Shocking the Conscience
In May of 2005, AAG Steven Bradbury produced a memo in response to the CIA’s request that the OLC determine whether or not its use of EITs would violate the UN Convention Against Torture treaty, “if the geographical limitations did not apply [to Guantanamo Bay]” (p. 146). The Bradbury’s Article 16 Memo concludes (much as we would expect) that EITs do not constitute the “cruel, inhuman, or degrading treatment or punishment” prohibited by CAT. As the OPR Report explains, “the only restraint imposed on CIA interrogators by Article 16, according to the memorandum, was the ‘Fifth Amendment’s prohibition of executive conduct that ‘shocks the conscience’” (p. 147).
A peculiar phrase, that. Shocks the conscience. Certainly, the following image shocked the conscience of countless Americans:
And then, of course, there was this image:
And this one:
If the conscience in question is that of the public, then it is undoubtedly true that the above images from Abu Ghraib, along with the EITs used at Guantanamo Bay — notably waterboarding — “shock the conscience.” But, of course, the conscience in question is not that of the public; it is a legal abstraction. Conscience, in the eyes of the law, is not a moral impulse or innate sense of right and wrong. It is, on the contrary, a carefully molded legal category.
The way to mold legal categories is to make distinctions, as the authors of the Memo were clearly well aware. First, the Memo distinguishes between conduct that is “constitutionally arbitrary” and conduct that has a “reasonable justification in the service of a legitimate governmental objective” (OPR Report, p. 147). In arguing that EITs fall into the latter category, the Memo cites the role of EITs in “preventing future terrorist attacks by Al Qaeda” (p. 147). It is not the what, but the what for that counts.
Second, the Memo is careful to distinguish between the government’s interest in preventing terrorist attacks and other “legitimate government objectives.” The Memo discusses three domestic criminal investigations — which is what it means by other “legitimate government objectives” — in which the Supreme Court ruled that the conduct of the police had “shocked the conscience.” As summarized by the OPR Report, these are:
Rochin v. California, 342 U.S. 165 (1952) (police pumped defendant’s stomach to recover narcotics); Williams v. United States, 341 U.S. 97 (1951) (suspects were beaten with a rubber hose, a pistol, and other implements for several hours until they confessed); Chavez v. Martinez, 538 U.S. 760 (2003) (police questioned a gunshot victim who was in severe pain and believed he was dying). Article 16 Memo at 34 (p. 148).
Coercion is coercion — right? Wrong. According to the Memo, one must consider the purpose of coercive techniques in determining whether or not they “shock the conscience.” To put it in legalese, the authors of the Memo do not believe that
the tradition that emerges from the police interrogation context provides controlling evidence of a relevant executive tradition prohibiting use of these techniques in the quite different context of interrogations undertaken solely to prevent foreign attacks against the United States and its interests (p. 148).
Legal precedent cannot decide whether or not a given EIT counts as torture, as the threat of terrorist attacks is — or is said to be — altogether unique. Conduct that might otherwise shock the conscience does not in fact shock the abstract legal conscience, distinguishing as it does between “constitutionally arbitrary” conduct and conduct that advances government objectives; between what is permissible according to ordinary, domestic laws and the exceptional measures required to prevent terrorism.
Finally, the Memo distinguishes between “coercive interrogation tactics by other countries” and the CIA’s use of EITs (p. 149). If this sounds like even more of a stretch than the distinction between law enforcement and national security, it is. The United States, it turns out, “strongly criticized countries such as Indonesia, Egypt, and Algeria for using EITs such as ‘food and sleep deprivation,’ ‘stripping and blindfolding victims,’ ‘dousing victims with water,’ and beating victims,’” (p. 149).
Why should the United States be permitted to do things we condemn in other countries? The straight answer is: for the same reason we get to have nuclear weapons; because we are — or think we are — the good guys. When it comes to EITs, however, there are very few straight answers. What we get instead must be quoted in full to be believed:
[The EITs practiced abroad] were found by the Article 16 Memo to be “part of a course of conduct that involves techniques and is undertaken in ways that bear no resemblance to the CIA interrogation program” . . . The memorandum also noted that the State Department Reports do not “provide precise descriptions” of the techniques being criticized, and that the countries in question use EITs to punish, to obtain confessions, or to control political dissent, not to “protect against terrorist threats or for any similarly vital government interests . . .” Nor is there any “indication that [the criticized] countries apply careful screening procedures, medical monitoring, or any of the other safeguards required by the CIA interrogation program” (p. 149).
Not having “precise descriptions” of the EITs practiced abroad, the Memo professes that it is unable to determine whether sleep deprivation in Indonesia bears any resemblance to sleep deprivation in Guantanamo Bay; or whether stripping a detainee naked in Egypt is or is not anything like stripping a detainee naked in Guantanamo Bay. Lacking these “precise descriptions,” all comparisons between the US and abroad are necessarily speculative. Moreover, even if we were comparing apples to apples, foreign apples are ideologically rotten apples. The conscience is shocked if and only if someone else is doing the torture for some other reason that we do not approve of, and that we are not safeguarding or monitoring.
The conscience, as a legal category created by the Article 16 Memo, is, in short, shocked by others: by purposes that are not the CIAs, in contexts that are not identical to detainee camps, by techniques that differ from those of the CIA — and above all, by countries other than the United States.
What shocks my conscience, however, is this: