The brittleness of elaborate thinking

From Norman Levy’s very interesting autobiography, The Final Prize: My life in the anti-apartheid struggle (2d ed. 2012), one striking detail:

Ruth First, in her account of her confinement under the 90-day law [which authorized solitary confinement, without trial, for renewable periods of 90 days, and was a vehicle for torture of opponents of apartheid], noted that activists who sometimes seemed weak and woolly in their thinking held out the longest and did not break under solitary detention. In contrast, others (she had herself in mind) succumbed with insufficient resistance. (Pages 314-15, footnote omitted)

I don’t join First (killed long ago by an apartheid letter-bomb) in her self-criticism; torture, even torture without physical violence, is designed to overpower and usually does. But the contrast she draws is intriguing: those who had fully and precisely elaborated ideological perspectives turned out to be more brittle than those whose thinking was fuzzier. Why would that be?

Surely one likely answer is that ideological precision is always a delusion. We know that all the ideologies of the past were imperfect in one or many ways – it’s easy to see that with the benefit of hindsight. What’s a little more difficult is to realize that that must be true of our own ideologies, right now, as well.

Meanwhile the elaborate effort involved in creating a complete intellectual structure, fending off attacks on it, rationalizing its inconsistencies, all bespeaks a person distanced from the simple emotional forces that fuel our lives. And that distance, that self-alienation, is not only a tool for the torturer – for those unfortunate enough to encounter one – but also a shadow cast across all of a person’s life.

Watching "Zero Dark Thirty"

In the story "Zero Dark Thirty" tells, torture contributes to the successful hunt for Osama bin Laden. The controversy over whether this story is historically accurate is intriguing for its political intensity, and worth discussion on that ground alone, but in the end the answer to the question “who learned what and how” in the pursuit of bin Laden by no means is an answer to the question of whether torture can actually be justified.

First, the controversy over the facts. In a December 19,2012 letter to Michael Morell, Acting Director of the CIA, Senators Feinstein, Levin and McCain cited a finding of the Senate Select Committee on Intelligence in its study of the role torture had played:

The CIA did not first learn about the existence of the UBL [Osama bin Laden] courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier's identity from CIA detainees subjected to coercive techniques. No CIA detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which UBL was hidden. Instead, the CIA learned of the existence of the courier, his true name, and location through means unrelated to the CIA detention and interrogation program.

But at least in most respects the film does not contradict this account. The film may portray the interrogators as having first learned of the courier’s existence from a tortured detainee – and if the film does tell the story in this way, that would be inconsistent with the first element of this Senate committee’s finding. But the film in fact makes clear that the courier’s identity was not learned from anyone’s revelation under torture. Instead, according to the film the courier’s identity was found in a file that had been overlooked for many years; none of the people tortured had referred to the courier by anything except a nom de guerre, and no one had provided his whereabouts. The CIA analyst who discerns the centrality of this elusive figure does so by recognizing a pattern of nondisclosure – men who revealed other things remained discrete about the courier, and that very lack of disclosure emphasized his importance.

The Senators’ letter also quotes confirmation of the Committee’s finding that Leon Panetta provided in a letter to Senator McCain in May 2011. Panetta wrote:

… no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.

Again, the film’s account does not contradict this statement. What the film says is that interrogations, including interrogations with torture, provided evidence of the courier’s existence and – through silences – pointed to his importance. What Panetta wrote does not contradict this account, nor (except, as noted, in one significant respect) does the Senate Committee’s finding. 

It seems clear that the facts about what the interrogations elicited can be spun in very different ways. It is interesting that the Senate Committee and Secretary Panetta construed the facts in a way that minimized the role that torture played. That reading supports a commitment to turn away from torture as an instrument of war.  Perhaps there are some within the CIA who have a different agenda, meant to vindicate the reputation of an agency tainted by the practices of the Bush years. It seems pretty clear -- as the Senators’ letter emphasizes – that the CIA talked with the filmmakers, and it seems reasonable to infer that the story the film tells is the story the CIA told. One might also infer that the Senators, who have labored hard to remove torture from US anti-terrorism efforts, feel blindsided by the story the CIA seems to have told to the filmmakers and that the film has now told the world. 

But, second, what does this controversy prove? To me the argument seems somewhat misguided. I don’t doubt that people who are tortured will often reveal information – they have agonizingly good reason to do so. No doubt they will also often distort what they say in any way they believe they can get away with, or give up some information but hold onto other more vital facts, and no doubt they will also sometimes invent facts either as diversions or as desperate efforts to please their tormentors. All of these make the information derived from torture suspect, but to me it is simply implausible to believe that no accurate information is elicited this way.

