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"Charges Seen as Unlikely for Lawyers Over Interrogations":
The New York Times apparently has some sources who have summarized the OPR draft report on the interrogation memos.
Just an Observer:
5.5.2009 5:50pm
melancton smith:
This is ridiculous. If it was illegal, punish those that ordered it not some lawyers that erroneously said it was legal.
5.5.2009 5:52pm
Just an Observer:
The Washington Post link above seems to be bad. Sorry. Try this one.
5.5.2009 5:56pm
Houston Lawyer:
There are numerous defense lawyers out there just salivating for a show trial. I think a game of who knew what was being done back in 2002 and who objected to it then would be fun.
5.5.2009 6:01pm
rosetta's stones:
I'm with you, HL. They should book the biggest meeting room on Capitol Hill, invite all the biggest names, swear in everybody, and have some fun.

Sweet baby Jesus and the orphans, is there anything better than a bare-knuckles brawl in Washington?!

And we might actually learn something, and wind up with some accountability assigned.
5.5.2009 6:16pm
Uh_Clem (mail):
If it was illegal, punish those that ordered it not some lawyers that erroneously said it was legal.

The relevant question is whether the lawyers opinion crossed the line from being "wrong" to being "unethical". If it did, it's fair to punish the lawyers too.

It's one thing to be wrong (or to have a differing opinion) and quite another to deliberately give legal advice that one knows is incorrect.
5.5.2009 6:20pm
Just an Observer:
Uh_Clem: It's one thing to be wrong (or to have a differing opinion) and quite another to deliberately give legal advice that one knows is incorrect.

The way you state that, which implies willfullness, I think there would be cause for a criminal investigation for conspiracy, not just an ethics proceeding.

However, there almost certainly is no such smoking gun in evidence, because the press reports suggest only ethics allegations.
5.5.2009 6:30pm
Mike& (mail):
If it was illegal, punish those that ordered it not some lawyers that erroneously said it was legal.

So a lawyer who advises a drug cartel on how to launder money shouldn't be prosecuted or disbarred?
5.5.2009 6:43pm
common sense (www):
There is a difference between advising how to do something illegal without getting caught, and telling a client whether an activity is legal or illegal. The former is obviously wrong, while the later requires further inquiry.
5.5.2009 7:07pm
Just an Observer:
So a lawyer who advises a drug cartel on how to launder money shouldn't be prosecuted or disbarred?

The drug lawyer does not even enjoy the privilege of having his advice -- governing criminal provisions directed specifically at government actors -- elevated to the status of controlling law within the executive branch. And the OLC opinion is unlikely to be reviewed by a court.

So because the head of OLC is invested with such public trust, it is even more critical that his professional and ethical performance be sterling.
5.5.2009 7:10pm
James Feldman (mail):
Prof. Kerr:

You leave out a rather important part of the article:

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.



So, while the OPR suggests their behavior doesn't rise to the level of criminal, they consider it to be unethical, possibly to the point where they should be disbarred.
5.5.2009 7:14pm
Mike& (mail):
There is a difference between advising how to do something illegal without getting caught, and telling a client whether an activity is legal or illegal.

It's like this. I'll channel John Yoo and Jay Bybee. I'll imagine I'm advising a drug dealer. I tell ths drug dealer client:

"If you make cash deposits over $10,000, the bank is going to report this to the IRS. But it's not illegal to make cash deposits under $10,000. Yes, sir. Cash deposits under $10,000 are totally legal." That's my advice.

Hey, I just told him the law. Technically, I did tell him the law.

Oh, you mean I omitted that it is illegal to make cash deposits under $10,000 if my intent is to avoid having the bank report those? And that what I advised the client to do is actually illegal? That's called structuring?

Hey, man, my bad. I just got the law wrong, man. You don't send people to prison for making a mistake of the law, ya know?
5.5.2009 7:16pm
MarkField (mail):

This is ridiculous. If it was illegal, punish those that ordered it not some lawyers that erroneously said it was legal.


