Understanding the OLC Torture Memos (Part II)

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First, the new memo does not repudiate one of the most disturbing features of the (now withdrawn) 2002 OLC Opinion—namely, its conclusion that it would be unconstitutional for Congress to prohibit torture undertaken at the behest of the President, and that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.