Revisiting the Posner and Vermeule Argument for the Legalization of Torturous Interrogation

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! 

NB.  Here are some interesting recent legal posts on the torture memos by Dale Carpenter, Scott Horton, Brian Tamanaha, and the folks at the Volokh Conspiracy.

Comments

[FrankMCook]

Not long ago I read "the People of the Book" a fictional history of the Sarajevo Haggadah. I was chilled reading a description of water boarding by the Spanish Inquisition. What really bothered me was the realization that my country had adopted the tactics used to drive not only the Jews but also the "Moors" from Spain. How could we be so stupid? Did no one recognize that in a part of the world that still remembers the Crusades, this too would be associated with past grievances?

[Account Deleted]

Even when a person is sentenced to capital punishment for committing the most heinous crime, a civilized society demands that the method of execution must be as painless and swift as possible to the condemned person. Even the lethal injection which is widely used in this country has been challenged countless times in the Supreme Court for the cruelty it is supposed to inflict during the last few moments of the executed person's life.

One wonders what sort of mental makeup the interrogator should have to sit quietly in his chair (possibly with a Cuban cigar dangling from his mouth), supervise the prisoner being water-boarded 183 times and enjoy watching him undergo death throes 183 times. What is the difference between the acts of these interrogators and those of the notorious Nazi concentration camp guards who are being hounded from their deathbeds to be brought to justice even after six decades, day in day out?

Do the ends always justify the means?

BTW, what was the motive behind Obama's move to make these memos public, if he has no intention to punish, not the CIA underlings who acted under orders, but at least those higher up in the chain of command who justified these methods of interrogation and issued the orders to carry them out? Was it just to paint and portray his predecessor in the worst light possible?

[rtm]

Thank you Professor Harcourt for the thought provoking post. A few points. The assumption that “torturous interrogation works” seems highly plausible to me. Whether I consider the observations of Americans who have endured torture in war (e.g., McCain and Stockdale in Vietnam) or simply reflect on my own propensity to modify behavior when confronted with the prospect of pain, I believe that most humans have a “breaking point” beyond which – for better or worse - they will say or do whatever will stop or prevent the pain. Outliers (perhaps Abu Zubaydah) provide interesting data points but probably shouldn’t lead us to throw away what we know about human nature. I could be persuaded otherwise, but do think that we should give the benefit of the doubt to Posner and Vermeule on this point.

More contentiously – apologies – I think it worthwhile to consider a natural counterpart to the torture memos in the recent news cycle, the rescue of Capt. Phillips (or the execution of three pirates); compare and contrast. The pirates were primarily looking to make money whereas the terrorists that we torture are ostensibly looking to inflict pain and suffering on Americans. We killed the pirates; we inflict pain and suffering on terrorists, but presumably only to gather information and, generally, not to the point of permanently injuring them. The three dead pirates threatened the life of one American; the terrorists may well have had knowledge of plots that threatened thousands of Americans (or others, no preference for Americans intended). Pirates dead; terrorists alive. Popular verdict: pirates deserved what they got and terrorists are victims.

It seems that all of this deals with horror and tragedy. As well-meaning people, we would naturally prefer a world without terrorists or pirates. Given, however, that ours is populated with both, we need to deal with it as best we can. If we capture Bin Laden tomorrow, I would hope that he would cooperate fully without choosing to resist, thereby inviting torture. But supposing he wants to persevere in his “righteous” path of threatening non-combatants, where do we draw the line regarding amount of coercion we can impose on him? We can debate “optimal deterrence” until the end of time but the folks across the interrogation table are trying to save lives and are faced with a man who would rather give up his left pinky than divulge plots that threaten thousands of innocent Americans. They don’t have until the end of time. In such a case, I would think it unfortunate if they didn’t challenge his allegiance to the other nine fingers.

[Joe]

In fact, rtm, as some accounts have shown, a reading history (and McCain says this too) suggests that repeatedly people give false information to avoid torture. This is seen in many domestic false interrogation cases too, under much less stressful conditions than these.

Likewise, facts underline that "generally, not to the point of permanently injuring them" is also misleading at best. Some "interrogated" have died. Others DID have permanent physical and mental injuries.

The pirates were shot because an innocent was at the moment in clear risk of life and limb. They were not waterboarded or toyed with like a mouse in the grasp of a cat. The "terrorists" (we only questioned guilty people in this fashion? again, sorry, not true) were not, and in fact, supplied information to deal with risks (the captain in a sense WAS a sort of ticking time bomb) without torture.

Finally, bans on torture are a result of long history that underlines inhumanity does not lead to productive ends in the long run. Fantasies of crushing the fingers of Bin Ladin aside.