It's pretty hard to go after those who ordered torture without including the lawyers. Those who ordered it rely on the legal opinions as a defense.
5.5.2009 7:21pm
Jim Rhoads (mail):
For those wanting prosecution here, is it your position that no reasonable lawyer in good faith could have reached the conclusions expressed in the Yoo/Bybee memos?
5.5.2009 7:39pm
Benjamin Davis (mail):
This approach is another Washington dodge. We are closer to criminal prosecution once the report is released along with the lawyers special pleading for themselves. Disbarment or discipline was not on the table before - state bars said they were waiting for the OPR report. Now, apparently it is.
Best,
Ben
5.5.2009 8:00pm
interjection:
For those wanting prosecution here, is it your position that no reasonable lawyer in good faith could have reached the conclusions expressed in the Yoo/Bybee memos?


Before responding to that question, I'd hope that people familiarize themselves with this memorandum by Alberto J. Mora, the former general counsel of the United States Navy.

This memo is reported in a 2006 article by Jane Mayer:
The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that Mora’s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.
5.5.2009 8:24pm
PC:
For those wanting prosecution here, is it your position that no reasonable lawyer in good faith could have reached the conclusions expressed in the Yoo/Bybee memos?

I can't speak for anyone that wants prosecutions, but I would like investigations and I don't think a reasonable lawyer could have reached the conclusions expressed in the Yoo/Bybee memos in good faith. If those decisions were reached in good faith they were done so in the face of incredible incompetence.

Criminal or inept? The OPR says the latter. One author is a professor and another is a federal judge. Hmm.
5.5.2009 8:25pm
Just an Observer:
Criminal or inept? The OPR says the latter. One author is a professor and another is a federal judge. Hmm.

This does stretch the persuasive appeal of Hanlon's Razor.
5.5.2009 8:33pm
Jim Rhoads (mail):
The memos are now available here on the internet, and are more than 100 pages of single spaced, footnoted legal prose.

I would be interested in seeing examples of excerpts that PD and Interjection deem so egregiously wrong to make the authors subject to prosecution.
5.5.2009 8:37pm
Jim Rhoads (mail):
PC, not PD
5.5.2009 8:38pm
EH (mail):
Jim Rhoads: From my understanding, it's at least as much what isn't in the memos as that which can be excerpted.
5.5.2009 8:39pm
Jim Rhoads (mail):
Well, then, what isn't in the memos that you think there should be and what subjects should have been addressed that weren't? Please show your work using the actual memos as written, not the various commentaries on them.
5.5.2009 8:55pm
PC:
I would be interested in seeing examples of excerpts that PD and Interjection deem so egregiously wrong to make the authors subject to prosecution.

Like EH pointed out it's not what's in the memos so much, it's what was left out. Off the top of my head: Youngstown (controlling); Parker et al.; Fisher v. State; and White v. State.
5.5.2009 8:56pm
Benjamin Davis (mail):

For those wanting prosecution here, is it your position that no reasonable lawyer in good faith could have reached the conclusions expressed in the Yoo/Bybee memos?


My position is that these memos were operational documents to permit torture. The recent Bybee memo should be read with the previously released Yoo/Bybee memo that was around for a number of years.

The fact patterns on which the memos were supposed to be prepared were carefully prepared "facts" that CIA gave in order to provide facts to get the lawyer to provide the legal analysis that was sought to do torture. The false narrative of facts is the first part. The second part is the legal analysis - the underlying vision of what the law would permit that Yoo/Bybee wrote and Bybee incorporated in the second 2002 memo is made up from thin air as I described in a piece at Jurist in April 2008. It is here at .
Best,
Ben
5.5.2009 8:56pm
Jim Rhoads (mail):
Your link didn't work, Ben.
5.5.2009 9:00pm
Danny (mail):
Fine. If a country is unwilling to apply its own laws against torture, the UN Convention against Torture that the US signed and pioneered provides for extradition and international prosecution. So the US can be forced to cough up these scumbags like Serbia had to give up Milosevic. Serves us right.
5.5.2009 9:04pm
Constantin:
Good. Disbar them.

And every single attorney working for Barack--let's go back to the Clinton Admin as well--is on notice as of today that they'll have the same proceedings brought against them the first week of the next GOP administration. For whatever--Sudan bombings, not nabbing Bin Laden in '96, Pakistani civilian deaths in January, doesn't really matter.

