Systemic Issues with the Torture Memo

The torture memo is being adequately covered in its details all over the net (including by co-bloggers at ObsidianWings. So instead of hashing through all the little reasons why it is wrong, I want to focus on the systemic reasons why it is wrong and why even if it were legally correct (which I do not believe) it tries to set up an unwise positioning of Administrative power.

A major concern of mine is the balance of power between the legislative, administrative and judicial branches. I have written on the topic many times, including here, here and here. While I have typically been concerned with judicial overreach, the memo in question offers a blatant example of executive overreach"

Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Comander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign.

This is wrong, wrong, wrong. Even though Congress does not have the power to dictate tactics for instance, it can outlaw certain general methods. And torture is a method within the power of Congress to outlaw. This is also a highly dangerous Constitutional theory. Though I would not do so, it could be argued that the torture rules are too strict for the current conflict. But if that argument is to be made it must be made in Congress and the legislative bodies must be allowed to decide on it.

As a practical matter we need to remember that people often stretch the rules. That is why it is often necessary to place the rule slightly beyond where compassion would dictate. Let's briefly examine a totally different arena--assisted suicide. There are extreme cases where a patient is in quite a bit of pain, wants to die, has a terminal illness but cannot kill himself. Cases where all four are true are fairly rare but they do exist. Doctor assisted suicide is not allowed in the United States, but it does happen in some of the most extreme cases. Doctors know full well that it isn't legal. Any doctor who routinely or systematically engaged in assisted suicide would be prosecuted. But some doctors push a bit beyond the limits of the law (saying if you took 5 of these instead of 1...) and are not prosecuted so long as they limit themselves to the extreme cases. Essentially they take a risk in the extreme cases, and the risk is that they may hit a prosecutor who will actually go after them even in this extreme instance and that they may hit a jury which would convict them (though probably not). The rule is slightly beyond what compassion would dictate, but since people push slightly pass legalisms the balance ends up about right.

This certainly happens with torture. If we ever did get a real 'ticking bomb' situation torture might very well be used (beyond the limits of the law) and the torturer might very well not get prosecuted or convicted. But this memo sets up something different. Instead leaving it to the outlying cases, it tries to systemically change the nature of the torture-forbidding system by pretending that the right to engage in torture is a Constitutional right inherent to the Administrative Branch. No normal reading of the Constitution allows for that interpretation. And setting the routine torture laws to such a broad expanse insures in reality that the military will go even further in non-routine situations. So the memo is bad both because it attacks the proper Constitutional balance, and because it sets up a situation where routine torture levels would be allowable setting the stage for non-routine situations which would be horrific. (Torturing a terrorist's children in non-routine situations anyone? I certainly hope not.) Maybe that isn't really two things, because a proper legislative/democratic check wouldn't allow things to go that far.

This does make for an interesting note in the Constitutional interpretation battles. For those who don't put much faith in textualism--how do you know that the Constitutional argument put forth in this memo is wrong?

Comments

[sidereal]

Great insight on the balance between rule and overstep, Sebastian. There's a certain pragmatist perspective that on the one hand is counter to the rule of law, but on the other actually applies to the real world.

This executive administration has proven way, way too many times that it perceives separation of powers and checks and balances as a burden to be avoided at every opportunity, something I hope would give principled conservatives long pause for thought.

Bit afield, but I wonder if this outrage combined with McCain's history with torture would cause him to reconsider the vice presidency, in an effort to remove this administration from power (That's analysis, not idle fantasy, I swear!)

[Alex]

A major concern of mine is the balance of power between the legislative, administrative and judicial branches.

Pshaw! You certainly must be aware that the concept of Separation of Powers was first proposed by the Baron de Montesquieu, who was dangerously French. Now that we know that Old Europe is evil and decadent, we must surely discard such silly notions; and just as French Fries gave way to Freedom Fries, so must Separation of Powers give way to Freedom of Powers. Huzzah!

Montesquieu was also dangerously secular (he was one of the first to propose removing the clergy from political power), which obviously proves that legislative limits on executive power makes the Baby Jesus cry.

So the memo is bad both because it attacks the proper Constitutional balance

See above. Constitutional balance is namby-pamby Froggery. Sebastian, why do you hate America?

[Jesurgislac]

Great post, Sebastian. Nice parallel with the "assisted suicide" point.

[Katherine]

Great post. As to the last question:

As I understand it, "textualism" is not so much a statement that you have to start with and abide by the text--a principle almost everyone agrees with--as an idea that certain sources are not legitimate in interpreting the text, and you must stick to the words themselves and dictionary definitions of them and some general canons of construction (e.g., no word is extraneous) rather than historical evidence, purposive readings, etc. Since big parts of the Const. are ambiguous it sometimes leads to hang your answer to those questions on the placement of a comma or logical rules of statutory construction that bear little resemblance to how people actually behave. Or it leads to repeat "free speech means free speech" in a way that is actually not a very good argument. (This is from someone who isn't a textualist, so take that characterization with a grain of salt.)

