On the OLC torture memos

Following up on Jack Balkin's fine expression of outrage, Marty Lederman, who used to work for the Office of Legal Counsel (but wasn't involved in any of this), has a valuable series of posts on Balkin's blog explaining the difference between the 2002 and 2004 OLC torture opinions, why the 2002 one in particular was so unconscionable, the peculiar process used to produce it, how this relates to legal restrictions on various parts of the government, and the concerns that remain.

Parts II and III bring up an important point that I hadn't considered. There are many different laws, treaties, and a couple of Constitutional amendments that touch on this subject, and most of them go much further than outlawing conduct defined as "torture"; why was the OLC even going to all this trouble to define torture, if conduct far less severe than torture is actually unlawful? The answer appears to be that, for the specific case of CIA interrogations overseas, the Administration regards a wide range of inhumane conduct to be permissible as long as it isn't legally defined as torture (and the 2002 OLC memo came close to defining torture out of existence).

The long list of hair-splitting arguments to this effect that Lederman recounts in Part III becomes more and more infuriating as it goes on. If simple moral standards don't cut it, consider the self-interested argument for humane treatment of detained foreigners: that if we don't practice it, if we conduct ourselves as wild beasts overseas, others are unlikely to extend any humanity to American prisoners, regardless of how many loopholes in the Bill of Rights, UCMJ and Geneva Conventions we can cite. Al-Qaeda fanatics may not treat American prisoners humanely anyway, but not every real or potential enemy is an al-Qaeda fanatic. This is in part about the safety of US troops and agents overseas.

The legal arguments applied to CIA interrogations don't apply to the abuses at Abu Ghraib and Guantanamo, which are illegal no matter how you slice the law. So the 2002 OLC memo didn't, technically, authorize those abuses. However, Lederman persuasively argues in Part I that it could easily have been interpreted as doing so in the field; unlike the 2004 memo, it bore no clarification that it wasn't the beginning and end of federal restrictions on treatment of prisoners. And, in general, it appeared as part of a culture of essentially unlimited executive power in terrorism- and war-related matters.

Part of Lederman's coda is worth repeating:

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

In any case, I think it's safe to say that nobody responsible for the 2002 memo is fit to be Attorney General.

After pentomino

There also ought to be a word for the situation in which an item in the common culture (such as a tune, title or character name) sounds slightly odd to you for years, because you were first exposed to a parody or pastiche of it in children's TV programming and took that as the original.

I'm sure either Rich Hall or Terry Jones could assign an arbitrary name for this, though it would not be terribly useful.