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“Just looking for loopholes…”

…is what W. C. Fields supposedly said when someone found him leafing through the Bible. Apparently some lawyers in the Obama administration are following Fields’s lead, and may succeed in returning to the kind of loophole lawyering of the Bush administration’s “torture memos,” in order to fend off constraints on prisoner abuse abroad.

In today’s New York Times, Charlie Savage reports that the Obama administration is debating whether to circle back to a Bush administration interpretation of the Convention Against Torture’s ban on cruel, inhuman, and degrading treatment (CIDT) that doesn’t rise to the level of torture. The relevant treaty language is this (article 16 of CAT):

“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.”

The Bush administration understood this to mean that there are no obligations to prevent CIDT outside the territorial jurisdiction of the United States — in particular, in U.S. interrogation facilities abroad. Congress closed that loophole in 2005, and so did President Obama in Executive Order 13491, issued in his first days in office. The executive order requires that prisoners must be treated humanely and not subjected to cruel treatment, torture, or outrages on personal dignity, including humiliating and degrading treatment — and it applies everywhere, provided the prisoner is in the custody or effective control of the United States or its agents. Savage reports that some lawyers within the intelligence and military communities favor interpreting the CAT prohibition on cruelty in the Bush manner, as applying only within U.S. territorial jurisdiction. (Lest this seem obvious: Congress has extended U.S. jurisdiction to cover U.S. military bases and other U.S. “entities” in foreign states, which seems clearly to include interrogation facilities.)

So the current debate is about whether U.S. treaty interpretation should walk back from one of the signature Obama achievements: the end of torture and cruelty in our treatment of prisoners abroad. Savage reports that the State Department wants to maintain the global CIDT ban. Readers may recall that last March, a 90-page memo written in 2010 by then-State Department Legal Adviser Harold H. Koh was leaked, which argued strongly that U.S. obligations under CAT apply anywhere the U.S. has “effective control” — a broad reading of “jurisdiction” that includes occupied territory and U.S.-run facilities abroad. The memo apparently never gained sufficient traction to prevail, but at least some of it seems to be the position of the State Department today. But apparently the opinion is by no means universally shared. Savage writes:

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts.

This indicates an unrepentant pro-torture (or at least pro-CIDT) contingent within the “military and intelligence” legal communities. The key sentence is the second: “They say they need more time to study whether it would have operational impacts.” What “operational impacts” are they talking about? [UPDATE: In response to what follows, Charlie has clarified on twitter. See the end of this post for his update and my further reflections.]

The geographically broad CIDT ban would have operational impacts only if the military and intelligence communities want to reserve the option of abusing prisoners abroad. And the implication is that they are worried about being legally constrained, and want their desired result (permission to engage in cruel, inhuman, or degrading treatment abroad) to dictate the legal interpretation. In other words: more result-oriented, if-we-want-to-do-it-let’s-twist-the-law-to-let-us-do-it lawyer games. Just looking for loopholes….

Of course, CIDT would violate the President’s executive order, so a further implication is that the (unnamed) military and intelligence lawyers are unabashedly looking toward a new day when some future president would lift the ban. The extraordinary thing is Savage’s report that the position has any traction at all in the administration.

What makes it all more puzzling is that the ban on CIDT is not a product solely of the Obama executive order. Congress wrote it into law in 2005 in the Detainee Treatment Act:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

Not only does the DTA prohibit CIDT by the United States everywhere on the planet, it prohibits loophole lawyering to evade the ban. Its second clause is, almost in so many words, an anti-loopholing prohibition. So, regardless of how CAT’s CIDT prohibition is interpreted, prisoner abuse remains prohibited by U.S. law.

Here’s the puzzle: if U.S. domestic law clearly prohibits CIDT anywhere in the world, how could geographical interpretation of CAT’s prohibition “have operational impacts” on the United States?

What follows is a dark speculation: perhaps the “military and intelligence lawyers” think they can loophole the DTA, notwithstanding its anti-loopholing prohibition. That is because the Bush administration loopholed the CIDT ban in three different ways, and narrowing the geographical scope of the ban was only one of them.

The second loopholes the very definition of CIDT. When the Senate ratified CAT, it attached a reservation defining “cruel, inhuman, and degrading” treatment to be the cruel treatment prohibited by the Fifth, Eighth, and Fourteenth Amendments. The Eighth Amendment pertains to punishment, not interrogation, and it is not the main issue. The pertinent point is the Due Process Clause of the Fifth and Fourteenth amendments. The Supreme Court has held that it does not apply abroad. The Bush administration seized on this point to argue that nothing the US does outside the territorial scope of those amendments is cruel, inhuman, or degrading, as the terms are interpreted in U.S. law. (This argument appears in one of the torture memos, pp. 21-25 — although this memo predates the DTA, and was withdrawn by the Obama administration.) And therefore the DTA doesn’t prohibit it, nor does it prohibit loopholing interpretations.

