In Law and the Political Order last Monday, it was suggested that Lon L. Fuller’s fictional “Case of the Speluncean Explorers” could be rewritten to apply to defense operations in America today. The more I considered it, the more I could connect his case to the recent release of the Senate Select Committee on Intelligence’s Study of the Central Intelligence Agency’s Detention and Interrogation Program. Better known as the Senate Torture Report, this study details the C.I.A.’s “enhanced interrogations” of suspected terrorists in United States’ custody from 2001 to 2008. Their techniques – including but not limited to waterboarding, walling, and depriving detainees of sleep, food, and water – constitute torture according to international protocols. However, the idea of convicting the administration responsible for war crimes is incredibly contentious. Comparing this idea to the speluncean explorers’ trial prompts several questions: If members of the executive and legislative branches were to ever be tried by the Supreme Court for these offenses, who would be the four defendants? What war crimes delineated in the Senate’s report, if any, might they be found guilty of? What treaties, conventions, or statutes might the court cite in its conviction? How would the five justices of Fuller’s trial argue their approaches, and their acquittals or confirmations, if faced with this case?
After some serious deliberation on the subject, I chose the highest-ranking and earliest-informed officials at the time as defendants: President George W. Bush, C.I.A. Director George Tenet, House of Representative’s Intelligence Committee Chairman Porter Goss, and National Security Advisor Condoleezza Rice. All four officially authorized, either explicitly or in acquiesce, the “enhanced interrogation” of terror suspects described in the Senate Study. Analyzing them, their authorizations, and the enhanced interrogations themselves from the precedent perspectives of Justices Truepenny, Foster, Tatting, Keen, and Hardy provides a new, interesting, and exceedingly parallel account of the variety of potential approaches to being a justice and addressing such serious accusations of crimes. In doing so, allow me to take a little license-to-text….
I imagine Justice Truepenny, for instance, citing the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in his argument for fidelity-to-text. As the first treaty to formally define and condemn torture, it “permits of no exceptions” to this case (Fuller 619), and thus, could confidently be considered his statute of choice in favor of conviction. But even more telling of his character as a justice, Truepenny could here, too, extend his sympathies to the administration on trial and advocate for executive clemency on their behalf. This would mean he’d declare the four defendants guilty in the Supreme Court, in order to avoid “impairing either the letter or spirit” of the text of the Convention, but also stand for executive clemency in the context of the “tragic situation” the nation “found itself in” at the time of the treaty violations in question (Fuller 619).
Justice Foster, in contrast, could adapt his anecdotal arguments on the laws of nature and the understanding of self-defense to fit a license-to-text approach to this case. In his definition of the laws of nature as instituted in times when “the coexistence of man becomes impossible,” for one, Foster might find that the September 11 terrorist attacks constituted such a state and thus consider it necessary for the defendants to have drawn “new charters of government appropriate for the situation they found themselves in” – in this case, charters authorizing enhanced interrogation techniques (Fuller 620). And similarly, in his exposition on self-defense, Foster could invoke the argument that these terrorist attacks were acts of war, and that the four defendants’ approval of detaining and interrogating those seemingly responsible constituted self-defense, and can consequently be reconciled with the purpose of the law. Following these two lines of reasoning, and in expected license-to-text fashion, Justice Foster would almost certainly set aside his conviction, effectively acquitting the defendants.
“Torn between” Truepenny-style sympathy for these defendants and unique “abhorrence and disgust” at the explicit details of the Senate Torture Report, rather, Justice Tatting would fall somewhere in the middle of the spectrum of approaches to being a judge expressed thus far (Fuller 626). I expect his testimony, for neither fidelity-to-text nor license, would mostly tackle the logical fallacies in Foster’s, just as it did in “The Case of the Speluncean Explorers.” His recognition of precedent, however, might this time reference Hamdan v. Rumsfeld, the 2006 Supreme Court case that upheld Article 3 of the United Nations Convention Against Torture, and applied it along with the United States Code of Military Justice specifically to the detention of suspected terrorists in Guantanamo Bay. Based on the debates over the Supreme Court’s intentions following their decision, though, he might inquire again about the actions one ought to take when confronted with disputes over the specific purposes of laws. And after considerable cerebration on the subject, Justice Tatting – not intending to issue an acquittal but no more inclined to convict – would likely withdraw from this decision, too, on the basis of being “wholly unable to resolve the doubts” that beset him regarding his interpretations and applications of legal purpose (Fuller, 631).
In response, and in his much more severe manner, Justice Keen might engage with Tatting and again insist upon fidelity-to-text in matters of jurisprudence. In this case, that means reiterating the importance of interpreting laws in accordance with their “plain meanings, without references to … personal desires … or individual conceptions of justice” (Fuller 633), for the purposes of advancing legal precedence and promoting checks and balances between the judicial and legislative branches. But more specifically, it means Justice Keen can account for only the most explicit interpretations of the United Nations Convention Against Torture and the Hamdan v. Rumsfeld Supreme Court decision available in addressing this case, and moreover, must ignore the personal sympathies that Justices Truepenny, Foster, and Tatting espoused in their earlier testimonies. This could prove easier said than done by Keen to some extent, though. Even after expressing his wholehearted support for the Supreme Court strictly adhering to relevant texts and charging the defendants with war crimes, for example, Justice Keen could still almost certainly not deny the four officials emotional appeals for executive clemency. In fact, as in “The Case of the Speluncean Explorers,” Keen’s character would presumably see the suffering of the defendants in this case and petition for presidential pardon once more.
Justice Hardy, on the other hand, could see the defendant’s continued suffering as justification for his license-to-text approach to being a judge and support for his final decision in favor of acquittal. In arguing these, Justice Hardy criticizes Keen for exercising “abstract theory” rather than regarding “human realities” (Fuller 637), then asserts that legal backgrounds and public assessments ought to be cornerstones of judicial interpretation. The context of this particular case, though, is complicated and still somewhat classified, the “human realities” are hard to read and even harder to truly understand, and the public opinion is polarized at best. As a result, Justice Hardy’s defenses of case contexts and public opinion polls would have to underscore efforts to strengthen community accord in order to apply here – and they do. His explanation of the risks of advocating executive clemency in “The Case of the Speluncean Explorers,” for example, intends to foster trust between the Chief Executive, the judicial branch, and the jury, and can be easily adjusted to the circumstances of this case to show support of increasing communication between the judiciary, the legislature, the executive office, and the people they serve. Likewise, his promotion of the public opinion in the speluncean explorers’ trial, which included calls for clarity and concurrence, might be adapted here to call for greater governmental transparency. On the whole, Hardy’s decision to acquit the defendants, based on these arguments, would be entirely appropriate.
Now, imagine rewriting this case to reflect the opinions of the current nine justices of the United States Supreme Court, rather than Fuller’s five fictional judges. When, if ever, might they add the Senate Torture Report to their agenda? Who might they prosecute, and to what extent? How could their approaches to being a justice influence their individual decisions? What about their political ideologies? Or their loyalty (or lack thereof, perhaps) to the administration that appointed them?
With those questions in mind, which justices’ approaches would you support? Or condemn? If posed to executive clemency, would you expect President Obama to pardon the defendants? Would you want him to?
Fuller, Lon L. “The Case of the Speluncean Explorers.” Harvard Law Review volume 62 (1949): pages 616-645.
United States Congress. Senate. Select Committee on Intelligence. Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program. December 3, 2014, 113th Congress, 2nd session.