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How We Know that the OLC Torture Memos were Not Issued in "Good Faith"

By Jack M. Balkin

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.

The response I received to the previous post exposing the empty circularity of the analysis in these memos suggests that a clarification of the core point would be useful. It is essential, first off, to distinguish the factual components of the inquiry from the legal components of the inquiry, and to see how they were treated by OLC lawyers.

The CIA asked the OLC to render an opinion on the legality of a set of interrogation practices (sleep deprivation, waterboarding, stress positions, etc.). This inquiry was presented (at least on the surface) as a request for the OLC?s independent legal assessment of whether the practices violate the anti-torture statute.

This inquiry had two aspects:

1) the interrogation practices, with stated limitations (and the CIA?s assurance that interrogators kept to the limits); and

2) whether these interrogation practices violate the anti-torture statute.

When issuing the legal opinion, at bottom, the OLC had to determine whether the interrogation practices ?intentionally inflict severe physical or mental suffering??the standard in the anti-torture statute.

There is a legal and a factual component to the OLC inquiry. The legal component requires specifying what "severe suffering" means for the purposes of the torture statute. [Most of the criticism of the torture memos focuses on this legal aspect?objecting that Yoo and Bybee ratcheted the standard up to an absurdly high level (suffering equivalent to organ failure or death); this legal position was subsequently withdrawn by the OLC as faulty.]

The factual component is just as important as the legal part. To render an opinion on the legality of the interrogation practices, the OLC must evaluate the consequences of those practices against the legal standard. To engage in this evaluation, the OLC must first determine the extent of suffering inflicted by the interrogation practices.

Now query: Can the OLC rely entirely on the CIA?s own assurances about the extent of suffering inflicted by these practices?

No way. Not in good faith. Two reasons stand out:

First and foremost, the CIA wanted to apply these interrogation practices and had already used these practices, so it had powerful reasons to understate the actual suffering caused by these practices. An admission by the CIA that the practices inflict ?severe suffering? would be tantamount to an admission of criminal conduct. For this reason, no OLC lawyer conducting an independent legal analysis, even if sympathetic to the aims of the CIA, could rest exclusively upon the claims of the CIA about the extent of suffering inflicted by the practices.

Second, it was evident at the time that the interrogation practices might well constitute torture?after all, waterboarding has been counted as ?torture? for centuries. Everyone understood that the CIA?s worry about criminal prosecution is what prompted the inquiry. It was obvious at the time that a legal opinion from the OLC concluding that the interrogation practices were ?not illegal? would provide a strong defense for the interrogators, and would allow such interrogations to continue. Ultimately, as all parties knew, at stake was the momentous question of whether U.S. intelligence agents would engage in illegal conduct with assistance from the Department of Justice. For these reasons, an OLC lawyer engaging in independent legal analysis would make damn sure he had a solid factual basis for knowing how much suffering these interrogation practices inflicted.

Now it is plain to see why the legal memos manifestly engage in bad faith analysis.

The memos explicitly acknowledge that ?there is no evidence? at all about the combined effects of these interrogation techniques. The OLC lawyers admit: ?We don?t have any body of experience, beyond the CIA?s own experience with detainees, on which to base an answer to this question.? (March 10 memo). Following this admission, the only appropriate finding is that the OLC lacked a sufficient basis on which to sanction the legality of the interrogation practices. Nonetheless, the OLC went ahead and issued an official legal opinion that ?we do not believe that the use of the techniques in combination as you have described them would be expected to inflict ?severe physical or mental pain or suffering? within the meaning of the [anti-torture] statute.?

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 the 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.]

Full post as published by Balkinization on April 22, 2009 (boomark / email).