[mls]

I agree with the concept of a necessity regime, but the determination of necessity should not be made by the CIA agents who are conducting the interrogation. The determination of necessity should be made by the President, who has the constitutional responsiblity to protect the United States from attack. Just as the President can order an assasination by authorizing a covert action (which requires notice to congressional leaders), so should he be able to authorize the use of torture with a special finding as to the need therefor and the methods authorized.

If Congress doesn't like it, the Constitution provides it a remedy.

There is no reason why the CIA agents who were doing their jobs should be made into scapegoats.

[Ursula]

mis, I think you must be misunderstanding the nature of the 'necessity' discussed here; it's generally an affirmative defense to criminal charges. The President can't determine 'necessity' in this context any more than anyone other than a jury can.

And I have to agree that given our accession to the Convention Against Torture, the default assumption needs to be that torture is unjustified and the party charged should have the burden of rebutting that presumption. These are, after all, people's lives that we're talking about; is almost drowning a man 183 times (not to mention wall-standing, sleep deprivation, etc. etc.) worth whatever information we might get from him?

[mls]

Ursula- I do understand the nature of the necessity defense that is being discussed. My point is that it makes no sense to leave the determination of necessity up to the CIA interrogators. In the first place, it seems rather unfair to leave them in the position of weighing the possibility of losing their careers and freedom against the risk to the lives of thousands of their fellow citizens. Suppose they decide not to use illegal (or arguably illegal) interrogation techniques and there were to be another terrorist attack. Who is going to protect them against the inevitable charge that they put their own personal interests ahead of the public safety?

Second, unless time constraints make it impossible to elevate the decision to the presidential level (which was certainly not the case in any of the situations we are discussing), surely such a momentous decision must be made by the man (or woman) elected by the people to exercise the executive power. This is why the framers gave us a president. If the President has to give authorization before the Navy Seals can shoot pirates on the high seas, why wouldn’t he also have to authorize the use of torture?

Lets take another analogy. After the 1998 embassy bombings, President Clinton ordered missile strikes on Afghanistan and on a plant in Sudan that allegedly had Al Qaeda connections. It turned out that the target in Sudan was a mistake, and some unlucky fellow ended up dead as a result.

Suppose that there had been a comparable level of outrage following that incident (fortunately there wasn’t since I guess the deceased wasn’t as sympathetic a character as KSM). It is not at all obvious that Clinton had legal authority to fire missiles into Sudan, and people could have argued that his actions were illegal and even criminal. Congress could have impeached him and perhaps he even could have been tried criminally. But surely no one would argue that the soldiers who fired the missiles could or should have been held legally responsible.

I can’t see any reason why the same type of regime should not apply here.

[Joe]

"another analogy"

Another poor analogy. A decision to bomb some place is not akin to torturing prisoners. It is a specific act with unique long held horror, even if you personally think that uniqueness is lame.

And, it is unclear why regular soldiers, who can be under 21, are in various cases required to do "weighing," while much older and trained CIA agents are not. Some are in jail for failing, following principles of long standing. CIA agents, if anything less liable to be restrained in some respects given the military encourages a certain restraint the CIA might not, should have more discretion? Why exactly?

And, torture is against U.S. statutory law, it is surely against constitutional law, it is against int'l law too. The Constitution, that you are the one who want to change, requires the President to execute the law.

The President has no authority to "authorize the use of torture."

[Joe]

"discretion" here means discretion in fact, since they would be under less restraint given less liability in the long run

[mls]

Joe- first, I assume that you are the same Joe who frequents Balkinization, and wandered over here from there. (So did I, though this is my alma mater).

Second, I accept the sincerity of your revulsion at the interrogation techniques that were used by the CIA. However, it is difficult to have a rational discussion if you are unwilling to consider that your perspective is not the only possible one. It is like trying to discuss abortion with someone who is unwilling to consider the possibility that abortion is not exactly like cold-blooded murder.

Assertions like “a decision to bomb some place is not akin to torturing prisoners” do not constitute persuasive or logical argument. Why is a decision “to bomb some place” not akin to “torturing prisoners”? Does it matter that the “some place” is known to contain innocent civilians? Does it matter whether there is a good reason (or lawful authority) for the decision to bomb “some place”? Does it matter that the reason for “torturing prisoners” is not for fun or revenge, but to obtain information needed to stop the prisoners, or their allies, from bombing “some place” where thousands of Americans might die?

Third, your view is presumably that there can be no necessity that would ever justify torture. That’s fine, but it is contrary to Professor Harcourt’s argument. If one accepts, per Professor Harcourt, that there can be necessity to justify the use of torture, my point is that there is no possible justification for leaving the determination of necessity to the CIA interrogators. The fact that military and law enforcement personnel must sometimes make (very different) types of necessity calculations is of no moment, because in those cases there is no alternative.

If there is a logical response to my argument, I have not yet heard it.