Blinded by Legalese

Arguably the biggest news story of the week was the release by the Obama Administration of four Justice Department memos from 2002 and 2005 that were used to justify CIA torture of detainees. An analysis by Jeffrey Smith in today's Washington Post tries to explain the context and the mindset that led to the twisted logic found in these memos:

The four Justice Department memos to the CIA's top lawyer that were released last week reflect an effort by Bush administration appointees to create finely tuned justifications for harsh interrogation techniques, all under a blanket of secrecy covering the agency's prisons and the questioning.

In the wake of the memos' disclosure, it is clear that the lawyers and the CIA got it wrong in measuring the methods against their selected legal test: that they must not "shock the conscience." The brutality of the interrogation measures -- including repeatedly slamming people into walls, simulating their drowning and stuffing them into dark, constricting boxes -- shocked the conscience of at least some.


To endorse the CIA's interrogation plans, the experts in the Justice Department's Office of Legal Counsel had to parse highly specific terminology in a collection of relatively recent U.S. anti-torture statutes, international laws and treaties, with few directly applicable judicial rulings to serve as guideposts. They also had to weigh contemporary politics, since the "shock the conscience" test was a target they knew would move.

The solution chosen was to slice the apple thin and eat only a portion. Interrogators could shackle detainees to floors or ceilings to keep them awake for more than seven days, but they had to allow a normal period of sleep before starting again. They could pack them into tight, dark containers for more than eight hours at a time but had to allow a total of six hours outside the box every day.

The fact is that these lawyers just plainly got carried away by the legalese and drifted further and further from reality:

Louis Michael Seidman, a constitutional law professor at Georgetown University, said the memos' authors fell into a familiar trap: They looked so hard for legal authority that they paid too little heed to sound intuition. Sometimes, he said, "the law promotes rather than stands in the way of morally reprehensible behavior."

"People who get too caught up in technical legal analysis sometimes lose sight of their moral compass," Seidman said. Anyone who got away from the law and thought deeply about the fact that the CIA's methods were being practiced on human beings "would come away with very different conclusions."

Thinking back to that era, I'm hardly surprised that this was the case. In fact, one particularly relevant memory comes to mind.

In September 2005, I was part of a small group of mostly American students who were invited to an event at the Pentagon as part of a series of activities we were participating in before heading overseas for graduate school. The pentagon event was disturbing for a variety of reasons, but one of my most vivid recollections involves a talk by Matthew Waxman, who at the time was the Deputy Assistant Secretary of Defense for Detainee Affairs.

Waxman has actually been lionized to an extent as a voice of reason within the Bush Administration, particularly for fighting an uphill battle to try to include language from the Geneva Convention in the Pentagon's detainee policy. This caused quite a bit of friction, and Waxman moved from the Pentagon to the State Department in late 2005. He has been an Associate Professor at Columbia Law School since 2007, and, among other things, has argued in favor of closing Guantanamo Bay.

However, that's not the Waxman I witnessed in September 2005. Before I say anything else, I need to stress that Waxman's position had no jurisdiction over the CIA and he nothing to do with the torture memos; his role was in formulating detainee policy more broadly. However, the general confusion, recklessness, and legal self-justification that emerged from his talk that day seems to meld well with the general atmosphere in the Bush Administration at the time that helped produce the CIA torture memos.

Waxman spoke to us surprisingly openly about the Administration's detainee policy. He was clearly a lawyer, and he kept his talk strictly to legal issues, not once considering the broader human rights or even political implications of his work. The gist of what he told us was something along the lines of: we have very little precedent to work with, so we're formulating our detainee policy as we go, and we are trying to determine--legally--the extent of what we can get away with.

It was surprising to hear this, partly because the Bush Administration had gone through great lengths to present a public face that was incredibly resolute, unwavering, and sure of itself. Here, however, we had a high-level Administration operative who basically said that they didn't necessarily know what they were doing, but that they were trying to figure it out. But, more fundamentally, I was profoundly disturbed by the total lack of any considerations other than explicit legal ones in Waxman's work. The question he was grappling with was not what should the Pentagon do, but what could it get away with.

Waxman may have been on the right side of some of his confrontations with other Administration officials, but from his talk it appears that in his work in general he was guilty of the same sort of narrow-minded on-the-fly legal wrangling that led to the production of the torture memos. Waxman's work may not have directly led to torture, but it did help perpetuate a legal framework that greatly reduced America's moral authority.

What saved Waxman, though, was that his legal interpretations were apparently more savvy and realistic than those by some others at the Pentagon and at the Justice Department. He believed that international law more broadly restrained American behavior than some others did. Hence, it looks like he has landed more-or-less on the right side of history, at least legally.

The same cannot be said for the architects of the torture memos. Obama has said that the CIA operatives who carried out these instructions should not be prosecuted. I'm not sure if I totally agree with this statement, as these operatives clearly should not have participated in actions that were obviously morally and ethically wrong. But if there's anything we've learned from the darkest chapters of human history, it's that otherwise normal people can get swept away in horrible atrocities if their superiors create the right conditions. The authors of these memos--and, more poignantly, those they were working for--on the other hand, bear full responsibility for these crimes against humanity, and hopefully they will actually be brought to justice sometime in the future. Only then can we put these regretful events behind us.


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So the authors of the memos should be taken to court, but not the CIA torturers? Then why are we still hunting for the last surviving Nazi camp guards when Hitler's been dead for more than half a century?

IMHO, if I follow an order, then I am still responsible for my actions.

What is so hard to understand about the following? No precedent?

Was this not presented to Congress and signed by President Reagan? In 1988?

UN Convention on Torture


Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.