The OLC Memos
posted by Gerard Magliocca
I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.
First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.
Second, the memos often erroneously treat the definition of torture as an issue of first impression. Framed in that way, the techniques in question are hard to assess. If I starting asking, “Does this cause severe pain?” or “Does that cause severe pain?” reasonable people would disagree with respect to certain practices. But some of the methods under discussion have been used for centuries and were commonly understood as torture. For instance, waterboarding was employed by the Spanish Inquisition, the Gestapo, and the Khmer Rouge (among others). This historical practice was the background for the anti-torture statutes and conventions. Thus, a proper analysis should have explained how (notwithstanding those traditions) our use of those methods could be distinguished (which would be pretty hard).
Third, the memos seek to introduce a necessity defense into the torture or “shock the conscience” analysis that either isn’t there or is subject to serious objections. The third Bradbury memo observed that the State Department calls many of the techniques that we were using torture when practiced in other nations. But then the memo, in part, dismisses the force of that point by saying that other nations use these methods for relatively trivial purposes, while we were using them to protect America. The end, in a sense, justifies the means. One difficulty with the memo’s analysis is that many regimes that inflicted torture probably thought they were doing it for a good reason. The Inquisition was trying to defend the Faith, the Nazis were trying to defend racial purity, the Khmer Rouge was trying to defend the workers’ paradise, etc. That’s why the whole point of banning torture was to prohibit certain types of conduct without regard to motive. The rack or the thumbscrew can’t be used even it works really well at getting information and is done for an excellent reason. Treating torture as a relative harm rather than as a categorial ban is contrary to that understanding, and that departure is not really explained in the memos.
Finally, let me conclude by nominating a “controlled acute event” (for waterboarding) as my candidate for “Euphemism of the Year.” (Followed closely by “legacy assets” to describe the worthless paper that the banks are holding and “surgical bankruptcy” to described the worthless assets that GM is holding.)
April 17, 2009 at 8:35 am
Posted in: Jurisprudence
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Responses (3)
Patrick S. O'Donnell - April 17, 2009 at 10:37 am
Excellent points, all, but permit me to comment on the third: you’re absolutely right, and those that penned the laws against torture were well aware of the “necessity defense” as an oft-invoked justification, hence, as you state, the categorial ban (e.g., it is explicitly ruled out in the Geneva Conventions; as Larry May notes, this is a ‘clear-cut anti-utilitarian rule’). The “ticking time bomb” scenario/hypothetical is the exemplary case here, and the myriad problems associated with it have been discussed by Henry Shue, David Luban, Thomas P. Crocker, among others. Most recently and thoroughly, see Yuval Ginbar’s book, Why Not Torture Terrorists? Moral, Practical, and Legal Aspects of the ‘Ticking Bomb’ Justification of Torture (2008). See too Thomas P. Crocker’s ‘Overcoming Necessity; Torture and the State of Constitutional Culture,’ available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116680, and the case *Public Committee Against Torture in Israel v. The State of Israel et al.,* (1999).
And the principle of “humane treatment” clearly trumps the principles of discrimination, proportionality, and necessity in international humanitarian law (IHL), at least upon a close reading of the Hague and Geneva Conventions, hence, for instance the significance of Common Art. III to the latter on “inhumane treatment.” I think May has it right: “In many ways, the principle of humane treatment in international law is the principle of due process in domestic law, in that both principles aim at treating everyone with a minimum of humanity.”
Among long-standing euphemisms for torture: “moderate physical pressure,” “enhanced interrogation,” “highly coercive interrogation,” and “pushed interrogation” (Please see Darius Rejali’s indispensable book, Torture and Democracy, 2007).
Maryland Conservatarian - April 17, 2009 at 1:24 pm
for “Euphemism of the Year”, I have to believe Secretary Napolitano has it wrapped up with her lawyerly why-use-one-word-when-three-will-do “man-caused disasters”
Landon Alger - October 27, 2009 at 8:15 pm
It seems to be fashionable to brush aside the issue of whether America has any justification to use harsh methods of interrogation — call it torture if you choose — on a very exclusive group of suspects captured under very particular circumstances.
I am just not comfortable comparing this fact pattern to the Hitler, Mao, or the like. America isn’t initiating a world conquest or breeding a master race — we are responding to terrorists who have expressed and exercised their intent to kill civilian Americans. If the state has the means to get valuable information from suspects, it has a duty to use those means to protect its citizens. Ultimately, this is a non-issue in a sovereign country.
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