who swears an oath to make sure that the laws be faithfully executed, has no legal obligations whatsoever to abstain from torturing people.

The question I want to know is this: Is America still a successful society?

Posted 5:07 PM by JB [link] (16) comments

Constitutions in Exile

Mark Graber

A central question being debated in the press and in blogosphere is whether the Republican party hopes to restore the Constitution-in-exile. Part of the debate is over who uses the phrase "Constitution-in-exile" or, as the phrase Jack Balkin first coined, "shadow constitution." Who cares. The more serious point is that a great many conservatives would like to change official constitutional meanings in areas ranging from federalism to abortion to property rights to the commerce power. But even here "Constitution-in-exile" is a misnomer. The correct expression is "Constitutions-in-exile." Randy Barnett’s lost constitution is quite different from William Rehnquist’s or the average Christian conservative’s constitution. The real issue for the future is which conservative constitution in exile is the Bush administration going to push for. My guess at the end of the day is that it will be more libertarian than social conservative, that social conservatives will be successful only when, as in the Boy Scout and voucher cases, they can tie religious worldviews to antistate themes. When in doubt in politics, bet on the elite.

One response to this conservative movement is the development of alternative shadow constitutions or progressive constitutions-in-exile. But contrary to Orin Kerr’s recent blog, I think this is not the most valuable exercise for progressives at the moment. The law review essay he quotes points out that lots of alternative progressive shadow constitutions exist and no need exists for refinement until progressives actually take power. The world changes rapidly and what seem progressive (or conservative) positions at some times rapidly change with events and windows of constitutional opportunity. Robert Bork provides a good object lesson here. Most people consider his 1971 piece to be the main conservative constitution-in-exile, but the decisions Bork criticized (free speech, birth control) are central to present conservative constitutionalism, whereas he had nothing to say about the revival of the 11th Amendment and takings clause. The better rethinking for progressives to consider why we are losing elections.

Here some rethinking of abortion and the sexual revolution may be in order, but for different reasons that Jack Balkin suggests in a different post. The main problem with abortion and gay rights in constitutional theory and progressive politics is they seem to have some tendency to push the rights of the poor to the side. The real problem with overruling Roe may be that the pro-choice candidates who then do better in elections will not talk at all about welfare or the rights of the less affluent Americans. Progressives need not abandon their commitment to pro-choice policies and gay rights, but they need to speak as loudly for the rights of the less fortunate. Otherwise we are likely to have a polity where one party fights to the death for tax cuts while caving on abortion, while the other party fights to the death for abortion rights while caving on tax cuts.

Posted 1:19 PM by Mark Graber [link] (42) comments