Reading the Memos, part 2

The local blogger Illusory Tenant didn't like my choice of language in beginning a series of posts of the DOJ interrogation methods. I chose it carefully and I think it accurately reflects the way in which most of the public discussion has proceeded.

So what about the memos? First, some context. In Sunday's New York Times, Frank Rich claims that, in a 2002 memo, then DOJ lawyer Jay Bybee "proposed" a series of interrogation methods. He did no such thing.

Rather, Bybee was asked to opine as to whether certain methods that were described to him would violate 18 U.S.C. section 2340A which prohibits persons outside of the United States from committing or attempting to commit torture. Section 2340 defines torture as conduct specifically intended to inflict "severe physical or mental pain or suffering" on persons in custody. He was not asked whether such methods are "effective" or whether they were appropriate as a matter of policy or morality.

Some critics of the DOJ interrogation memos have been put off by what they see as their "clinical dispassion" or "lawyerly detachment" in the course of discussing rather unpleasant subject matter. One should, they say, "know torture when they see it" without reference to the language of the law.

That may be true as a moral matter and I'll get to that. But we enact laws for a reason and the statute in question prohibited only some impositions of physical or mental pain and suffering. It did not rule out all coercive or stress-inducing interrogation techniques. It is hard to know, then, how else would would go about evaluating whether proposed practices fall within the specific statutory language than by deciding what the language means and comparing it to the facts.

But others - defenders of the Bush admonistration - argue that the memos can be defended by showing that the methods used obtained results. Whether one can defend torture on consequentialist grounds is an important moral question, but it is really irrelevant to the legal question that was before DOJ. Whether the methods "work" or not is not part of the legal definition of torture.

The Bybee memo does not distinguish severe physical pain from severe physical suffering. It declined to treat "pain" as a concept distinct from "suffering." A latter 2005 memorandum seems to have departed from that approach, noting that the statute is worded in the disjunctive. On that view, it is possible for an act to inflict severe physical suffering even if it does not inflict severe pain. The latter memo concluded, however, that for physical suffering that does not rise to the level of severe pain, it must be enduring and not merely transitory. The latter memo concluded that the two concepts are related, however, in that conduct that inflicted a greater level of pain (even if not severe) would not have to last as long as conduct that did not to be considered severe physical suffering within the meaning of the statute.

This means that any infliction of severe physical pain - even of very short duration - would constitute torture. But conduct that did not inflict severe physical pain might also constitute torture if it inflicted enough physical suffering for a long enough period of time.

The memos also distinguish physical from mental pain and suffering. Physical pain and suffering is, they argue, distinct from mental pain and suffering and the latter cannot constitute the former. This is important because the statute provides a specific definition of mental pain and suffering which, according to the memos, required specific predicate acts and prolonged mental harm. The two predicate acts that are most pertinent to the techniques at issue are the "threat of imminent death" and the "infliction or threatened infliction of severe physical pain or suffering."

It seems to me that the view adopted by the 2005 memorandum is a fairly straightforward bit of statutory construction. Yes, it's uncomfortable to make the distinctions that it makes but that is what the statute calls for. While I might have argued that the concepts of mental and physical pain and suffering cannot be so readily distinguished, i.e., there could be conduct that inflicts some level of physical pain and suffering that is not itself enough to qualify as torture but that, in combination with the mental pain and suffering that it produces is enough to cross the threshold but I am not certain that this distinction would have materially affected the analysis of the particular interrogation methods at issue.

The memo also noted that there was a "specific intent" requirement, i.e., that the persons engaging in this conduct have to intend to cause the requisite pain and suffering. Although the memos focussed on this, noting that the authors had been informed that the interrogators did not believe that their methods would cause such harm, I don't find that part of the memos very helpful. They were advice to the government on what to do and not to do and I don't think, if something actually does inflict the requisite harm, that the government gets off the hook for keeping interrogators in the dark.

But so far, I think we have at least workmanlike effort to state the law. But what about application of the law to the particular methods under contemplation?