The release of the four torture memos this week raises a number of important questions that are nicely set out in yesterday’s New York Times editorial—including whether federal district court judge Jay Bybee should be impeached, whether he and other authors of the torture memos, including John Yoo and Steven Bradbury, should be prosecuted, and whether the “following orders” defense should be extended to interrogators who complied with the Bush administration’s torture memos.
The release of the torture memos also affords an excellent opportunity to revisit a question that was hotly debated here at the Law School in 2004 and that gave rise to an article published in the Michigan Law Review in which Eric Posner and Adrian Vermeule argued for the legalization and regulation of torturous interrogation.
Do the recently released torture memos shed any light on that debate? Should the torture memos make us feel differently about whether the legal regime that surrounds torturous interrogation—what Posner and Vermeule labeled the “OAF” approach (“outlaw and forgive”)—should be replaced by the regime of legalization and legal regulation that Posner and Vermeule proposed—what we might call an “LAR” approach (“legalize and regulate”).
Incidentally, I am using the more precise term “torturous interrogation” to describe what Posner and Vermeule were discussing. In their article, Should Coercive Interrogation Be Legal?, Posner and Vermeule used the term “coercive interrogation” as a term of art. They were referring specifically to the subset of coerced interrogation methods that involve torture. “Our interest,” they explained, “is in the overlapping area of these two concepts: coercive interrogation that (by virtue of its severity) counts as torture. Henceforth, we will use ‘coercive interrogation’ to denote this subset” (p. 673). That was an unfortunate choice of words that muddied the waters (given that, since Miranda, all interrogation that takes place in police custody in a police precinct is presumed to be coercive, which is precisely why a Fifth Amendment right to counsel was created and attaches there). It would have been far more precise to use a third and different term, rather than either “coercive interrogation” or “torture,” to denote that overlapping concept. Accordingly, I will use the term “torturous interrogation” as that more precise term to capture exactly what Posner and Vermeule had in mind.
With that clarification, then, the question that Posner and Vermeule posed in their article was: “Should [Torturous Interrogation] Be Legal?” More precisely, they wrote: “We ask what legal regime should govern [torturous interrogation]? Should it ever be permissible? If so, what legal rules should be used to sort permissible from impermissible cases?” (p. 673).
In response to this question, Posner and Vermeule argued that torturous interrogation “should be made legal, albeit subject to numerous legal protections—… like police shootings, wartime killings, preventive detentions, capital punishment, and other serious harms. The law should treat [torturous interrogation] the way it typically treats coercive government practices. Such practices are subject to a standard set of regulations defined ex ante: punishment of officials who use these instruments without a good justification, official immunity when they are used in good faith, various restrictions on the type of instrument that may be used, ex ante protections such as warrants, and so forth. Our argument is that [torturous interrogation] should be treated in the same way” (p. 674).
To be exact, Posner and Vermeule endorsed the legalization of torturous interrogation as opposed to a necessity defense approach. They explained that the 'outlaw and forgive' (OAF) approach can come "in two flavors. The first places the responsibility to forgive with political officials such as prosecutors, governors, or presidents. The second places the responsibility with judges or juries" (p. 694). That second approach, which they discussed and rejected under the rubric of "the necessity defense" (p. 697-698), is the traditional approach of an affirmative defense in cases of necessity--what we generally refer to as the "ticking time-bomb case."
Query, then, whether the newly-released torture memos have any bearing on this question. My initial sense is that they do, but not in the direct way that one might expect. The fact of the matter is that these torture memos essentially represent the kind of regulation that we would implement if we took the Posner and Vermeule position. The torture memos are, in effect, a perfect illustration of what ‘the legal regulation of torturous interrogation’ would look like. Let’s be honest, we are dealing with the subset of coerced interrogations that amount to torture and torture is a shocking practice. It’s torture after all. Any description of the methods is going to be shocking to the reader.
These torture memos are, in essence, a virtual set of regulations that we would need in order to implement the Posner and Vermeule regime. Change the rubric of the memos a little bit—rather than permissible forms of non-torturous interrogation methods, the rubric would be moderate forms of torturous interrogation—and you have the legal regulation of torture. These memos essentially set forth what Posner and Vermeule refer to as the “Limits of coercive interrogation: methods” (p. 701).
So, for instance, the memos set forth the rules surrounding permissible waterboarding: “in any 24-hour period, interrogators may use no more than two ‘sessions’ of the waterboard on a subject—with a ‘session’ defined to mean the time that the detainee is strapped to the waterboard—and that no session may last more than two hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed 6. The maximum length of any application of water is 40 seconds… Finally, the total cumulative time of all applications of whatever length in a 24-hour period may not exceed 12 minutes.” (Memo from Steven Bradbury dated May 10, 2005). In addition, the 2002 and 2005 memos provide that waterboarding may only be used with two other techniques, sleep deprivation and dietary manipulation.