If the torture of Al Qaeda detainees really produced a telling pattern of nondisclosure of information about this courier, though, that’s actually quite odd. On this account, torture failed again and again to elicit this information; apparently a series of Al Qaeda detainees were able to draw the line against revealing this particular set of facts. If that were so, it would actually be some indication of the inefficacy of torture. Or perhaps what the pattern of nondisclosure means is not that the detainees somehow all resisted this last revelation, but rather that none of them had this information to disclose – which might indeed have suggested, tellingly, that Al Qaeda was very tightly controlling access to this information. But the film also tells us that the CIA inferred that bin Laden was in his refuge because more women than men were visible in surveillance photos of the building; the missing man, they inferred, could be bin Laden. That inference makes no sense at all, because Muslims can be polygamous (as bin Laden himself was). The presence of more women than men therefore didn’t demonstrate the existence of a missing man at all. It seems possible that the CIA analysts were right, but for the wrong reasons – and perhaps the pattern of silence about the courier was not so much a pattern as an inspired guess on the part of the investigators.

In any case, the issue about torture shouldn’t be whether it ever produces useful information. Rather the question should be whether the sometimes useful, sometimes useless or misleading, information is worth the price. One part of that calculus is the question of whether the same information could have been obtained in other ways – as the movie tells us that the crucial detail of the courier’s real name was. Another part, a crucial part, is the question of whether the harm done to the country by its embrace of torture outweighs – in moral terms, and in pragmatic terms as well – the value of whatever revelations torture might have produced. I think we should demand far more proof than the story this film tells (even assuming it is entirely accurate) to overturn the lesson that torture is wrong.

The film tells a version of the story of how the U.S. killed Osama bin Laden. It does not tell us whether we might have achieved that objective better by other means. It does not even tell us whether achieving that objective ultimately mattered. It’s worth remembering that the hunt for bin Laden was certainly not a “ticking bomb” situation, where – as in “24” – only immediate, horrible acts could forestall even worse impending disaster. The day I watched the film was the day of the bloody end of a hostage crisis in Algeria, where Islamic militants -- not necessarily even Al Qaeda affiliates but perhaps a group split off from Al Qaeda -- seized the In Amenas natural gas plant in an operation presented to the world as a response to French military intervention in Mali against other Al Qaeda members or allies. Do we live in a more secure world because of Osama bin Laden’s death, achieved – if the movie is accurate – in part through the use of torture? It is not easy to reassure oneself that we do.

Interpreting the torture statute's meaning, continued

Jeremy Waldron, in his book Torture, Terror and Trade-offs: Philosophy for the White House (2010), offers another argument against the President's right to ask his or her lawyers for a precise answer to the question of what conduct the torture statute actually forbids. Actually, he does not argue against the President's seeking precision; rather he argues against the President's treating the torture statute as a problem to be maneuvered around. Asking what the statute forbids isn't necessarily part of trying to circumvent it, and I don't take Waldron to be arguing that Presidents are barred from seeking precision if that is all they are seeking.

What Waldron is arguing is that Presidents have no right to treat law as something to undercut and evade. In this, Presidents are quite unlike ordinary citizens. Because the rule of law exists to protect individual freedom, Waldron argues (at 322), "there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inapproriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear."

Why are Presidents (and governments) different, on Waldron's account? Because government does not have a right to individual freedom; in fact, absence of law binding government creates peril for individual freedom. Government exists in large part to protect its citizens' freedom, and that freedom would not exist unless it included freedom from lawless government action, otherwise known as abuse of power. (322-23) "Government lawyers," therefore, "should not be in the business of looking for pockets of unregulated discretion or loopholes in such regulations as do exist. They should not be advising their political bosses that they are entitled to avoid the impact of legal constraint where it is ambiguous or unclear." (323-24) And he applies this approach even to the realm of international law, arguing that "[g]overnments are bound in this arena, as in any arena, to show themselves devoted to the principle of legality in all their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly." (329)

Waldron implies, however, that there may be exceptions to these conclusions. He writes (323 n.6) that "[t]he Rule of Law is just one of the normative ideals that apply to government action. Others, such as efficiency or even security may sometimes pull in a different direction." If security did present a more pressing claim than the rule of law in a particular situation, presumably the duties of a lawyer asked about the law could similarly shift -- unless it is the job of lawyers always to stand for the law, even if other actors (generals, perhaps) may legitimately choose to disregard the law's demands. Whether Waldron would allow lawyers some freedom of action on these grounds isn't entirely clear; he emphasizes that while lawyers do serve multiple goals, "we pursue justice and the social good through the Rule of Law, not around it or in spite of it." (320)

So: is it inconsistent with the rule of law for a government lawyer to try to limit the legal constraints on the government by employing the tools of legal argument and interpretation to construe those constraints to be as modest as possible? That's the loophole-finding, advantage-taking role Waldron finds quite appropriate for the lawyer representing an individual citizen, and quite inappropriate for the lawyer representing the government. If that role is indeed inappropriate for a government lawyer, then presumably those lawyers can offer the President only such legal arguments and interpretations as support the full implementation of the law as it's written, as well as the full realization of its underlying policy goals.

There is a lot to be said for the proposition that just laws and democratic choices deserve the full support of the government and its lawyers. But not all laws are just, nor are all democratic choices, and not all laws result from untainted democratic processes. What, then, are the obligations of the government lawyer who encounters an unjust or undemocratic law?

