Writing at Balkinization, Brian Tamanaha raises some interesting points about the factual premises of recently released OLC memos. (See this and this.) His basic arguments are:
(1) OLC lawyers could not have relied in good faith on the representations of CIA officials regarding the effects of various abusive techniques because such officials had an incentive to understate those effects (which they had already produced in some cases) in order to gain legal cover for their actions. They had an incentive to lie.
(2) Those lawyers could not in good faith issue opinions regarding the use of such techniques in combination because there was no evidence of what happened when the techniques were combined.
I don't have a brief for these memos, much less for the policy choices that led to them being written. But I do worry that moral objections to abusive treatment too readily lead to claims that the lawyers in question had to have been corrupt rather than mistaken.
In my view, such basic moral objections tend to undermine the notionally professional discourse they animate (more on that in a separate post). More practically, and thus more importantly to me, moral objections couched as professional objections are more likely to impede than to assist investigation into how the memoranda were written and what effects they had. Such investigation seems doubtful as it is; no one is going to take seriously hearings that amount to no more than an extended version of the two minutes' hate.
I favor investigation, so I favor caution in drawing inferences of ill motive. The move should be a last resort, made only if compelled by the evidence. And, I believe, Professor Tamanaha too readily infers bad faith from the premises identified above. The reasons are below the fold.
Regarding Professor Tamanaha's first point, opinion letters cover only the facts recited in them, so the self-interest of CIA officials reporting those facts is offset to some degree by the risk that if they lied they would not receive the immunity they sought. This basic point is stated more or less explicitly in the memoranda, but would hold even if it were not.
In my view, the risk that immunity would not apply if the officials misrepresented the facts provides enough of a check on lying to conclude that the OLC lawyers were not ethically required to disbelieve the facts presented to them. That does not imply that the lawyers could adopt an uncritical stance toward the facts, of course. It would be different if the lawyers knew of facts contradicting those presented to them, or if the accounts presented to them were internally contradictory. Competence then would require further investigation sufficient to iron out the conflicts. But that is not Professor Tamanaha's charge.
It is true, as he points out, that well-qualified people familiar with the techniques recited in the memoranda thought those techniques are torture. I think of that as a legal disagreement, though, which calls into question the OLC's statutory interpretation, rather than a question of fact about what is being done and what consequences it has. It is the difference between, "yes that is what they are doing and that is torture," which presents a legal issue, and "no, that's not what happens at all," which presents a factual issue.
There is also an important distinction between what could be observed directly--the acts themselves--and what could not--the pain and suffering caused by those acts. Officials could only opine authoritatively on the visible acts; evidence of some effects would have to come relatively indirectly--through observation of the expressions of pain and suffering from people to whom these things were done. (I suppose blood pressure, heart rate, and some other things might be monitored more precisely, a thought I find ghoulish but nonetheless probably true.) And even if the acts themselves were constant (which I tend to doubt) their effects might differ according to the pain threshold of particular people.
Representations as to effects of these acts are to some degree less solid facts than representations and studies regarding the acts themselves. But what does one do with this fact? One possibility would be for lawyers to observe the acts themselves or, as Professor Tamanaha suggests in comments, to undergo the acts. But lawyers are not trained to make scaled assessments of medical conditions and their own experience would be highly unrepresentative of what a detainee would face--the lawyer would know it was just an experiment that would end soon, and that the people abusing him would take care to do no permanent harm.
I would not want a lawyer to extrapolate from that experience alone, so it does not solve the problem of relying on indirect information regarding effects. I see no real satisfactory solution to the problem of measuring effects, and thus do not see that it points to a particular conclusion. (It might point to lawyers refusing to issue any opinion for which evidence was less than certain, but that stance sacrifices the chance to rule things out, which seems to me an important part of giving such advice.)
Professor Tamanaha's second point is stronger. When a lawyer has no factual basis for a conclusion, such as what happens when abusive tactics are combined, the lawyer should not reach that conclusion. Perhaps competence required that OLC ask the CIA to test the combined procedures (presumably on CIA volunteers, though their experience would be unlike that of a detainee) and report the results prior to issuing an opinion.
These memoranda hedge more than Professor Tamanaha's judgments imply, though. Their basic move, I think (they could be clearer on this), is to approve combined techniques only if the techniques do not produce effects that deviate from those for which there is a factual record. (A different reading could be supported, though, and I wouldn't claim this reading is definitive.) And some extrapolation would be required no matter what--from CIA officials to detainees, or from military experience to detainees, or from one detainee to another--which means the fact that extrapolation is involved is not itself evidence of bad faith. It is a question of degree.
The upshot of this is not that Professor Tamanaha is wrong to fault the memoranda for reaching conclusions that went beyond the facts. I am sympathetic to that view. And in some cases it is fair to infer bad faith from lawyering of exceptionally poor quality. But in this case Professor Tamanaha's legitimate point does not seem to me to rise (sink?) to the level needed to sustain an inference of bad faith.
I think it is important to learn the facts about how these opinions came to be written and what effects they had. I hope there is Congressional inquiry. But we are more likely to get those facts if the rhetorical volume is lower and more measured than we are if any such inquiry can be dismissed as moral discourse masquerading as something else.
DM