Friday, January 28, 2005

A Few Bad Apples, part 5

Or, "There's Room In The Basket For One More, Apparently.". The whimsically surnamed Michael Froomkin provides commentary upon as well as a link to the full text (.PDF) of the 'torture memo' currently insufficiently haunting Attorney General apparent Alberto Gonzales. Mr. Froomkin has been far, far ahead of the media curve on this issue - the post in question is dated June 14, 2004 - and his commentary is a must read.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?


Blogger Management said...

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

* This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

* This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

* Nowhere do the authors say “but this would be wrong”.

* Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

* This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department’s, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they’d let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President’s authority to wage war must be read to avoid this constitutional problem. It’s certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I’ve suggested previously, is that there isn’t actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn’t happen here.

The memo argues (p. 35) 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.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We’re no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

[Update (6/14/04 12:10): In response to a question, I guess I should clarify this: Congress has discretion to choose the tools available to the President. It can rule some practices unlawful, either under its Art I, sec. 8, para. 14 authority “To make Rules for the Government and Regulation” of the armed forces or under the Art. VI Treaty power. I would argue it can order all troops leave a given country, if only under the power of the purse. But it cannot direct a brigade to go here or there in the field of battle.]

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President’s Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn’t the DOJ prosecute what appears to be a crime? Because the President’s power to protect the nation’s security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President’s powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we’re back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can’t interfere with that.

In short, it’s the same Nixonian argument all over: the DOJ can’t prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that’s not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it’s a little vague on this, and it’s conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations’s not the individual’s right to self-defense (and even in a footnote argues that there’s a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

8:49 PM  
Blogger Management said...

Memorandrom for ATbuto R Gomales
Counsel to the gresldemt

Carter, 530 US. at 2.68 (citing I W. Wave & k Scoit, Substantive Crimiaa Law 8 35,
at 315 (t986))-
As a thcadcal mattct, thmforc, knowkdgt alonc that a particnlu redl is
certa5n to acctxr does not constitute 3pccitic in= As the Saprcmt Court crp- in
drecontzxtofmmda,~..-cofnrwnlwrrofhomicidedisrimp;ni~ .-.bctweena
. - dif5aendy, the law lawguishes isbes taka ' ~ ~ *in spite of their dmtcnded but f m
-* Yocw v, Qrdll, 521 US. 793, 80243 (1997). BUS. e~en if the
d c l c a d a n t l a u r w s t h a t s e v a t ~ ~ ~ f m m ~ a c t i ~ ~ i f ~ s a c h h a r m i s n a t
his objective he lacks the rapkite H f i c in- wen thou& tbtjuries
rrepamittedtbin6erhmtkfktnaicirarmSt;maS thatsuch~isyrcsaa
&e cg., W e d Safes v. Gahvin, 272 F3d 659.666 (4th Cir- 2001); United Sfaftz v-
Xmro, -257 F3d 112,118 f?d Cir- 2001); &it& Sues v. W d 207 F.3d 1222,1232
(10th Cu- 2000); H&on v. Unitai mes, 202 F2d 400, 403 (6tb Cu.1953).
Thediarr, whcn a dcficdlant kws that bis actims will produce thc prohibited raalt a
jury will in all EkeHmd cond9de that tho defiadarmt acted *th specific in