This is precisely what it would sound like to regulate torturous interrogation. These techniques are, by definition, the more moderate forms of torturous interrogation. In fact, they were found not to amount to torture at all by the Bush administration. In other words, they are by definition the kinds of acts that would be prescribed by a regulatory framework that legalized but regulated torturous interrogation. This is precisely what the regulation of torturous interrogation methods would look like.
Proponents of the Posner and Vermeule position, I take it, would simply respond that readers of the memos need to be less squeamish: this is what it looks like to engage in torturous interrogation, they might respond. These memos are not really that different than a lethal injection protocol, they would suggest. Since these practices are justified sometimes, they would say, these memos are precisely why we should be regulating the techniques. In fact, they might add, these are precisely the kind of practices that we should be regulating to ensure that they are not misapplied or performed in an improper way. Today’s revelation that the United States used waterboarding 266 times on two Al Qaeda suspects, they might say, makes it even more important to regulate these techniques more closely.
[As an aside, note that the premises of the Posner and Vermeule argument are that torturous interrogation works and that it is justified in exceptional circumstances. In their article, they argue that the position that torturous interrogation does not work “runs aground on the evidence” and that the Israeli evidence “strongly suggests that coercive interrogation saves lives” (p. 684). As a result, they argue that there is no justification for “an absolute ban” (p. 687). For purposes of engaging the Posner and Vermeule argument on its terms, I will suspend all judgment on these two assumptions].
If that is the case—if the memos do not change the equation at all—then we simply return to the debate we had five years ago and on that score, I continue to take the position I held then: Posner and Vermeule’s argument fails. In their article, Posner and Vermeule dispatched with expedience all counter-arguments in very lawyerly fashion deploying a well-worn rhetorical strategy of burden shifting. What they argued, essentially, is that the defenders of the current legal regime—say, the Convention Against Torture—cannot prove that the current regime provides the right amount of deterrence. They cannot prove that OAF provides just the right amount of deterrence. Their rhetorical approach, well-known among lawyers, was to shift the burden of proof on the proponents of the current regime and then to raise their hands and say ‘look, there’s no empirical evidence.’ So they write, for instance, “there is no reason to think that OAF will produce optimal deterrence” (p. 695). Very lawyerly, but not very convincing. The truth is, no one can empirically prove that their legal regime will provide optimal deterrence, and neither can Posner and Vermeule. In fact, Posner and Vermeule do not even try to prove anything empirically given that they too have no proof whatsoever that LAR would do a "better job" of deterring torture.
Barring any evidence, Posner and Vermeule fall back on the lawyer’s second favorite argument: since we just don’t know, let’s simply use the system we use everywhere else. Let’s just legalize and regulate as we do for the police when they use deadly force. The problem here is that that’s not what we do! In the criminal law of assault and homicide, we predominantly use an affirmative defense of necessity—across the board. In criminal law, we outlaw behavior (e.g., assault, homicide) and we provide a web of narrow necessity defenses in extreme cases, such as self-defense, lesser of evils or necessity, duress, use of force for protection of property, etc. That is not “legalize and regulate”! It’s just not even close.
The use of force in law enforcement is a good example. It is an affirmative necessity defense spelled out as a justification that protects the officer against a charge of assault or homicide. The conduct is prohibited—assaulting or killing a person—and the justification serves as an affirmative defense to a prosecution. We do not legalize police officers shooting suspects. We afford a necessity defense in extreme cases. How would this be any different than a necessity defense in the case of torturous interrogation? It wouldn’t be. The fact is, their characterization of criminal law is erroneous.
The way to properly style the question, then, is whether there is any reason to have a separate necessity provision for torturous interrogation? Is there any reason that the traditional necessity defense, codified in most penal statutes, should not suffice? (And note, we can’t simply fall back, ourselves, on the status quo argument).
So it is here, I would argue, that the release of the torture memos adds something important to the debate we were having. These memos are the reality check that prove the central benefit of the necessity approach: 20/20 hindsight. Yes, 20/20 hindsight! You may laugh and respond that ‘hindsight is 20/20.’ But that is precisely the point. And it is something we need to exploit, rather than mock. The necessity approach does just that: it uses the fact that hindsight is 20/20. It allows us to weigh evils when we actually know what we are talking about. We are not speculating anymore. We are not in the classroom throwing out hypotheticals. We can now see, with hindsight, both sides of the ledger. We can see which waterboarding techniques were actually used by interrogators, we can see that they were used 83 times in August 2002 against Al Qaeda suspect Abu Zubaydah and 183 times in March 2003 against Khalid Shaikh Mohammed, and we can determine with great precision what was obtained from those torturous interrogations—apparently very little in the case of Abu Zubaydah. We do not need to pass judgment ahead of time or protect anyone who acts in good faith. We can look at all the evidence dispassionately after the fact and determine who was right and who was wrong.
The torture memos are, in my opinion, conclusive evidence that a backward looking legal regime is far superior to Posner and Vermeule’s proposed idea of legalizing and regulating torturous interrogation. Now, to the more pressing questions of impeachment and prosecutions. .. but I have to run to class now where I am teaching, believe it or not… the necessity defense!