If we're going to do this, let's do it.
5.5.2009 9:05pm
Just an Observer:
Constantin,

Given the fact that the OPR investigation was begun and substantially completed during the Bush administration, your attempt to paint it as partisan does not ring true.
5.5.2009 9:13pm
Danny (mail):
The Yoo memo says it very clearly: anything that doesn't cause organ failure or death is not torture. So rape is fair game. Rape doesn't even leave a mark. So let's just start raping detainees as part of our interrogation techniques. Come on, ticking time bomb guys. Are you patriots or pansies? This is America, we torture our way to freedom.
5.5.2009 9:13pm
PC:
Constantin, if you think this is a partisan issue I can sort of understand your position. A full investigation of the events that led up to the institutionalization of torture goes back farther than the previous administration. It goes back to the Clinton administration and at least to the Reagan administration. I'm fine with investigations into actions that break US law and treaties we are signatories to. Are you?
5.5.2009 9:13pm
Anderson (mail):
Is it just me, or after numerous threads here, plus god knows how much else on the internet, illustrating the defects in the memos ...

... is anyone else a little tired of commenters who swagger up and say, "so, pardner, what's troubling your pretty little mind about these here memos?"

Google, people. Bookmark it. Use it.
5.5.2009 9:17pm
Jim Rhoads (mail):
The Bybee and the Yoo Memos say nothing of the sort, Danny. Nor do they say or imply rape is fair game.

I challenge you to come up with quotes instead of your characterizations.
5.5.2009 9:17pm
Danny (mail):
"Yoo came up with one of the most bizarre, illogical and specious arguments in the history of law. He dug up a federal statute that had absolutely nothing to do with the issue he was examining, seized upon a passing reference in that statute to "severe pain" that was not and could not possibly be interpreted to be a definition of that state, and then asserted with a straight face that this reference supported a radical redefinition of "severe pain." To compound this, he then lied about what the statute actually said.

In short, he simply made up a torture-friendly definition of "severe pain," and then found a way to justify it.

The statute Yoo cited, 42 U.S.C. 1395, regulates insurance benefits under the "Medicare and Choice" plan. It defines an emergency medical condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layman" could reasonably expect that without immediate medical treatment, the individual displaying those symptoms would be at serious risk of losing their health, suffering serious impairment to bodily functions, or suffering serious dysfunction of any bodily organ or part. From this bureaucratic definition of "emergency medical condition," Yoo magically derived a new, torture-friendly definition of "severe pain."

"Although these statutes address a substantially different subject from section 2340," Yoo blandly notes in a world-class understatement, "they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level — the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.""
short description

Rape is absolutely fair game in the Yoo interrogation world.

108 people have died violently in US custody
5.5.2009 9:32pm
Jay:
Mike&--In your hypo, the lawyer isn't even attempting to justify the underlying criminal behavior (drug dealing). I don't see how that's comparable to the situation here, where under the lawyer's proferred interpretation, nothing illegal at all is even happening. You disagree with that, obviously, but it's not the same as saying "I know you're trying to hide drug money; here's how."
5.5.2009 9:34pm
PC:
Jim Rhoads, did you read the August 2002 memo?

A few excerpts:

"We further conclude that certain acts may be cruel, inhuman, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture."

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, or even death."

It goes on from there, but rape is in. If the OLC in 2002 had explicitly authorized rape (versus the implicit authorization) I'm sure we'd have people defending it today. Ask Khalid el-Masri how he feels about being sodomized.
5.5.2009 9:44pm
Bruce Hayden (mail):
As I pointed out before, the problem with demanding that Youngstown be discussed in the memos is that you assume that it would affect the outcome. But my guess is that their interpretation of that case is like mine, that in this situation the Administration was operating where the President's Article II power was at its highest, and not, as in that cited case, where it was where Congress' Article I power was stronger.

This gets into one of the places in law school that drove me crazy - you would get points for mentioning barely relevant cases just to mention them and point at their minimal relevance. But then, in real life, doing that is mostly likely seen as just wasting everyone's time and money. I am sure that if they had wanted to, they could have found a way to bring in Marbury v. Madison, while they were at it. But it wouldn't have affected their conclusion, so why bother?
5.5.2009 9:55pm
Just an Observer:
MarkField: It's pretty hard to go after those who ordered torture without including the lawyers. Those who ordered it rely on the legal opinions as a defense.

