A MODEST MEMORANDUM

OFFICE OF CONVENIENT REASONING
Office of the Principal Deputy Assistant to the Deputy Principal
Washington, D.C.

Re: Application of United States Obligations Under Common Decency to Certain Techniques That May Be Used in the Persuasion of High Value Domestic Persons

You have asked us to address whether certain “enhanced persuasion techniques” employed by the Bureau of Citizen Wellness (BCW) in the cognitive recalibration of high-value domestic persons are consistent with United States obligations under what remains, after careful redaction, of the Bill of Rights. We conclude that use of these techniques, subject to the BCW’s careful screening criteria and its Wellness Safeguards, is consistent with all obligations that we have not yet found a way to disclaim. We are, however, working on those.

SECTION I: BACKGROUND

A. The Precedent

It will be recalled that the Bradbury Memorandum of May 30, 2005, demonstrated with admirable ingenuity that the legality of any technique may be determined not by the experience of the person subjected to it, but by:

• The legal geography of the room in which it occurs;
• The bureaucratic distance between the authorizing official and the screaming;
• The number of physicians present who are not, technically, screaming themselves.

We now propose to extend this framework domestically.

B. The Domestic Context

The BCW has developed a suite of Voluntary Cognitive Recalibration Techniques (VCRTs) designed to assist citizens in aligning their belief systems with nationally beneficial outcomes. These techniques include, but are not limited to:

• Ambient Narrative Saturation: The sustained provision, through multiple channels simultaneously, of an account of a situation that differs from the account the subject would arrive at through independent observation, until the subject’s independent account becomes cognitively inaccessible or feels implausible to them;
• Social Proof Engineering: The creation, through the management of the subject’s social network, of an informational environment in which the subject’s own account of their situation appears idiosyncratic, paranoid, or socially costly to maintain;
• Compliance-Through-Exhaustion: The maintenance of a level of ambient uncertainty and social disruption sufficient to occupy the subject’s cognitive resources with managing their immediate situation, leaving insufficient bandwidth for the higher-order analysis that might produce inconvenient conclusions.

The BCW designates these techniques “voluntary” on the basis that the subject, if asked, would not describe them as occurring. This Office concurs that this is a reasonable operational definition of voluntary.

SECTION II: THE LEGAL ANALYSIS

A. The Jurisdictional Solution

The central challenge of applying enhanced persuasion techniques domestically is that the Constitution applies domestically. This is, from a program design perspective, inconvenient. However, we note the following:

The Constitution applies in locations that are unambiguously within the territorial United States. Several creative interagency arrangements available to the BCW create operational spaces that are, while physically located within the United States, legally ambiguous with respect to which agency bears primary Constitutional compliance responsibility. These include:

• Operations authorized by one agency but conducted by contractors nominally operating under the jurisdiction of a second agency with different Constitutional exposure;
• Operations occurring within facilities that are physically in State A but jurisdictionally administered under the enabling legislation of State B, which has more accommodating cognitive liberty standards;
• Operations conducted by civilian proxy participants who are neither government agents nor formally tasked assets, and who may therefore be conducting, on their own initiative, activities that a government agent would be prohibited from conducting.

The last mechanism is the most elegant. A government agent who instructs a civilian to undertake activity that the government agent could not undertake is potentially subject to conspiracy liability. A government agent who creates the conditions under which a civilian, acting on their own apparent initiative, happens to undertake that activity is, depending on the jurisdiction, potentially subject to nothing at all. This Office acknowledges that “depending on the jurisdiction” is doing considerable work in the preceding sentence, and that the jurisdictions in which it works best are the ones we have had the most success in identifying.

B. The Severity Test

We further address whether the VCRTs described above rise to the level of severity that would trigger constitutional protections if those protections were determined to apply, which they have not yet been determined to do.

We propose a three-part test:

1. The Acknowledgment Test. If the subject cannot demonstrate, in a proceeding that this Office would recognize as appropriate, that the activity occurred, then the activity’s constitutional implications remain, for practical purposes, theoretical. Theoretical constitutional violations require no response from this Office except the one you are currently reading.

2. The Intention Test. The BCW has documented that VCRTs are designed to produce cognitive outcomes that the subject would independently choose if they had full information. On this basis, VCRTs do not override the subject’s will; they complete it. This Office finds this argument creative and is including it here in case it is ever useful, while noting that it is not an argument this Office would use in public.

3. The Benefit-of-the-Doubt Test. In cases where VCRTs produce outcomes that appear, on their face, to harm the subject, we note that harm determinations are complex, long-term trajectories that a BCW analyst — with full situational awareness, program context, and access to documents the subject has never seen — is better positioned to assess than the subject. We recommend that courts defer to BCW findings on this question. We further recommend that courts not be asked this question.

SECTION III: THE QUESTION OF PHYSICIANS

The Bradbury framework’s requirement that physicians be present during enhanced techniques reflects the judgment that the presence of medical professionals constitutes a safeguard sufficient to satisfy legal requirements. We adopt this requirement for VCRTs, with the following adaptation:

The physicians required to be present during VCRT operations are not required to be present in the location where the operation is occurring. They are required to be present somewhere, and available for consultation, and aware that something is happening, and willing to testify that they were consulted, and not required to have said anything discouraging at any consultation they were party to. This is the same requirement as the original, in spirit.

This Office also notes that the relevant question is not whether a physician was present. It is whether a physician who was present did not object. This is a different and more achievable standard, as physicians who are employed by the BCW, supervised by BCW administrators, and paid from BCW funds have a documented tendency not to object.

SECTION IV: CONCLUSIONS

We conclude that:

1. The VCRTs as described are consistent with Constitutional requirements, subject to the jurisdictional architectures described in Section II, the severity tests described in Section II-B, and the physician presence requirements described in Section III.

2. Nothing in this Memorandum should be construed as acknowledging that any program to which it might apply exists. This Memorandum was prepared in response to a hypothetical inquiry.

3. Nothing in this Memorandum should be construed as legal advice. This Memorandum was prepared by the Office of Convenient Reasoning, which is not the Office of Legal Counsel, and which reserves the right to subsequently disavow any positions taken herein if they become inconvenient.

4. The “modest” in the title refers to the scope of our conclusions, not to any expression of humility about the framework. This Office does not do humility. This Office does memos.

T. BEAUMONT WRIXON III
Principal Analyst, Office of Convenient Reasoning
Office of the Principal Deputy Assistant to the Deputy Principal

Reviewed and approved by the Office of the Principal Deputy Assistant to the Deputy Principal’s Deputy, which is a different office. They had no substantive objections.

¹ The original Bradbury Memorandum’s central innovation was the distinction between what a technique does and what a technique is. A technique that produces severe physical and psychological suffering is not, under this framework, “torture” if it is administered by people who have been told it is not torture, in a location where torture has been defined not to occur, pursuant to a legal opinion establishing that the technique does not meet the technical definition of the thing it resembles. This Office considers this framework portable and has ported it.

² The term “cognitive recalibration” is preferred over “manipulation” because manipulation implies that the subject’s cognition was being altered from its natural state, whereas recalibration implies that the subject’s cognition was being corrected toward its optimal state. This is a distinction with policy consequences.

³ This Memorandum was inspired by a pamphlet by Jonathan Swift, which proposed something equally reasonable and was generally misunderstood. This Office does not expect to be misunderstood. This Office’s proposals are sufficiently reasonable that the horror is, for most readers, slower to arrive.

✦ ✦ ✦