B. UScvcre Pain or Suff#ing"

Notodymustthsmcntaiharmbeprohmgedto amnmt to ~ r n d p a i p a n d
safferiag, but* itmpst becsnrstdbyordt hmoncoftheactslkted in tbcstatutc
In th~absenceofacadcbaa~oa the m o s t ~ ~ o f t h e ~ acts W
i r r S a c t i ~ m 2 3 4 0 ( 2 ~ ~ ) - ( D ) i s t b a i C o n ~ ~ ~ t o b t ~ l a k o w r d s ,
o t h c r a e t s ~ t i n c M ~ S C C f i Q O 2 3 4 0 ( 2 ~ s ~ ~ ~ o l l a r o n o t ~ t b s ~
pblbiti~p, See Ltmkmm v. Tanmt Mwcotb M g e n a e & Cum-
Vnir, 507 US. 163.168 (1993) ('ZrpfesnfeSno tmht e5t eachrSiO &Hits."); Numan Singrr,
2A Sutbaiand on Statu@ry Cmsaudion 4 4723 (6th d 2000) Crovprerc a h n of
coddad, the mama of its pa6ormmce and operation, and the penans and dings to
whi* it rtf- are desi5mted, thcrc is an XUUICC that all omissims be
mdemmd as exclusions.?) (footmes omitted). We cmclodt tbat torture within the
m ~ a n i n ~ o f t h r t a t r a c ~ ~ t b t s p c d h c i a t ~ t o ~ ~ ~ ~ e d m m g l l u r m b ~ o of theacts list#l in Saction 2340(2).
,A defkdam must d c a l t y intend to cause
dcfadant to have dtt&m~ It umId bc atgued t4at a defeadaprt nexds to b e
specmcmtent a ~ y t o commit thepredicateactsthat g i ~ e r i s e t o p t o n g + d ~ b a r m ,
Umierthatvk~, sa Iongas the dtf&spedficallylntsndedto, fkrscarnpte, thearm a
victim with imminent dtath, he would havc had sdXdent mens r m for a convicticm.
~ t o ~ v i e w , i t ~ l d k f m r h a n e c e s s a r y f o r a ~ n v i c t i o n t o s h o w ~ t h a t .
the victim i;icatally suff;aed p1ongtd m d hanr~, rather than that the Mendant
intended b came it Wc belime that &is approach is contraryta the mt of the statute
statute ,requires that the M ' t specifically inteod to itrftjct severe mental uaia or
.+kiqg. Because~cst;rtu~~thism~statewithrcrpattothc~onof
severe m d pain, and baa~st it exprssly &hcs scverc mental pain in tcnns of
prolonged mmtal hann, t h a t - m d state must be prrsent with nspect to pmtonged
mcatal ham. To mad the statute othawise woddmd the phrase "rho prolmgd r n d
ham catrsed by or resulting b* out of the definition of "sevac mmtaf pain or
tbat his acrions dl not d t in prolonged m d harm, bc lacks the mcatat sbts
steps mdd show that he bas dadm on the body of know1cdgt concQning tht
result pm'btd that th&tamte, namely plokmged mea&l hiam. Bcofllse the prrscacc
of good faith d d negate tbe s p S c inturt elemcat of tarme, it is a campleta dafiPsc
to such a charge. See, eg., United Stae v. W& 130 F a 739, 746 (6th Cir. 1991);
&ifid Stntes v. Gqerson, 773 F2d 2l6,2t2-t3 (8th Ci. l985),

i n w t r i c h i t ~ c v ~ t h i s ~ o f t b e p h r a s c . 5keg,CaLPdCode
~3500(c)(westSupp-200(1)("Psjrtbotrapichgs~indudtmio0-~. ..'Imp.
. . ."); Mirm Stat. Arm 5 2M]B201@) mest Sqp 2002) ("chemical dependency
treatmentrn define as program designed to gicdpF(c] the risk of the use of alcohol, -drugs
or other mind-altaing subrtan&")- d

a whole" to asxmb a statute's meaning)- Ea& tomoasent - of& dcdrrition
--is nctthe rnczciilaictionofpain arsulkhgan awtha.bntisbstteadastep
4 removed. The victim must eqmcnce intaut mh or suffering of tht kiud that is
ttlar - ~uivalart?~ tbepainthatwouldbe auociatedwithserioas . - SO semrc
dcata,- kiurt, or pcnaantnt ctamqp resulting -cant bodP fimcrion
el1 likcly dt. If that pain or sa&ring iSpJycho1ugicd, thart snffering ilrpst result

