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What Does It Mean to ‘Shock the Conscience?’

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?

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