In other words, the wording of the DTA might allow lawyers not only to loophole its CIDT prohibition, but also to loophole its prohibition on loopholing. They would do this by an argument that no prisoner abuse short of torture can be cruel, inhuman, or degrading if it is done abroad. Therefore the anti-loopholing clause doesn’t apply.

In real-world terms, this is crazy stuff: whether conduct is cruel, inhuman, or degrading does not depend on where it’s committed. The argument’s trick is to focus on the jurisdictional reach of the Fifth Amendment, rather than its substantive standard. When Alberto Gonzales floated the argument during his confirmation hearings for attorney general, Abe Sofaer, the State Department Legal Adviser when CAT was ratified, wrote to Senator Patrick Leahy that this was not at all the point of the Senate reservation. The point was to guarantee that the same substantive standard would govern CIDT both in and outside the United States — not to create a geographical double standard.

That still leaves a third method loopholing the DTA. A practice violates the Fifth Amendment if it “shocks the conscience,” and Bush administration lawyers interpreted some Supreme Court dicta as establishing a “sliding scale” whereby the more important the government purpose, the less the activity shocks the conscience. Then-OLC head Steven Bradbury used this argument in his CIDT memo (pp. 27-30). The interpretation of the Court’s cases is wrong, as my colleague David Cole has shown (pp.  459-61). But the problem is more basic. As I’ve written in my book Torture, Power, and Law (pp. 122-23), under this argument, whether prisoner abuse is cruel, inhuman or degrading depends not the abuse, but on the motive of the interrogator. That’s like arguing that a justified killing is not a killing. Just like the argument that cruelty and degradation abroad are not cruel or degrading, the argument that cruelty and degradation for a good purpose are not cruel or degrading wires untruthfulness into the very meaning of words.

It’s important to understand that the Obama executive order withdrew all these memos and repudiated their elaborate sophisms. But without resurrecting their arguments, it is hard to see how the military and intelligence lawyers Savage reports about could get around the domestic law against CIDT — both the Obama executive order and the Detainee Treatment Act. Only if they think they can get around this law would the interpretation of CAT’s ban on CIDT have any conceivable operational impact.

It’s alarming, but not entirely surprising, that there are lawyers in the military and intelligence communities who would like to roll back the legal bans on abusive interrogations abroad. What is more surprising is that they have enough confidence and temerity to take on the President’s own strongly-maintained policy so directly; and what’s more alarming is the possibility that his administration might cave.

UPDATE, Monday Oct. 20: In response to this post, Charlie Savage has tweeted: “Re CAT: doubt operational impacts=interrogations bc DTA/EO. Other treaties w/ similar applicability? Confinement conditions?” It is relieving to know that the “operational impacts” Charlie’s sources were referring to probably don’t pertain to interrogation. It would be more relieving if the sources had said explicitly what they were talking about. His two speculative questions about what those operational impacts are raise puzzles of their own. If the worry is about the implications of a broad reading of the “territory under its jurisdiction” clause for a panoply of other treaties, why would the State Department be on the opposite side from the military and intelligence communities? Presumably, only if the other treaties specifically pertain to military or intelligence activities. It would be useful to know which those are. The most obvious candidate is the International Covenant on Civil and Political Rights (ICCPR). A quick glance through the rights it enumerates reveals a couple that might be potential sore spots: the article 10 right of persons in custody to “be treated with humanity and with respect for the inherent dignity of the human person,” which might be thought too vague; and the articles 14 and 15 fair-trial rights, which might be thought to impose standards that the Guantanamo military commissions could be accused of not meeting, although obviously the U.S. government would disagree. Charlie’s query about conditions of confinement might also raise questions about Guantanamo, in particular force feeding of inmates, which many believe is cruel, inhuman, or degrading. The trouble with this speculation is that Guantanamo is territory under U.S. jurisdiction, so article 16 of CAT applies to it no matter how broadly its geographical scope is interpreted. Or is the worry about potential detention of enemies elsewhere, who might hunger-strike and be force-fed? This too would be puzzling. As I pointed out in the main post, the U.S. has interpreted “cruel, inhuman, or degrading” to incorporate the substantive standards of constitutional protections in U.S. domestic law. U.S. domestic law permits force-feeding of prisoners to save their lives, so — once again — the geographical scope of CAT’s prohibition on CIDT would not have operational impact.

In short: if Charlie is right, my “dark speculation” about interrogation can thankfully be rejected. But the questions raised by his story are themselves puzzling enough that — pending some further illumination — I don’t see many alternative explanations that aren’t troubling in their own right.


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About the Author

is University Professor in Law and Philosophy at Georgetown.