S. Treaty Doc, No, 100-20, at 4-5. F a an the hazy's rapknent of "scvcrity,"
. . - cod@ed, Tbe extreme nature of tartarc is finthtr
e m p m in [rhfs] reqninmcPtn S. Treaty Doc- No. 100-20, at 3 (1988); S- Exec. Rep,
10130, at 13 (1990). The b g a u arlmmistratioa also dennniacd that CATS defUFEitiaa
ofbwtmcfi~lm lincwi0h"uni~cd~tatcs andintmatidusage, [t~baeitl isamally
reserved hr cxtmnc d e h i and rmusaaEly cruel mces, far example, slzstaintd
m a t i c beatins, qpli40n of d d c cmicmts to scasjtive parts 6f the body and
tying up or hanging in p&tians that cause extmme pain.'' S. Rep. No. 101-30, at

( C
Sum- -

28 US.C 1350 note 5 3@). Tbis definition diffcfs fipm Section 2340's de- io
twa- F~r~t,theTVP~dttiniti~m~~~&~aa-anstrttivetist~fpzurposesfbr
whichsuchpainrnayhiwebceaidlicttd Seeid, Secandthe'IVPA~rhcphrase
n a d s i n g a n l y ~ m m ~ t ~ m i n c i ~ t o ~ s ~ n ; b y ~ n t r a s t , ~ &
2340rdasonlyt0painor~'cin&ddto~sancti~~ Td BCGUSG~~~
purpose of our d y s h bere is to asexbin acts that koald emds the Uxc&oId of
pmd\ac;ing "severt physical ar menad pain or -" the list of inusfsztivf pmpascs
far *mhich k is inflicted, g d y wadd not affect this analysis.'Z S k d d y , to the crtd
dcct the question of whether gain or suffeting was pazt of l a w 4- and thus ngt
tartmr;- the ckmnsbuces with whit& vc am amasqai bac are solciy tbat of
~ ~ n q not tht imnnsftion of plBLkbma lsU?SaqPent to judgment lbca
diff~[ttl~t~ bctweeo the TVPAand Sdm 2340 are thd01t not sufficiently signidcant
to mdenninc the us&lnus of TVPA cases h c ~ e ' ~

Vu&c repeatedly beat Kemd Mehiaovc with a Yariety of blunt objects and
including Mehinovicss gdtals. Id ;b.t 1333-34 On m e o d o n s be was tied ap and
hung against windows during kaiu&r hi. Mehinovic, was subjected to the game of
YRussian m&tW S& id Vuckwic, dong udb other guards, also farced Mchinovic to
nm in a circle =lilt the guds swpag woodcn planks at him. Id
Lilct Mehinovic, Muhamcd Bicic v ~ a r bcatm npwsdfy with blunt objects, to the
point of loss of a~~cioosness, See Id 1335. Re witnessed the scvcrc heahgs of &a
pri- in&dmg his awn brother. "On onc occasion, Vwkavic ondered BkSc to get on
all fhm wMe amofhex saldia stbod or Iode on his back and beat hkn with a batgame
the soldiers called 'horse'" Id Bicic, & Mehiwvic, was s u b j e d to the pnc
of Russian ddtc ~dditionally, Vuckovic aad thc other gmds forcibly cxtrattcd a
numbcr ofBicic's teeth Id at 1336-
Safkt HadziAijqgie was subjected to daily beatings with %,d pipes, bats, sticks,
and weapons" Id at 13374e was also snbjedcd to Rrrssiw rouIerte See id at 13S37.