To be sure, one person's injustice is another's categorical imperative. Who is to say what is unjust and what isn't? As a general proposition, in legal representation it is the client rather than the lawyer who says what is desirable -- as long as the bounds of the law are not breached. With a lawyer for the President, this general rule seems especially apt, because the President, not the lawyer, was elected to represent the views and needs of the people.

So let us imagine that government lawyers are asked to construe an unjust law, that is, a law viewed by the President as unjust. Just to make this hypothetical a bit more real, let's suppose it's a statute that forbids any "transactions" between government agencies and undocumented aliens. Let's suppose also that the statute could most easily be read to bar, as "transactions," even the provision of emergency medical services to an undocumented alien, but that this reading is not absolutely compelled by the available interpretive materials (such as the text or the statements of the enacting legislators). And suppose that the President (or the Governor of Alabama, since this law is not entirely unlike that state's harsh new law regulating undocumented aliens) believes the law is unjust. So the President asks, in effect, "How can we minimize the application of this law by the use of the tools of legal argument and interpretation?"

It seems to me that in this case narrow interpretation serves justice. As I've mentioned, Waldron distinguishes between the pursuit of justice and the rule of law, on the ground that lawyers "pursue justice and the social good through the Rule of Law, not around it or in spite of it." I am not as comfortable as he seems to be with the idea that the rule of law in and of itself is not partly a matter of justice. Could a society with clear and consistently applied, but deeply unjust, laws be said to enjoy the rule of law? There probably has never been such a place -- deep injustice is likely always accompanied by arbitrariness -- but in principle I'd say that that hypothetical nation (a nation that apartheid South Africa, for instance, aspired to be) was not a country governed by the Rule of Law. What anti-apartheid lawyers used to say was that such a country had rule by law instead.

But whether the pursuit of justice is integral to honoring the rule of law, or whether it is a separate value that lawyers also serve, in the end is not critically important. Either way, in the case I've described, the path to justice (or at least a path to justice) is to seek a reading of the statute that minimizes its reach, by employing the available sources of interpretive guidance to generate a narrow interpretation of its terms -- even though that interpretation isn't the one those materials most easily support. That means that in situations where governments are constrained by unjust laws, they may indeed rightly react by turning to manipulative lawyering as a response. Waldron's concerns about government's duty to the system of law itself may weigh against this course of action and sometimes, maybe even often, may weigh so heavily that this approach, even if it is a path to justice, would be the wrong path to follow. But I don't think this path could always be ruled out.

How can a government come to be "constrained" by unjust laws? Isn't the government itself the lawmaker? Yes, abstractly; but not always, concretely. Congress can pass a law over the President's veto; the President then is obliged to implement it (at least unless it is unconstitutional), but if the President believes the law is unjust, what I've argued is that it could be right for the President and the President's lawyers to use legal interpretation to minimize that injustice. Similarly, a nation may be subject to international law rules whose meaning at first blush would be unjust to that nation and its citizens; and in such situations the nation and its lawyers might be right to use legal maneuvering to avoid this reading of the law.

I want to emphasize that I do not think either the national or international law prohibitions on torture and mistreatment of prisoners are unjust. But suppose the President felt otherwise. A President taking that view could legitimately say that his or her request for aggressive lawyerly interpretation of the torture prohibitions was not a denial of the rule of law, but an effort to seek justice within the constraints of the law.

There is also a more prosaic reason to defend aggressive government lawyering, namely that the legal system makes meaning from argument. Suppose a statute can be read either broadly or narrowly; the underlying policies said to be embodied in the statute favor a broad reading, but the terminology used in the law seems to point to a narrower reading -- one that would constrain government freedom of action less. If government lawyers should never look for "pockets of unregulated discretion," as Waldron maintains, then it might follow that they should not argue for this narrower reading. But the legislature that enacted the law, and the citizens who read it (with the benefit of training in statutory interpretation), might believe that the narrower reading is the right one. If the interpretive arguments favaoring that view aren't pressed, and as a result are ignored by judges or other decisionmakers, then the rule of law may have been injured -- because the methods of the law's interpretation are themselves part of the body of law whose stable and predictable application the rule of law protects. I don't mean to suggest that the government's lawyers must make any and all arguments just because the arguments can be devised, and in fact there are many reasons why that shouldn't be the government's duty (the arguments may actually disserve other goals the government has; other parties may be available to press the points on their own; or other parties may not be available to refute what the government says, in which case only the points the government embraces will get serious consideration by decisionmakers). But I do want to maintain that rule of law values may favor arguing against the extension of legal controls on the government, even though other rule of law concerns may (as Waldron says) favor the extension of such controls.

All of this leads me to say that we cannot take the rule of law, by itself, as a sufficient reason to bar government lawyers from making arguments that seek to expand the government's freedom from legal restrictions. That, however, doesn't mean that limiting the reach of the torture statute was legitimate. It does suggest that the President as client could believe it was legitimate to ask for such an interpretation, and it underlines the importance of examining how lawyers should answer such a request.