The corollary is that it would be pretty hard to investigate the lawyers criminally without investigating those who gave the orders. I can't think of a theoretical charge against any of the OLC players that would not involve conspiracy.

And conspirators, if they exist, seldom admit guilt and turn themselves in. Nor is there typically complete evidence available at the outset of a conspiracy investigation, as you have pointed out aptly yourself. That's one reason federal prosecutors have grand juries.

OPR, I believe, does have authority to refer a matter for prosecution. But that office does not conduct criminal investigations itself.

I do wonder what methods of investigation OPR has available to it, especially when some of the subjects no longer work for the Justice Department. The press reports mention paper trails and email searches. But I don't know how OPR investigators go about interviewing people -- who, under oath or not, etc.

We know from the public record, for example, that the genesis of the memos included discussion at meetings of the so-called "war council" that included Gonzales, Addington, Flanigan and Yoo. We don't know is what was said during such meetings. I, for one, don't even know what tools OPR has to find out.
5.5.2009 9:55pm
Bruce Hayden (mail):
What the OPR, etc. seem to forget is that disbarment can easily be turned into a court-like proceeding. Remember, such would potentially deprive these attorneys of their livelihoods. And, so, they would likely be able to call witnesses, cross-examine their accusers, etc. And that would turn them into show trials.

Besides, I think it naive to think that this would not be a gauntlet thrown down for future Administrations. How about Jamie S. Gorelick's "wall"? It arguably killed 3,000+ Americans on 9/11. Was that good legal advice? What about the Chrysler reorganization? D.C. Congressional representation? I would suggest that an unbiased adjudicator would find at least the later opinion more suspect than the "torture" opinions being condemned here. There, against the 2nd opinion, you have 220 years of history, Federalist Papers, Congressional testimony, and numerous laws and judicial opinions against the position that it was legal. And these are only 100 or so days into the Obama Administration.
5.5.2009 10:05pm
Danny (mail):
Waterboarding is not torture, rape is not torture, pulling out the fingernails is not torture, electric shocks to the genitals are not torture. None of these causes organ failure, death or loss of a bodily function. Maybe there is no such thing as torture at all, maybe it was just invented by left-wing loonies who blame America first.

Come on guys, rape them all, pull out their fingernails. Maybe they will finally tell us about the Saddam Hussein - Al Qaeda link. This is totally new enemy. Why do you want to coddle Muslims who hate our freedoms? I looked into their eyes and saw they were guilty, that's good enough.
5.5.2009 10:07pm
Anderson (mail):
As I pointed out before, the problem with demanding that Youngstown be discussed in the memos is that you assume that it would affect the outcome.

No. N-o. Nein. Nyet. Non.

The PROBLEM with omitting Youngstown is that you fail to advise your client of a legal framework that (1) is very likely to be applied by the courts to your own conduct, and (2) is not obviously favorable to your own "outcome."

A legal memo is not just about the *outcome*; it is about telling your client what is *likely* and what a court *might* do.

As previously discussed here and here ... just from y.t. ... in just one thread.

People risked prison on the basis of Yoo/Bybee's memos. They deserved the best legal advice that Yoo and Bybee could give. They got no such thing.
5.5.2009 10:09pm
Anderson (mail):
Remember, such would potentially deprive these attorneys of their livelihoods.

Cry me a river.

(Leaving aside that Bybee or Yoo would probably enjoy a profitable career as paid flacks for some "conservative" think tank, writing books about how their victimization illustrates the essential fascism of the American left.)

... As for Gorelick, I haven't seen the contention that she made that argument in bad faith. Link, please? I am interested in learning more.
5.5.2009 10:13pm
Benjamin Davis (mail):
Here is an effort to put the link in again The Yoo Torture Memo: Break the Silence of the Lambs to my comment above.

In preview it worked this time.