Has;m Subasic was brutally beaten and wim& the be8tiags of otba prisonen,
including the beating and death of one of bis Maw prismmi and rbt bating of
. Hadzidijagic in wfrich hc was tied upside dawn and beaten. See id- at 133S39. Id at
1338- Subasic also ~as~subjected @ the tettb pubg inddcnt, Vuckovic personally beat
SuMc two times, punching him and kicking him withhis miIitay boo= In me csftbese
bahgs, "Subaslc had beem fbrced into a beeling position when Vuchvic lcidtcd him in
the stomach." Id. - -
The distlict mtxt concluded
torture ac the hands of ~uckovic-"
outlmcd with rcspect ta each plaint. the acts in which Vur]u,vic had been at Icomplicit
d that it fad rose to tbe l e d of tcwxe Rtgarding Mehkvk., tbc coart
daetmined Gist Vudcovic's beatings of Mebiaovi~ ifl which he LidEd aad de&md
other blows to M ~ o v i c ' s face, gcnkak, and others body parts, constituted tartme. 'Iht
corn noted chat these beatings left Mehimvic disfigured, may have broken nibs, ahnost
cased Mchbtovic to lose c o D S C i o m ~ aad r d c d him d l e b eat fba a period of
time. As to Bicic, the corn farmd- that Bieic had sdked scvae physical pain and
d e r i n g as a result of Vuckovic's repeated htatings of fiin in which V d m k used
various b e a b to inflict blows, the "horse" game, and the @kg ind- Site
id at 1346. In hding that Vuckcwic Micted sevcrr: physical pain an -agic, the
corn mmqnishgly focused on the beating in wkkh Vuckovit tied Hadzial.ija& npdde
down-and beat him. See id, The court pointed out that in this S a l t , Vdoviic atmad
killed Hhdzialijagic See id The court finther c ~ ~ ~ l u d a l -that !Mx&c e x p a i d m
physical pain and &us was 6wnned basal an &e beatbig m which Vuckovic kkkd
Subasic in the stanach. Siz id

(1) Wall S-5 The pshxx~ stauds sprwd eagle against thc wail, with fingers
high above Iris head, and fkt back so tbat he is standing an his toos such that bis
in of his weight fatIs on his fingers.
(2) Hooding- A black or nny boad is placed over the prisoner's head and kept
thst except during the iatarogation.
(3) Subjection to Noise. Pusding inttm,gation, the prisoner is kcpt in a lrwm with
a loud and oonrinuous hissing noise.
(4) Slaep &!pliMtioxk. Prisonas are deprived of sleep peading interrogdo~~ C
(5) Deprivation of F d and Drink. prisoners receive a mind diet dnring
d d o n ;arad persdiag iotmgazio~ I '

3%. Israeli soplzme Court
m c thc kmdi Supoanc Camt conctudcd that lhese acts amomtai IO mcl. and
i n b m a u ~ c n t , t h e ~ d i d n o t ~ y W t b a t ~ Tobe
smq such a COIlCIusim was mmassay because even if the acts vlaMmted only to crud
aud~trcalmcnttbGSSfackcdamthon'tytousethefivcmctbds. Nonetfidcss,
l l c court's descriptions of and amdusicm~ abut & method indicate that the cow
rCyb the thrtshold of'- Whik its kcziptiom disam ll#:cdyZ diguity,
~ ~ ~ a m d p ~ t h t ~ a m t ~ d d c d d e ~ c a ' b i n ~ s a y n f ~ ~ asbauing
the #vcsitp of-* or saffaip% indicative of tDt.tutt, SBt id at w24-29. hdccd, in
a s s t s s i n g t h c ~ a s a w h a l e , & e ~ m & r c l i c d ~ t h e ~ C o m t o f
R r ~ n a n R i ~ s ~ ~ o p ~ r s u p p o r t a n d i t ~ d n a t t v i = C t c f i s a g r r c m ~ 1 t w i t b t h a t
dccisicda cozrckion tbat the d d a a d thcFtin did not constitute tortlat, See id. 1
.- 30,

h sum, both the Eampeau Comt aa Human Rights and the Isradi Suprime Comt
have nxomr;7ea a wide may of acts &at coustitutc duel, inhman, or degrading
treatnm or but & not amount to tortmt, Thus, they appear to p&
under intartati~~~al law, an aggressive mtaptcmtion as m what amounts to t o m
- leaving that label to be applied only wbae aneme CL +%aces adst
V. The Pnsidcnt's Commander-ia-Cbjef Power
E m if an interrogation method arguably were to violate Sean 2340A, tbc
statute would be d n m o n a l if it iinprPaiSSt'bly encroached on the Prrsident's

