rssWhat Does It Mean to ‘Shock the Conscience?’
Thursday, April 16, 2009 at 6:07 pm
- 6 Comments
Assuming for the sake of argument that the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does apply to U.S. conduct outside of U.S. territory, (though as I noted before the Office of Legal Counsel lawyers thought it did NOT), the May 30, 2005 OLC memo signed by Steven Bradbury concluded that the relevant standard for determining when the CIA had crossed the line would be the Fifth Amendment’s prohibition of executive conduct that “shocks the conscience.”
So how do you determine what “shocks the conscience”? Whose conscience applies? Steven Bradbury’s? John Yoo’s? Yours or mine?
Not surprisingly, the memo says that there is no specific test for shocking the conscience, but that the case law is best read to require a determination of whether the conduct “is arbitrary in a constitutional sense” and involves conduct “intended to injure in some way unjustifiable by any government interest,” quoting a 1998 Supreme Court case, County of Sacramento v. Lewis.
So if the executive believes it has an interest in causing the injury, and CIA officers aren’t doing this simply for their own sadistic pleasure, that means it’s okay?
The most brutal torture is almost always undertaken for some purpose — usually to extract information — rather than purely out of sadism. Does that make it legal?
In its memo, the Office of Legal Counsel seems to say that it does:
Given that the CIA interrogation program is carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot ‘be said to shock the contemporary conscience’ when considered in light of “traditional executive behavior” and “contemporary practice.”
I don’t know about you, but the techniques described in these memos — repeated waterboarding (drowning); stress positions; slamming a prisoner’s head repeatedly against a wall by the collar; 180 hours straight of sleep deprivation while on a “calorie-restricted diet” and in shackles; and being locked in a tiny “confinement box” with insects crawling around — that shocks my conscience.
Anyone else?
6 Comments
Comment posted April 16, 2009 @ 6:19 pm
Those things would shock the conscience of anyone who has a conscience. Some don't, you know. (Sociopaths, et al.)
Comment posted April 16, 2009 @ 10:24 pm
Which is why you should leave the lawyering to those with law degrees and high intelligence; the reporting to those with the objectivity so as not to disgrace the journalistic profession; and the matters of war time conscience to those less coddled than he of the “leisureguy” self-appellation.
Comment posted April 17, 2009 @ 7:05 am
Dear oliverwright,
There are no 'war time' consciences, there are only those of craven and timorous character.
You are among those who feel that when they face fear or even the possibility of fear, their own fears are of of a special class. This 'special' fear, allows them to grant themselves a permission that they would accord no 'lesser beings' even in the same circumstances.
These 'lesser beings' who can afford a conscience include their own 'peacetime' selves. That is, their own selves napping in comfy chairs. According to you, those are the people who can afford such trifles as moral certitude.
You, would-be-sir, you do not deserve to call yourself civilized. I have faced fear with dignity. So have many others before us. I shudder to think that you consider yourself capable of deciding 'matters of conscience.' I hope you haven't given yourself that opportunity. You are a monster.
Pingback posted April 17, 2009 @ 9:10 am
[...] Eviatar at the Washington Independent: [T]he May 30, 2005 OLC memo signed by Steven Bradbury concluded that the relevant standard for [...]
Comment posted April 17, 2009 @ 2:05 pm
Dear oliverwright,
There are no 'war time' consciences, there are only those of craven and timorous character.
You are among those who feel that when they face fear or even the possibility of fear, their own fears are of of a special class. This 'special' fear, allows them to grant themselves a permission that they would accord no 'lesser beings' even in the same circumstances.
These 'lesser beings' who can afford a conscience include their own 'peacetime' selves. That is, their own selves napping in comfy chairs. According to you, those are the people who can afford such trifles as moral certitude.
You, would-be-sir, you do not deserve to call yourself civilized. I have faced fear with dignity. So have many others before us. I shudder to think that you consider yourself capable of deciding 'matters of conscience.' I hope you haven't given yourself that opportunity. You are a monster.
Comment posted September 4, 2009 @ 9:26 am
I just love reading this blogs & articles. It is very interesting.
Cheers
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