I’m not going to link you to an endless series of clips from various Administration apparatchiks, toadies, and water carriers, about how waterboarding is not torture if it’s done properly (I’m much too lazy for that), because you’ve already heard it all anyway. Rather, I’m starting from the assumption that we in the U.S. now think waterboarding is not torture if it is done properly. If that is so, then we have made it possible for the legal system to recognize a new tort: negligent torture.
Now why would I suggest such a thing? Well, because there have been a number of court decisions that seem to recognize that if people have been tortured without just cause, they may have a cause of action, but we will never know, because the government has successfully invoked its "State Secrets Privilege."
Let us be clear: the State Secrets Privilege is not recognized in the Constitution, and it was not created by an act of Congress. It is, in fact, the product of the minds of activist judges in 1953. Even then, however, the Supreme Court still maintained "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." U.S. v. Reynolds, 345 U.S. 1, 9-10 (1953). Evidently, our modern courts seem to have overlooked that part of the opinion.
In any case, the cases have been dismissed because the government keeps saying "we can’t tell you why we snatched this guy off the streets of [city] took him to [secret torture facility] and then dumped him in [random foreign country] because to do so would reveal important state secrets which would help the [terrorists, jihadists, liberals, or today’s boogeyman]." It’s worked like a charm.
But what if it didn’t matter why the plaintiff was apprehended or interrogated? If we simply assume that once a person is taken into custody, and that torture is a foreseeable permissible consequence of custody, then our legal system generally responds that the person performing such a lawful act has an obligation to do it with reasonable care. Hence, the concept of negligent torture becomes actionable.
New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. The intentional infliction of mental suffering, ..., the invasion of [the] right of privacy, the denial of [the] right to vote, the conveyance of land to defeat a title, the infliction of prenatal injuries, the alienation of the affections of a parent, ..., to name only a few instances, could not be fitted into any accepted classifications when they first arose, but nevertheless have been held to be torts. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to a remedy.
William Prosser, Torts, § 1, pp. 3-4 (4th ed. 1971).
"The common thread woven into all torts is the idea of unreasonable interference with the interests of others." Id., at p. 6.
There is an old maxim of the law that states "for every wrong, there is a remedy." See e.g. Cal. Civ. Code § 3523 (2007). So far, those who have been tortured don’t have one. While a cause of action for negligence may not have the potential for compensation that one might obtain from a civil rights claim, see e.g. 42 U.S.C. § 1983 et seq. (2006 Supp.), I (and I admit, I’ve generally been a plaintiff’s lawyer) am of the opinion that something is better than nothing.
So what would a cause of action for negligent torture look like? Well let’s see. I will run through the elements of negligence (you law students and lawyers may want to skip over this part if it’s too traumatic – like torture).
There are 4 elements a plaintiff must establish to set forth a prima facie case of negligence: duty, breach of duty, causation, and damages. In the context of negligent torture, I will provide the appropriate factual distictions.
DUTY
There are two recognized general theories of duty that were developed in a case whose facts reads like a scene from an episode of "I Love Lucy." Palsgraf v. Long Is. R.R. Co., 248 N.Y.339 (1928). One view, was that a defendant owes a duty to the "whole world" to conform his conduct to that of a "reasonable person." This is often called the "Andrews view" for its author. The majority view is known as the "Cardozo view," and generally states that the defendant owes a duty to those persons in the "zone of danger," that is, a zone in which you can foresee that injury to someone is possible. Under either theory, I would think that the torturer owes a duty of care to the torturee; clearly, if you are the person tied to the waterboard, you are within the class of persons who could be injured by an improperly performed torture technique.
BREACH
There are two dominant theories as to how one determines whether the defendant has breached his or her duty to the plaintiff. The first is known as the "risk-utility" theory. Here the risk of injury from the defendant’s conduct is weighed against the utility of the conduct. This is a rather fluid standard that works best when the defendant is engaged in risky behavior, and while it may seem to be helpful to the plaintiff, it could also provide an opening to the government to again invoke the state secrets privilege. Waterboarding is risky, and its risks are well known; often, subjects get pneumonia, and death is a well known and foreseeable result. How one assesses the utility could mean the difference between the case that goes forward and the case that’s dismissed. If one focuses on the utility of waterboarding the plaintiff, then we do get perilously close to dealing with whatever it is that the plaintiff said, and why he or she was waterboarded in the first place, and then the government again invokes state secrets privilege. However, if one focuses solely upon the act of waterboarding in general, then state secrets privilege may not matter. Waterboarding may not be of any value at all if one cannot be certain that the information obtained is accurate at all, regardless who the plaintiff is (or was). Expert testimony could establish both risk and utility.
The other formula (and the one more often used) also would eliminate the need to examine state secrets. It is called the "Hand Formula," and is named for the greatest federal judge never to sit on the Supreme Court (even though he was nominated twice), Learned Hand. This formula measures the burden on the defendant if he or she takes greater precautions to avoid injury against the probability of injury multiplied by the likely severity of the injury if it occurs. If the risks are greater than the defendant’s burden, or in algebraic terms, if B is less than PL, then the defendant has breached. United States v. Carroll Towing Co., 159 F.2d 169, 173-174 (2nd Cir. 1947). The characterization of the burden may be a little problematic if it is construed too broadly to the situation, i.e., the government will have to use less expedient techniques (ones that actually work) such as the Stockholm Syndrome, to obtain the information, and the "24" style ticking time-bomb will explode. If, however, the plaintiff does not focus on the external factors, and simply concentrate on the technique of waterboarding, itself, it may be possible to say that the burden is that one has a doctor present, and the technique is stopped when the plaintiff is in obvious physical danger, then we again will not care about why the plaintiff is on the waterboard. In either case the P and L would remain the same: there is always a probability (some say a certainty, as it may be that everyone waterboarded will get pneumonia) of injury, and one can die from waterboarding.