There are definitely issues where a textualist v. non-textualist approach lead you in different directions. A strict textualist interpretation probably means that the equal protection clause doesn't apply to the federal government, for one thing--though the two most famous textualists I can think of (Scalia and Hugo Black) don't actually take this position. (Scalia might think the key case--Bolling v. Sharpe--was wrong but should be upheld because of stare decisis, but that's something he's made fun of other judges for, so....)

Anyway, I don't think this is one of those questions, though. It's just not a close issue. Unless by "textualism" you mean "arguments using the text of the Constitution," but by that standards most liberals are textualists.

In general, I don't think textualism is that great a safeguard, because textualist judges are
as likely to transgress as many others. Hugo Black wrote Korematsu. Scalia argues that undocumented immigrants should not count as "person"s under the 14th amendment--something I do not belief you could find support for in the dictionary; and that a statement that requires the Court to hearing "actual cases or controversies" places severe restrictions on who can sue--again, not something you're going to find much support for in a dictionary definition or other parts of the Constitutional text.

[JimPortlandOR]

Not to quibble with your analogy of torture with the law on assisted suicide, BUT,

Oregon has twice passed referenda to allow assisted suicide, (and a modest number take advantage of this law each year - 129 total since 1998, ranging from 16 to 38 per year)

"A federal appeals court Wednesday rejected the Bush administration's effort to punish doctors who prescribe lethal medication to terminally ill patients under Oregon's assisted suicide law."

Oregonian

I do agree that regardless of philosophy of judicial interpretation, since the late 1600's (English Bill of Rights), the executive cannot overrule or disregard the law. In this case at least four laws are controlling: (there are others)
- US Torture Act
- US War Crimes Act
- Uniform Code of Military Justice
- Treaty Adherence to the Geneva Conventions

[von]

Well said, Sebastian.

And this in particular:

This does make for an interesting note in the Constitutional interpretation battles. For those who don't put much faith in textualism--how do you know that the Constitutional argument put forth in this memo is wrong?

Indeed. Well said.

[von]

Katherine --

In general, I don't think textualism is that great a safeguard, because textualist judges are as likely to transgress as many others. Hugo Black wrote Korematsu. Scalia argues that undocumented immigrants should not count as "person"s under the 14th amendment--something I do not belief you could find support for in the dictionary; and that a statement that requires the Court to hearing "actual cases or controversies" places severe restrictions on who can sue--again, not something you're going to find much support for in a dictionary definition or other parts of the Constitutional text.

Granted that textualism is not perfect (nothing is), and many of its practicioners even less so. However, IMHO, it's still far preferrable to start with the notion that the words mean what they say according to their ordinary definitions at the time they were written. If there's a particularly strong argument that something other than the literal is meant, then let it be made.

But perhaps that's essentially what you're saying, and we're merely emphasizing different things.

von

[Catsy]

I agree with most of what you've held forth here, Sebastian, but I do need to quibble with one point--and it's probably a sign of the strength of your argument that both my quibble and the other major one in this thread were about your analogy.

There are extreme cases where a patient is in quite a bit of pain, wants to die, has a terminal illness but cannot kill himself. Cases where all four are true are fairly rare but they do exist.

Someone else already pointed out Oregon's law. I would add that "cannot kill himself" should not be a required test for legitimate assisted suicide. If the other three conditions exist, is it not reasonable for someone to seek expert advice on how to painlessly and efficiently terminate their life than to try messy, dangerous, cruel, and often unsure methods like pills or a gun?

[victor falk]

via Mark Kleiman: "And Brad DeLong relays an email correspondent's account of a talk by Sy Hersh at the University of Chicago: "He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, 'You haven't begun to see evil...' then trailed off. He said, "horrible things done to children of women prisoners, as the cameras run.'"

[victor falk]

Sorry about the link

[JimPortlandOR]

Catsy: (just to clarify a minor issue in the argument)

Sabastian said: "There are extreme cases where a patient is in quite a bit of pain, wants to die, has a terminal illness but cannot kill himself."

You've discussed the 'cannot kill himself' portion. In Oregon law, that isn't a condition, nor is the "quite a bit of pain".

In shorthand, the law provides that two MDs must find that the patient is within 6 months of death, competent to decide, and expresses a desire on two occasions for a prescription. There are other procedural safeguards. But only eminent death and a expressed desire for "Death with Dignity" (the title of the law) are necessary.

I might add that each year about twice the number of prescriptions are issued than are actually carried out. The key point is that the patient decides, and they are given the ability to control the process.

[Gary Farber]

If one wants to link to what's on Brad deLong's blog, it's useful to so link.

[Sebastian Holsclaw]

I had forgotten that Oregon had assisted suicide. So I guess my analogy only applies in the rest of the country. But as a description of how people tend to go one step beyond the law I think it still holds true and perhaps even in Oregon, though we would need more research.

[sidereal]

Content-free tag cleanup comment.