My contribution to this symposium seeks to accomplish two things. First, I want to engage in a dialogue with Professors Levinson and Kreimer about the problems of defining torture and the law’s response to torture. My contentions are that, contrary to Professor Levinson’s suggestion, we should not seek to limit the category “torture,” and that, contrary to Professor Kreimer’s argument, law in fact fails to regulate torture. More precisely, I argue that law provides less of a constraint on torture, properly defined, than most people probably assume. Second, I want to use that dialogue as the launching point for a more open-ended exploration of torture and the more general problem of state violence. To that end, the last section of this essay considers with broad strokes some of the possible reasons for law’s failure to regulate torture adequately.
The purpose of this piece is to shed some light on the way the intelligence community operates, to describe how legal rules shape some of its most sensitive work, and to offer a perspective on the way the Central Intelligence Agency (CIA or Agency) fits into the debate about interrogation and torture. The debate is not about, and indeed cannot be about, whether our government should conduct torture. The answer to that question is and must be, by law and standards of human decency, no. As recently as March 2005, CIA Director Porter Goss reiterated the Agency’s position that it is bound by the laws banning torture and that the Agency adheres to those laws. But at a level deeper than the denials and the blanket statements, there is a difficulty that cannot be avoided. That difficulty lies not in the abstract form of the question, but in the real, on-the-ground scenarios that develop where interrogations are taking place. What can an interrogator do? When can she use deception, discomfort, fear, fatigue, punishment, physical contact, and similar tactics?
Lawyers often represent clients in criminal cases when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the prosecution. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally unfair? Indeed, what if the system is rigged so as to prevent the lawyer from zealously representing the client, or if it compromises the lawyer’s undivided loyalty to the client? Should lawyers refuse to participate in such systems, or should they – should we – still do the best we can?