Three Takes on the OLC Torture Memos

By Peter M. Shane

Take One

Let’s do a thought experiment. Imagine an adversary of the United States has captured one of our soldiers. Imagine that our enemy keeps this soldier awake for over 48 hours “standing and . . . handcuffed, [with] the handcuffs . . . attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body, so that the detainee has approximately a two- to three-foot diameter of movement. The detainee’s feet are shackled to a bolt in the floor.”

Imagine now that adversary captures one of our sailors. While in captivity, the sailor “is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning.”

Here’s my question: Do you think these service people have been tortured? Did it take you more than a nanosecond to answer that question?

Take Two

The four Office of Legal Counsel memos released last week, in which OLC essentially approved as “non-torture” a roster of heinous interrogation techniques that ought to shock the conscience of anyone purporting to believe in human rights, embody about as monstrous a corruption of the lawyering process as one can imagine. Before making this point in detail, I’d like to offer future generations of Justice Department lawyers a helpful rule relevant to this subject: “If it takes you more than a paragraph to explain persuasively why something is not torture, it’s torture.”

The four OLC opinions are part of what appears to have been a body of confidential faux jurisprudence interpreting the federal law against torture. One opinion in the series, apparently intended as a framework for further analysis, famously opined that Congress could not limit, by statute, how the executive branch questions military detainees: Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief clause of the President.”

The same memo drastically limited the categories of misery that would be sufficiently serious to count as torture under federal law. OLC interpreted “severe physical . . . pain or suffering” to be pain or suffering at “the level that would ordinarily be associated with a sufficiently serious physical injury such as death, organ failure, or serious impairment of body functions.”

The strategy of the newly released opinions follows directly upon the rhetorical strategy of the framework opinion. First, the framework opinion resorted to drastic legal and linguistic contortions to reduce the natural scope of the anti-torture statute. Then, the opinions on interrogation techniques trotted out every conceivable factual characterization that would put the techniques in question on the right side of this definition.

In my new book on executive power, I explain the first move as follows:

“OLC relied on the idea that other statutes with similar phrasing may shed light on the textual meaning in question through analogy. Specifically, OLC turned to other statutes that refer to “severe pain.” Not finding any such statutes that apply to a military context, however, they cited statutes that define emergency medical conditions that would entitle their victims to federally funded health benefits. As OLC notes:

“These statutes define an emergency condition as one “manifesting itself by acute symptoms of sufficient security (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in — placing the health of the individual … (I) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” Although these statutes address a substantially different subject from [the statutory prohibition on torture], they are nonetheless helpful for understanding what constitutes severe physical pain.


“In other words, to count as ‘torture,’ physical pain would have to be of comparable severity to the pain that would entitle its sufferer to government-provided health insurance!

“This is an amazing performance . . . . In defining “severe pain” for emergency health insurance purposes, Congress was presumably creating a very narrow entitlement to fill a hole in a much more comprehensive scheme of health insurance. This has nothing to do with levels of brutality appropriate to military detainees. Looking at health insurance statutes to determine the meaning of torture is a little like defining the rules in a ‘court’ of law by looking up the rules that apply to a basketball ‘court.’ It is more of a play on words than serious lawyering.”

Having resorted to such tragi-comic lengths to limit the definition of torture, OLC then, quite naturally, resorted to equally strained reasoning to minimize the miseries inflicted by the “proposed conduct” on which it was actually opining. The reason I say, “quite naturally,” is that all of these opinions – both the framework and its application — were written with the transparent purpose of allowing the CIA to do pretty much whatever it wanted to do. OLC’s statutory reading is incompetent, and the application is – forgive me – torturous.

Lost in this nonsense is the actual role of government lawyering. Perhaps the most important reason we have government lawyers is to “take care that the laws be faithfully executed” even when laws are ambiguous and especially when no one is looking. If the rule of law is to have any meaning, government lawyers playing an advisory function must take a relatively objective stance. If advising counsel do not give the law its most conscientious interpretation, there will frequently be no one else effectively situated to do the job of assuring diligence in legal compliance. It is critical that government lawyers remember that their “client” is the American people, and not the ephemeral roster of incumbent federal officer holders.

The opinions thus far released cast the OLC lawyers as complicit, even if possibly reluctant enablers of cruel and inhuman treatment. They do not deserve to be called lawyering.

Take Three

I have never been one to display conspicuously my diplomas or memorabilia of past institutional associations – with one notable exception. My law school office has always featured a framed copy of the Justice Department seal that my OLC colleagues autographed and gave me when I departed Justice for academe in June, 1981. OLC was my first post-clerkship legal job, and I got to work for John Harmon and Ted Olson, two fabulous lawyers and wonderful bosses. Watching each of them in action taught me a lot about honor. When I read the just-released opinions, I felt like throwing up. As an American, as a lawyer, as an OLC alum, I cannot help but take this personally.

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One Response to “Three Takes on the OLC Torture Memos”

  1. Weekly Web Watch (4/19-4/26) « EXECUTIVE WATCH Says:

    [...] the most salient features of the memos, while Peter Shane says, as a former OLC official, they make him want to vomit. Former President Bush speechwriter Marc Thiessen marshals evidence from the memos themselves to [...]

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