By Jason Ralph
Last week saw the release of yet another torture memo from the OLC. This one was written by Steven Bradbury and is dated July 20, 2007. Having read it alongside the Bybee August 2002 and the Bradbury May 2005 memo, I think we can identify separate arguments and possibly even a gradual shift from what sociologist Stanley Cohen called ‘interpretive denial’ (“what happened is really something else”) to ‘implicatory denial’ (“what happened can be rationalized”). For example, in 2002 Bybee famously argued that torture was not torture (it was enhanced interrogation) because the proposed techniques did not involve severe pain or prolonged mental harm. In the 2005 memo Bradbury in effect argued that EITs were not cruel, inhumane or degrading if they took place outside the United States. Bradbury argued in that memo that Art.16 of the Convention Against Torture (CAT) is inapplicable because the US interpreted this aspect of CAT in terms of the 5, 8th and 14th Amendment to the US Constitution and that is not applicable extraterritorially. The July 2007 memo, however, deals with the application of theDetainee Treatment Act, which states that “no individual in the custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment. “ This forces the CIA to abide by Article 16 CAT. “Taken as a whole”, Bradbury states, “the DTA imposes a statutory requirement that the United States abide by the substantive standards applicable to the US under its reservation to Article 16 of the CAT in the treatment of detainees regardless of location or citizenship.”
This is where the shift from ‘interpretive’ to ‘implicatory’ denial takes place. That is the OLC stops arguing that the actions do not constitute torture and starts acknowledging that the action may be cruel but it can nonetheless be rationalized according to some kind of situational and consequential ethics. The steps to this argument are as follows. Bradbury notes that only the 5th Amendment is applicable here as the 14th amendment does not apply to government action and the 8th amendment applies only in the case of a conviction. On the 5th Amendment, Bradbury recalls that ‘substantive due process protects against interrogation practices that “shock the conscience”.’ This is taken from the famous Rochin v California case in which California police forced a suspect to vomit so he would give up the evidence he had swallowed. Taking this standard, Bradbury then argues that the current case of CIA interrogation
“requires a balancing of interests that leads to a more flexible standard than the inquiry into coercion and voluntariness that accompanies the introduction of statements at a criminal trial, and the governmental interests at stake may vary with context. The Supreme Court has long distinguished the government interest in ordinary law enforcement from the more compelling interest in safeguarding national security …. In evaluating the techniques in question, Supreme Court precedent therefore requires us to analyze the circumstances underlying the CIA Interrogation program – limited to High Value terrorist detainees who possess intelligence critical to the global war on terror – and this clearly is not a context that has arisen under existing federal court precedent. Thus the test is whether conduct is arbitrary in a constitutional sense or whether it is proportionate to the government interest involved.”
The memo then argues that the techniques are not as brutal as those that have shocked the conscience of US courts and that the government interest in this case – i.e. national security rather than law enforcement – is much greater than courts have considered in the past. On this basis, the techniques proposed by the CIA – and it should be noted that it is only asking about 6 on the lightest techniques not 10 techniques as was the case in 2002 – are thought not to shock the conscience. The CIA can therefore go ahead.
We know from the exchange of letters between the CIA and OLC in November of 2007 that these EITs were being used in the interrogation of a HVD that month.
What I find interesting about this memo when it is read in the context of the previous OLC memos is that it was nearly six years after the September 11 attacks before the OLC grounded its reasoning in situational or consequential ethics. Most theoretical discussion of the torture question starts at this point, which is understandable of course because it is the point where the moral questions are most interesting. But in practice it appears that the anti-torture norm did have a hold on the US and delayed the moment when those employed to justify the actions were willing to acknowledge that CIA actions were cruel. So, prior to 2007 and the consideration of what the DTA meant, the DoJ sought ways of reconciling CIA practices with the anti-torture norm, which included denying that the actions constituted torture (2002) and denying that the norm was universal in scope (2005).
This argument also demonstrates yet again, the importance of framing the 9/11 attacks as acts of ‘war’ rather than ‘law enforcement’. The implication here is clear – because this is a national security matter the government can engage in actions that would have otherwise shock the conscience.
Finally, there’s an interesting footnote to this, which offers a new take on Kagan’s famous quip that Americans are Hobbesians from Mars and the Europeans are Kantians from Venus. In its discussion on decisions by foreign tribunals, it examines the decision of ECHR in Ireland v. United Kingdom,  which held that interrogation methods used against the IRA were ‘inhuman and degrading’. It then notes that ‘the ECHR made no inquiry into whether any governmental interest might have reasonably justified the conduct at issue in that case – which is the legal standard the DTA requires when evaluating the CIA’s proposed interrogation techniques. The lack of such an inquiry reflects the fact that the ECHR’s definition of “inhuman and degrading treatment” bears little resemblance to the US constitutional principles incorporated under the DTA.’ (p.40). Earlier in the memo (p.31), it describes a European-type position in terms of the ‘catergorical imperative’, without referencing Kant. In fact, it cites the US Supreme Court in US v. Salerno (1987) to claim that because the Due Process Clause ‘lays down [no] … categorical imperative’, the Court has, ‘repeatedly held that the Government’s regulatory interests in community safety can, in appropriate circumstance, outweigh an individual’s liberty interests.’
Is the west divided by a consequentialist – deontological faultline?