morning of Septemba 11, 2001. These ~~ werc aimed at aitical govemnent
buildings in the Nation's capital and landmark buildings in its &axial center- These
meats rezch a different xale of destmdivcness than &-a terrorist epkiodq such as the
desimdon of the Munah Buildkg m Okkhma City in 1994- They caused t h o ~ s t i s of
deaths. Air f l c and commmricaIions witbk tk =td Statcs wtrc dsropttd, donal
stock exchanges were shut for scver;al days; and damage the aaack has been
estimated to nm into thd tens of bini~cls of dollars. Moteover, these attacks are part of a
violent campaign against the United States that is believed to irtclade au mmcmssM
attempt to destroy an a i k in 13ccdqr 2001; a suicide bombing attack in Yeznen on
the U3.S Cole in 2000; the bambings of thc Uaited States Embassies m Kenya arrd m
Tarzania in 1998; a truck bomb attadc on a US. mr'fitary housing complex in Saudi
Arabia in 1996; an umccssfnl attarrpt to destroy the Wdd Trade Center in 199% and .
the ambush of US- sexvicemen in Somalia in 1993. The United States and its ovaseas
pasoand and imtahtims have bcth attachd as a rcmk of Usma Bin Laden's call fbr a
In nqonsc, the Gov- has =gaged m a broad &kt at home and abroad ta
counter t d s m . pursuaOt to his authities as C--ip.chief; the Pnsidmt in
October, 2001, ordkred the Armed Forces to ;btadc a1 Qaeda pummel and assets in
Afghanistan, d the T&ian militia that harbored them. That military campaign appezs
to be nearing its dme with the retreat of d Qada a d Taliban fom dnm their
sfm&olds and tbe hstdhtion of a Gedy pmvizioaal govermpmt m A&b&aa
Congress has provided its sappaa for the use of forces against those linked to the
September 11 attacks, and bas recognkd the Pnsidart's constitutional power to use
foxe to prevent and deter f&m attacks both within and oaside the United Sbtes, S. 3-
R- 23, Pub. L NO. 107-40, 115 Stat. 224 (2001)- ]

B. Iattrpretatim to Avoid Constttadond Problems

the m8ract of opexations dnring a war. Seq ag., Memomdm for Daniel J- Bryant,
Assistant Aft- Genaai, mct of Legisla* Afb& &Jar Patlick F. Ptrilb* - Assistant Attorney General, M c c of Lq# Coimd, Re-- Sd$ Justice A&-on Au
(Apr. 8,2002); M- for T k L y E Ranima Deputy Counsel to the W - d w
Acudk&, we would constme Seetian 2340A O amid this constitntid difficulty,
and w~Eode that it does nut ~ I Y to fhc PtxzSdent'1 dctrntiaa and -gation of
csemy ~ambztants pursuant to his Cammaader-inae-
This appmach b corskknt with '@ow decisions of our Ofice involving thc
applidm of Mad crimiaai law. For exampk, we have previously amstrucd the
cangressianaf mntcmpt stahrte not to apply to ex&e brancfi officials wbo rehe to
camply with m o n a l - buause of an assertion of excnrtive privilege- In a
publiskd 1984 opinion, we fiemdudtd that

it must be ;pdmittEb as a netessay conscqucnc~~, that there can be w
limitation of that admity* which is to cfividc for the M i and
pr4m of &S -ty, i~ m;rtter to its effica~y

One of the carr functions of tht Co-& in ad is that of cap-
-- a
4 J
It 2s wdl d e d &at the Phsikt may seize ;rbd dr?tain enemy

In the foreg@ipzds of this m@mormkm, we bviz dunonstrated that the baa on
torture in W o a 2340A is Wted to onfy the most cxtrcmt htms of physicat and
m d harm. Wc have alto deznoosaafed thar Section 23404 as appEtd to
inrcrrogatians of enemy cornbmts ordtrcd by the President pursuant to his
Cammandez-in-chiefpower would be ~ 1 1 ~ t u t i o l l a . Even if an interrogatiaq metid
h~wwcr, might arguably aass the line dxawn in Sccticm 2340, and application of the
stdhdt was not held to be an -aal Mbganeat of the P d d s
danth - we believe^^^
j U d o t l defe~sr, mi@% available &at -te aimkd