There are two alternatives to establishing breach in the law of negligence: negligence per se, and res ipsa loquitur. Negligence per se requires that plaintiff prove the defendant violated a statute, and the harm that resulted was the type that the statute was designed to remedy. I can’t see this doctrine working as long as the government simply redefines what violates statutes banning torture. Res ipsa loquitur means "the thing speaks for itself." The plaintiff must prove the following: (1) the instrumentality that caused the injury was within the exclusive control of the defendant (I think not a problem when the plaintiff is tied to a board and water is poured into his or her throat); (2) the injury is something that does not occur unless someone was negligent (I think we’ve already covered this territory), and; (3) the plaintiff did not contribute to his or her injury. I can see this last element could problematic; the government may again claim the plaintiff forced it to waterboard him or her because of what he or she did, and of course, we can’t talk about it because, you know, state secrets. On the other hand, if one again focuses solely on the act of waterboarding itself, and struggling is considered a natural reaction to the conduct, then the plaintiff might be able to prevail.
CAUSATION
There are two aspects to causation: actual or factual causation, and proximate or legal causation. Actual causation means what the term states. It is determined by what is called the "but for" test, in that defendant’s action is a necessary precondition to plaintiff’s injury, or that but for what the defendant did, the plaintiff would not be injured. I don’t think the plaintiff would have too much trouble with this element; if he or she wasn’t waterboarded he wouldn’t be injured by it.
Proximate cause is more of a legal policy element that says in a particular case it is simply not foreseeable that the plaintiff could have been injured when the defendant acted. This limitation is not particularly important when there is a direct single factual cause.
DAMAGES
In general, a plaintiff must present evidence of physical injury or property damage to have a legally cognizable claim of negligence. This limitation may operate against the plaintiff who did not suffer any sort of physical alteration from waterboarding. That will likely have to be a factor limiting recovery as long as the government can assert the state secrets privilege.
DEFENSES
There are two recognized defenses to negligence: contributory or comparative negligence, and assumption of risk. As memtioned above, if struggling is considered a natural reaction to waterboarding, then comparative negligence may not apply – the plaintiff was not being careless while strapped to the waterboard.
As to assumption of risk, the plaintiff must voluntarily assume a known risk. If constued broadly, the government may have a defense (although to me, it smaks of the justification used by a wife beater – "you made me do it"). The government would claim that the terrorist took the risk when he or she engaged in terrorist acts that the government would waterboard him or her. If, as the government claims, members of Al-Qaeda actually practiced being waterboarded, I suppose this defense could have merit, and again, the state secrets privilege might then be invoked. If one takes a more personal view, that you simply cannot know what you will do when you are being drowned, then the defense may not apply.
In any case, I think that this could represent an alternative to the civil rights claims that have been so effectively stymied by the government. There are additional hurdles, though. While a civil rights claim may be able to go directly to federal court, a claim based solely on negligence must first be brought as a claim under the Federal Tort Claims Act, and the time lime limit is shorter than for lawsuits. 28 U.S.C. § 2401 (2006 Supp.). I doubt that the time spent in a secret prison would work against the plaintiff who has been held there for years after his or her confinement; I would expect the limitations period to be tolled.
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So, will an idea like this work? One can never know until one tries. The Supreme Court said that "separate but equal" was an acceptable way of allocating public facilities in this country up until the time the Court said that it wasn't.
I tend to think that this approach to dealing with the subject of torture as a compensable injury attributable to a want of due care would appeal to conservatives. Up to now, even their cold economic analyses do not seem to provide them with the comfort they seek:
Accurate balancing of values requires courts to pay serious attention to risks rather than always insisting on certainty. It would be a mistake to think that a particular measure should be rejected because we do not know whether another terrorist attack in the United States will occur unless that measure is taken and so we cannot be certain that it will actually increase safety. Most safety measures are aimed at reducing risks rather than eliminating certainties, but that doesn't make the measures unwarranted. The fact that one cannot know whether interrogating a particular terrorist valueless. This point is obscured when there is a certain harm on one side of the balance and an uncertain benefit on the other. A terrorist subjected to torture incurs a harm with certainty. But that the torture will yield a benefit for national security is only a probability when the torture begins. The torture may be innefective either because the person tortured has no useful information to impart or because he is able to withstand the torture; in either case, moreover, he may send his interrogators on a wild-goose chase by lying.
Richard Posner, Economic Analysis of Law, 686 (Aspen 2007).
All that dithering can be eliminated if the analysis focuses on the moment, and not the larger situation, and moves the conservative position into much more comfortable territory:
[T]he expected accident costs and accident prevention costs must be compared at the margin, by measuring the costs and benefits of small increments in safety and stopping investing in more safety where another dollar spent would yield another dollar in added safety. Fortunately, the common law method facilitates a marginal approach, simply because it will usally be difficult for courts to get information on other than small changes in the safety preccautions taken by the injurer.
Id. at 168 (emphasis added).
I don't really think that Judge Posner had the State Secrets Privilege in mind when he mentioned the difficulty the courts have in getting information, but it seems to me that it fits with the analysis quite well.
In any case, I think that there is an opportunity for plaintiffs to obtain relief from government torture in this new environment where up is down and truth is lies.