Sorting through the Torture Debate: Lederman in a Split Decision

Marty Lederman of Balkinization has been kind enough to leave a comment below wondering why I only give him a “split” decision in his debate with Heather Macdonald over U.S. interrogation tactics. They have recently continued their debate here. I agree with Mickey Kaus that the Macdonald-Lederman debate usefully clarifies a lot of the confusion (some of it intentional) by partisans on both sides. So here’s my scoring of the debate, so delayed in blogosphere terms that no one can remember what the original discussion was about.

(1) MacDonald is certainly on strong legal ground when she argues that Al-Qaeda members, irregular Taliban fighters, and (I would argue maybe Iraqi insurgents) do not deserve the full protection of the Geneva Conventions in the same way that, say, Iraqi soldiers in the Saddam regime deserved. Round goes to Macdonald

(2) But Lederman rightly points out that laws other than the Geneva Convention are at stake here. The U.S. is obligated by treaty and statute to abide by the Convention against Torture and U.S. soldiers are bound by the Uniform Code of Military Justice. These laws apply whether or not the “terrorists” are “lawful or unlawful combatants.” Round goes to Lederman

(3) Lederman goes on to blast DOJ and DOD lawyers for coming up with such narrow interpretations of these laws as to be completely implausible. Here, I think he is on less solid ground. The U.S. may receive the opprobrium of the international community, or it may not, but I am not convinced that the traditional methods of statutory interpretation here require a different result. Nothing in the plain text, legislative history, or case law of the Torture Implementing Statute leads me to say Lederman is wrong, but nothing leads me to say he is right either. For instance, both the widely decried August 1, 2002 memo and the recent December 2004 retraction seem persuasive as a matter of statutory interpretation to me. Both attempt to interpret the text, in light of its common meaning, its legislative history and intent, relevant caselaw, etc. etc.

Surely, Lederman agrees that the executive branch has some discretion, partially derived from its Commander-in-Chief power, to adopt narrow interpretations of laws governing their conduct of military and foreign policy. I probably would have drawn the line differently here, but I can’t fault lawyers for trying to come up with an interpretation of the law that narrowly gives the executive discretion over interrogations. Given that most people agree that there are extreme circumstances where extremely coercive techniques are at least morally justified (the ticking time bomb scenario), wouldn’t we prefer to give the executive the discretion to determine when to use extreme coercive interrogations?

Don’t get me wrong. The abuse of this discretion at Abu Ghraib, Guantanamo and probably by the CIA overseas is wrong and, if the facts that are coming out are true, they are horrendous. But I’m not convinced that some of the coercive techniques approved (say waterboarding or sleep deprivation) could never be legal and I do think the executive needs some discretion to determine when such extreme measures are necessary. No winner here.

(4) Having endorsed giving the executive discretion under the law, it is crucial that we can hold those executive branch officials for abuse of that discretion. Macdonald and other defenders of the Administration harp on the fact that the Administration never approved the abuses at Abu Ghraib and even Lederman agrees there is no “smoking gun” linking high officials to the abuses. Instead, he relies on the legal analysis creating a culture of tolerance for abuse. I’m not convinced that legal analysis exploring the limits of legal discretion in extreme circumstances inexorably leads to abuses, but in this case, there was obviously some severe and horrendously damaging abuse of discretion here.

If the Administration has a policy to treat detainees “humanely” but nonetheless prisoners are not being treated “humanely” as well as (possibly) in violation of certain laws, the Administration is responsible for not preventing these abuses, even if they were not technically illegal. In order for the Administration to use coercive interrogations skirting the lines of legality, they must demonstrate the judgment and the credibility that they would wield such power judiciously. Their record thus far is not very reassuring, to say the least.

No one in the Administration is defending the abuses, but no one in the administration is taking responsibility for the abuses either. Macdonald’s defense would be a lot stronger if she would at least concede that serious mistakes were made by the Administration and someone has to take responsibility for it. Round and decision goes to Lederman

I certainly admire Lederman’s analysis of the so-called “Torture Memos” and their effect on U.S. interrogation policies. He has certainly provided the most comprehensive blend of legal analysis and factual investigation of the various interrogation controversies that I’ve seen anywhere in the blogosphere. But while he is rightly outraged by the abuses in the interrogation policy, I think his focus on the legal memos misses the mark. The scandal is not that lawyers explored the outer limits of the law. The scandal is that the Administration could not prevent abuses that may have been torture even when it said they wanted to, and has not pledged to take any serious measures to prevent this from happening again. That’s bad enough.