*necessity ddknse_may pmvc espuidly rtfcvant in the cmrmt tkmmaes
it bas bem dtscn'bed in the case law and lit- the purpose behind necessity is
dne of public policy. Accarding to LaFave and Scott, ''the law oaght to promote the
;ochicpanmt of bi@q values at thc ~xparrt of lessa yaiues, and swm~mts the greater
gbod fir society will be accamplishe!d by violating the Ekral language of the criminal
law." LaFzwe & Scots at 629. h pxtjcufar, the necessity defmse can justLfy the
i n t a t i d killing of one pasan to save two others bec;uw Yt is bdter that two iives be
saved and one lost than that two be lost a d one savcd" Id Or, put in the language ofa
choice ~f evils, "the cvil imroLved in viobting the tanis of* aiminal law (, , . eoea
taking motha's life) may be 1 5 than that which would d t h n lhxai courpwiththelaw(,,.
two~veslost)." Id

E. .m
c h h a l - e m;lde a determination of 4 ~ " liC at 629. Tbas, if Congress
cxplidtly has made clear tbm M'alation of a statute cannot be outweighed by the hann
avoided, coaHs carmot ~tcopizc the aEcessity ddcast. LaFave and Lsratl provide-as an
exam@lc an abortion sbtute made dear that abortions awn to save thc life of thc
~ w a u f d s t i l l b e a ~ t ; i n s a c h c a + e s i h e n e c t s s i ~ d e ~ w o n t d b e r m a ~ k
12. at 630. Hae, howcver, Cunps bas not qLicitlymade a determidon of vabs
* 8 , v i r ~ I n ~ C a n g r c s s e 3 9 , ~ ~ ~ o v t d d o r t s t o ~ o v t t o m a ~ ~
weighing ofvalues permitted by the necessity d&knseZf

Please let us know if we can be of fbther assktmcc.

a Plaintiffaras beaten id b t by government tmops while protesting the
dcsmdon of herpropaty. See W " i v. Byd Dur& PexmIem, 2002 WL
3 19887 at '7 (S3S.Y. FA- 28,2002). ,

D c # d a a t w a s ~ e d w i t h ~ ~s~~ aedrrfitatEdlyhitintheheadw-hh
the butt of a gun as he runained trapped in his truck by his attackers- 'Zhe
attackem then doustd the vehicle with gasoline. Although he managed to get out

I)axdat was abducted, alang with fivc ctthas- He and the o m were scPcrdy
beaten and he was fixed to drink diesel oil He was thes snmmady exaxzed.
Taciiiano v. Mqpbe, No. 00 Cip. 6646vEAJCF, 202 2 1424598 at +4
(SDJ4.Y. July 1,ZOM).

8:55 PM  
Blogger Management said...

Also see:

a. Michael's response to Prof. John Yoo's op-ed in the Los Angeles Times here. As Michael says, "...As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as ^Hnon-persons enemy combatants, his comments deserve careful attention..." Read his response in full.

b. Michael's earlier post citing other work responding to the Bush administration's earlier torture memos. As he says:

One of the weirder parts of the Torture Memo, which I didn’t write about earlier, was the attempt to suggest that a torturer might be able to benefit from what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest, judge, I didn’t think it was torture.’ The memo tries this on in two implausible ways: (1) The guy doing the damage honestly believes it’s legal; (2) the guy doing the damage isn’t sure it’s really going to be that damaging. Both arguments seem completely inapplicable to the circumstances, neither is convincing, and the legal analysis is muddled. But don’t take my word for it, it’s not my field. Instead, have a look at these three posts by experts.

Update (6/11/04): Also don’t miss Eric Muller’s excellent comment, Manipulating Doctrine.

8:59 PM  

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