Wednesday, April 22, 2009
Brian Tamanaha
When determining whether a potential criminal suspect has violated the law, would you rely entirely upon the assurances of that person that he did not commit the crime?
Of course not! Any lawyer who does this would prima facie be acting in bad faith. The recently released torture memos do precisely that.
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This is manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. The OLC legal opinion, to put it more bluntly, is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability.
This passage from the 10 March memo is even more explicit:
This possibility (that sleep deprivation reduces pain tolerance) suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you (CIA) have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.
The OLC thus issued a legal opinion sanctioning the legality of these interrogation practices based entirely upon the promise of the potential criminal suspects that they would not violate the law when engaging in these practices.
What’s bizarre about the analysis is that the CIA purports to be asking the OLC for an opinion about whether the interrogation practices are legal, whereupon the OLC concludes that they are “not illegal” by pointing to the assurances of the CIA that they inflict a level of suffering that falls short of the legal limits. It’s a perfect, and perfectly empty, circle.
This bad faith analysis runs through the latest batch of torture memos.
A crucial difference must be noted between the objection raised here and criticisms of the infamous Bybee/Yoo torture memo that defined “severe suffering” as equivalent to organ failure or death. Supporters who defended that memo as a “good faith” exercise in legal reasoning (however badly flawed) could at least point to a margin of uncertainty that exists with respect to legal analysis.
The problem identified in this post is not about legal uncertainty at all. It raises the distinct point that there was no independent or reliable factual basis to support the legal opinion. Without such a factual basis, the legal opinion simply could not be issued in good faith.
(Addendum: One final point should be made in response to comments in connection with the previous post. The torture memos subtly shift from the “severe suffering” aspect of the statute to the “intentional infliction” aspect. The OLC lawyers reason, time and again, that the presence of medical personnel at the interrogation sessions is compelling evidence that that there was no “intent to inflict” severe suffering. According to this argument, the care the CIA took to protect the prisoners from severe suffering defeats the intent element of the anti-torture statute. (The surreal part of this argument is that, as we now know, the limits were in fact exceeded.)
This reasoning too fails, and for a simple reason that can be demonstrated with waterboarding. If waterboarding inflicts “severe physical or mental suffering,” then the intention element is necessarily satisfied whenever a prisoner was waterboarded (unless the prisoner was accidentally strapped to the board, a wet towel accidentally shoved in his mouth, and a continuous stream of water accidentally poured on his face). The presence of a “medical officer” watching it happen does not negate the intent to waterboard the prisoner. If keeping a prisoner continuously awake for 180 hours, chained in an upright position, inflicts “severe physical or mental suffering,” then the intention element is satisfied by keeping the prisoner in that condition. It doesn’t matter that medical officer came by to check every now and then.
Second addendum: On a different aspect of questions surrounding torture, Bernard Harcourt uses the latest batch of memos to demonstrate the flaws in arguments that torture should be “legalized but regulated.” Although I find Harcourt’s analysis persuasive, my objection is simpler: torture is a horrific act that destroys human dignity and therefore should not be legalized.)
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