Monday, April 28, 2008

Outrages Upon Personal Dignity

As first reported yesterday by the NY Times and then widely thereafter, in March the Justice Dep't sent letters to Congress explaining why, in its view, the CIA could engage in so-called enhanced interrogation techniques without running afoul of international and domestic law. Whether a particular method of interrogation amounts to an "outrage[] upon personal dignity" or "humiliating and degrading treatment" in violation of Common Article 3 of the Geneva Conventions regarding treatment of detainees, DOJ said, depends in part on the purpose for which the interrogation is undertaken. According to Deputy Ass't AG Brian A. Benczkowski's letter: "The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.”

There is undoubtedly a certain logic to this line of reasoning. For example, if we were not interested in legal obligations as such, we could agree that it's outrageous, and thus an "outrage upon personal dignity," for a police detective to falsely tell a completely innocent person that a loved one has implicated him in a crime, while such trickery would be permissible (or at least not outrageous) when targeted at a person who the police have good reason to believe is guilty.

But there are two reasons why this logic is just about completely inapposite in the real context of interrogation of war-on-terror detainees. First, the sorts of interrogation techniques in question go well beyond trickery into the realm of physical coercion. Second, this sort of utilitarian sliding scale calculus is pretty clearly ruled out by the plain language of Common Article 3. In pertinent part, it provides
[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

The Justice Dep't reading of this language requires us to assume that it was meant to ban certain acts "at any time and in any place whatsoever," but that the definition of the forbidden acts depends on the purpose for which the acts are undertaken. This reading renders the "at any time and in any place whatsoever" language almost wholly ineffective. Accordingly, the much much more natural reading of Common Article 3 is as an absolute prohibition on a category of acts---including both "torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." There may be some disagreement at the margins over what acts count as covered, but if an act is covered, then it is categorically banned, regardless of the state's alleged justification for engaging in it.

All of this leads to the following question: Where are the textualist critics of the Administration? Even if one thinks on utilitarian grounds that "enhanced" interrogation or even torture is morally justified in certain circumstances, the categorical nature of the legal prohibition is nearly impossible to deny, given the relevant text. Except, of course, that here, as elsewhere, the Bush Justice Department appears capable of the impossible.

Posted by Mike Dorf


Unknown said...

Professor Dorf, I think your textual argument is flawed.

You quoted the Justice Department's position as follows: "Whether a particular method of interrogation amounts to an "outrage[] upon personal dignity" or "humiliating and degrading treatment" in violation of Common Article 3 of the Geneva Conventions regarding treatment of detainees, DOJ said, depends in part on the purpose for which the interrogation is undertaken."

This could be consistent with even a natural reading of the text of common article 3, and here's how.

Follow the text of common article 3 linearly. It states first that the following are prohibited at any time and place. And then it lists as prohibited outrages to human dignity, and humiliating and degrading treatment.

The opening text doesn't mean that the purpose of the treatment of the detainee can't effect the character of the detainee's treatment. In fact, it doesn't tell us anything at all about what kind of treatment is acceptable. It only means that once treatment has been deemed an outrage to dignity, it is categorically prohibited. But the question still remains, what amounts to the categorically prohibited conduct.

The Justice Department has asserted that the purpose of the treatment effects whether it amounts to an assault on human dignity, and is degrading and humiliating. I think this is ludicrous, as certain kinds of conduct are necessarily humiliating and degrading regardless of their purpose. But nothing in the opening text regarding time and place precludes such an argument.

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Tam Ho said...


You are right that DOJ may not be saying that outrages upon personal dignity (OUPD) are sometimes okay under Article 3; rather, they are saying that what constitues an OUPD is a function of the purpose of the act.

This is what Prof. Dorf addresses. He's saying that the notion that the definition of OUPD is a function of an act's purpose cannot be right because it renders superfluous the introductory language, "at any time and in any place whatsoever." He reads this language to be a sort of universal qualifier to what follows it, which is a reasonable reading.

Given what little I know on the issue (which comes just from reading the post), I might argue that the drafters might have had jurisdictional concerns in mind when they drafted the "time / place" prefatory clause, and hence, that phrase merely says that Article 3 applies to countries that have adopted the Geneva Convention no matter in which corner of the Earth or behind which shadows they happen to be operating.

If the drafters wanted to take the view that the definitions of OUPD be purpose-independent, they could have said "for any purpose whatsoever" or even stronger, if they wanted it to have universal/categorical application, they might have used, "under any circumstances whatsoever."

But perhaps the "at any time" clause can be reasonably read as equivalent to "under any circumstances," because one might argue that if jurisdiction were the only concern here, then "in any place" would have been sufficient.

Caleb said...

What about the language "murder of any kind"? Unless there is something in a different legal tradition that requires that language, it seems to me that the word "murder" would include all the divisions into which legal systems divide it. If so, isn't "of any kind" superfluous? While it's not great evidence, the presence of superfluous language in one part of the Convention suggests that language in other parts could be superfluous (SP?) as well.

(As an aside, maybe I read it poorly, but just condemning "murder" would seem to permit judicially sanctioned executions?)

Michael C. Dorf said...

If DOJ is right that, notwithstanding the introductory language, whether an act is an "outrage" depends on purpose, then the same can be true for "torture," which is the DOJ position in the Bybee/Yoo memo that has been just about universally rejected. (To be clear, the issue I'm addressing here is not whether the definition of torture or outrages COULD turn on purpose. Of course it could. The question is whether, as used in the relevant documents, it DOES. And it nearly certainly does not.)

Unknown said...

If DOJ is right that, notwithstanding the introductory language, whether an act is an "outrage" depends on purpose, then the same can be true for "torture," which is the DOJ position in the Bybee/Yoo memo that has been just about universally rejected.

