What Torture Is and Is Not Like
The Article 16 Memo — to reiterate — concludes that the CIA’s use of EITs does not violate the Fifth Amendment prohibition of conduct that “shocks the conscience.”
Never mind that it makes no difference to a detainee why the CIA deprives him of sleep for days on end or shackles him to the ceiling: what shocks the Article 16 Memo conscience is whether or not the CIA’s reasons are “constitutionally arbitrary.”
Never mind the Supreme Court’s ruling that an investigation in which police questioned a gunshot victim who was in severe pain and believed he was dying “shocks the conscience”: according to the Article 16 Memo, the police interrogation context differs markedly from that of interrogations undertaken “solely to prevent foreign attacks against the United States and its interests” (p. 148).
Never mind the United States’ criticism of countries such as Indonesia, Egypt, and Algeria for using EITs like food and sleep deprivation and forced nudity: lacking “precise descriptions” of these practices, the Article 16 Memo cannot determine whether forced nudity in Egypt is or is not anything like forced nudity in Guantanamo Bay.
When it comes to the phrases “specific intent” and “good faith” — both of which have the potential to reduce CIA culpability for violating international law — the OLC is, however, quite liberal in drawing comparisons. Here is the OPR Report’s summary of the Bybee Memo’s use of “specific intent”:
The first paragraph of the Bybee Memo’s discussion of specific intent cited Ratzlaf v. United States, 510 U.S. 135 (1994), as an example of what was required to show specific intent:
For example, in Ratzlaf . . . , the statute at issue was construed to require that the defendant act with the “specific intent to commit the crime.” (Internal quotation marks and citation omitted.) As a result, the defendant had to act with the express “purpose to disobey the law” in order for the mens rea element to be satisfied . . .
Bybee Memo at 3 (citing and quoting Ratzlaf, 510 U.S. at 141). The Bybee Memo clearly implied that the Court had considered the meaning of specific intent and had concluded that it required an express purpose to disobey the law on the part of the defendant. The statute under review in that case penalized “willful violations” of the Treasury Department’s cash transaction reporting regulations and had concluded that it required an express purpose to disobey the law on the part of the defendant (p. 171).
Appropriate comparisons are comparisons that bolster the case for EITs — which is why the Bybee Memo cites a case involving the Treasury Department’s “cash transaction reporting regulations” here. The Article 16 Memo, by contrast, discounts both criminal investigation at home and the use of EITs abroad in defining the potentially harmful phrase “shocks the conscience.”
Another example of the OLC’s self-serving use of legal precedent is the Bybee Memo’s definition of “good faith.” Here is the OPR Report expressing its disapproval:
The Bybee Memo cited three cases in support of its conclusion that the good faith defense would apply to prosecutions under the torture statute, but did not point out that the good faith defense is generally limited to fraud or tax prosecutions . . . The Bybee Memo did not address the possibility that a court might refuse to extend the good faith defense to a crime of violence such as torture (p. 174).
In addition to cases involving “cash transaction reporting regulations,” the OLC cites cases involving fraud and tax prosecutions as pertinent to “specific intent” and “good faith” — terms that substantially reduce the culpability of interrogators. Yet, with respect to the phrase “shocks the conscience,” the OLC rejects far more apt comparisons between the CIA, criminal investigations at home, and the use of EITs abroad. How convenient.