The fact that there is reason not to give some term a functionalist reading hardly seems like persuasive evidence that no term can therefore be read functionally. This is especially true in the present context, where torture is being used simply as an example of the type of "violence to life and person" that the Article prohibits. Presumably, violence to life and person that was equivalent in all respects to torture except for the purpose for which it is inflicted could still reasonable be thought to run afoul of the prohibition.

The problem here is that there is no clearly non-functional language in the prohibition on outrageous and humiliating treatment that would permit a similar move in this context. Instead, you appeal to the introductory language, which makes no reference whatsoever to purpose and gives us zero guidance on how to read the prohibition on outrageous and humiliating treatment non-functionally. This is equally true of your own post. You concede that what is outrageous and humiliating frequently depends on context, but you assert without more that this fact is altered by our legal obligations under the treaty. Unfortunately, neither you nor the treaty provide any reason to believe the "outrageous and humiliating treatment" can be read non-functionally. Your only argument is that torture cannot, and your only reason for saying this is that most people believe that the treaty prohibits torture regardless of purpose. As I argue, however, this is because the treaty not only prohibits torture, but violence to life or person that is qualitatively similar to it.

Unknown said...

I agree that a reasonable definition of torture shouldn't turn on purpose. I'm only taking issue with the effect of the introductory language. I don't see how the introductory language could be rendered superfluous by interpreting an element of purpose into the definition of degrading treatment. It would just mean that in the event such a purpose wasn't present in the treatment, such treatment is prohibited at any time and place, because such treatment is deemed degrading.

If this reading of common article III is in fact contradictory to other arguments made by the administration previously, that seems to be a different issue than what I'm talking about.

Sobek said...

Outrage is a function of purpose.

If the police storm into my office, put me in handcuffs, and put me in a car and drive me to the station -- just for the purpose of public humiliation -- that would clearly be an outrage upon my personal dignity.

If, by contrast, they storm into my office, cuff me, and put me in a cruiser because I just shot up an orphanage, their actions are highly prudent, and not outrageous by any means.

Tam Ho said...

I agree that there is no textual support for the idea that "outrages" turns on purpose, but I am not totally convinced by the argument that the introductory phrase "at any time and in any place" is textual support that it does not.

Nonetheless, I agree that what is torture or what is an outrage upon personal dignity cannot turn on the ultimate purpose of the act for the following reason.

The word "outrage" is being used in Article 3 of the GC in a technical way, meaning something of an objective kind, rather than a subjective nature (i.e., whether one is "outraged" by the conduct). It's probably being used in a sense more akin to another term in the list - "torture." So this is where you went wrong, Sobek - your example above, while "outrageous," is not an outrage upon personal dignity, just as eating a burger and baked potato in front of someone on an atkins diet might be "tortuous", but is not torture.

When understood by an objective standard, i.e., as meaning something like "an extreme or total deprivation of human dignity" one can see by analogy to other crimes that purpose can't come into the determination of whether something is an outrage upon personal dignity.

Consider larceny, the trespassory taking and carrying away of the property of another with intent to permanently deprive. One might take the view that the criminal justice system's response to the larceny of a loaf of bread ought to depend upon whether the theft was for the purpose of feeding a starving child, or for the puropse of throwing a block party. But the determination of whether the act constitutes larceny is independent of which of these end goals it is meant to further (so long as the built-in mens rea is satisfied - although don't confuse that with the "purpose" we are discussing here). The law might account for the "purpose" by excusing the crime in certain situations (hence a necessity excuse, or a self-defense justification for many crimes). However, one wouldn't say that the crime has not occured (unless, of course, the statute were written so as to make the lack of excuse or lack of justification as an element of the crime itself, which is itself an interesting topic).

Likewise, it seems very counterintuitive to say that torture has not occured or that an extreme and total deprivation of human dignity has not occured simply because we needed the ill-gotten information. It seems more in tune with the way we use language, and more significantly, the way criminal law works, to say that we really needed to torture that guy to get information, otherwise, many people were going to die.

Alas, I assume simply by the lack of citation by the President's people that the Geneva Convention contains no justifications or excuses for torture. But the attempt to get around this by arguing that the characterization of the forbidden acts turns on purpose is entirey unconvincing.

One final thought, and perhaps this is an academic exercise, but I assume we are all familiar with the standard distinction between an excuse and a justification, from 1L year criminal law (unless you went to YLS, where criminal law is not a required course; I assume we can expect a new ranking system soon by the NLJ based on this criterion now that the secret's out).

Anyway, question: can torture ever be justified, or merely only excused, at best?

Tam Ho said...

Word in first sentence should be "turn", not "turns." Public education, sorry.

Sobek said...

"So this is where you went wrong, Sobek - your example above, while 'outrageous,' is not an outrage upon personal dignity..."

I don't see why not. A false arrest, parading me in front of my co-workers where the humiliation is likely to produce the most damage -- how can you argue that does not constitute an outrage on my personal dignity? It is a deliberate and groundless attack on my reputation for the purpose of attacking my reputation.

And from what I have seen of Common Article 3 (i.e. what Prof. Dorf has exerpted), nothing therein discusses a distinction between objective and subjective outrageous.

To illustrate my point further, throwing a man in jail is by nature an assault on dignity, which requires freedom of action and movement (which is why I used false arrest in my previous example). Whether throwing a man in jail is an outrage depends on the purpose and circumstances. Thirty years' imprisonment for the crime of jaywalking is an outrage. Thirty years' imprisonment for the crime of premeditated homicide is not outrageous at all.

Textually, then, the argument is that "all times and all places" means precisely what it says, and exigent circumstances are no excuse for committing outrageous acts. But whether or not the act is outrageous or not depends on the time and the place.

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