Best,
Ben
5.5.2009 10:20pm
PC:
The PROBLEM with omitting Youngstown is that you fail to advise your client of a legal framework that (1) is very likely to be applied by the courts to your own conduct, and (2) is not obviously favorable to your own "outcome."

Is that the whole distinguishing cases thing? Maybe that's just some sort of law school hand waving that a department like the OLC never has to deal with. Law is complex, we certainly can't expect government employees to know how to deal with it.
5.5.2009 10:30pm
Anderson (mail):
PC, that was pitch-perfect.
5.5.2009 10:33pm
Constantin:
Constantin, if you think this is a partisan issue I can sort of understand your position. A full investigation of the events that led up to the institutionalization of torture goes back farther than the previous administration. It goes back to the Clinton administration and at least to the Reagan administration. I'm fine with investigations into actions that break US law and treaties we are signatories to. Are you?

If they're going to be undertaken, this is the only valid approach. Go back to Truman and the bomb, FDR and the Japanese prison camps, Lincoln and Sherman's march, Washington hanging deserters, etc. To just go after Bush 43 smacks of the kind of partisan smallness we all know is beneath President Obama.

I am absolutely serious. If it's the corrosion of American values we're after, let's go all the way back to these values' establishment. Consider symbolically impeaching these guys, and look into drawing up some charges for Obama (and all lawyers advising him) for operating Gitmo for three months. After all, if it's wrong for a day, it's wrong.
5.5.2009 10:38pm
Anderson (mail):
Re: Truman and the bomb, Daniel Larison has some thoughts.

What Truman’s posthumous rehabilitation should tell us is that half-truths and falsehoods, if repeated often enough, can become widely accepted, and that virtually no American political leader, no matter how many blunders he made and no matter what criminal acts he ordered, is beyond redemption at the hands of later sympathetic people who find that leader’s decisions to be useful precedents for their own preferred course of action. The “judgment of history” has, for the time being, ruled in favor of Truman, and therefore challenging this judgment is something to be mocked.
5.5.2009 10:42pm
jukeboxgrad (mail):
rhoads:

I would be interested in seeing examples of excerpts that PD and Interjection deem so egregiously wrong to make the authors subject to prosecution.


Here's an example. Notice what Bybee says about sleep deprivation (paraphrase): 'it's done at SERE for 48 hours without harm (allegedly); therefore your plan to do it for 11 days is fine.' There is no reasoning or evidence presented to explain why the numbers 48 and 264 should be treated as indistinguishable.

That looks to me like quite a leap. If 264 is OK, why not 2640? What does it look like to you?

And as for what's omitted, the article Orin cited gives a nice example:

…in approving waterboarding … the Justice Department lawyers did not cite cases in which the United States government had prosecuted American law enforcement officials and Japanese interrogators in World War II for using the procedure.


How is it possible to present a good-faith analysis of waterboarding without mentioning that there is a history of US courts treating waterboarding as a form of torture?

And why would they leave that out? The article gives us a clue: that instead of the memos being "the lawyers’ independent judgments of the limits of the federal anti-torture statute," they were instead "skewed deliberately to justify what the C.I.A. proposed."

Kmiec also mentions this idea: the possibility that the memos were "crafted in order to support preexisting policies and acts." Kmiec made the same point elsewhere:

the look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office


Recall that Kmiec "himself was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush." So his statements should carry some weight.

And speaking of credible voices, 'interjection' mentioned Alberto Mora. Here's a little more about him. He is "a once-staunch political conservative whom President George W. Bush appointed as general counsel of the U.S. Navy in 2001." He said some interesting things about the Bush torture policy:

I never met a senior military officer that didn’t object to these policies. They caused the senior military to hold the Bush administration in contempt. … Torture is antithetical to our values, the rule of law and our national security interests.


And if we don't clean up our mess, our children will hold us "in contempt."

rhoads:

The Bybee and the Yoo Memos say nothing of the sort, Danny. Nor do they say or imply rape is fair game


If waterboarding is OK, then why not rape? Please explain how one can read the torture memos and conclude that they implicitly forbid rape. On the contrary. As PC pointed out. And if I apply electricity to your genitals, is that torture? Please show where these memos implicitly forbid that technique. On the contrary. They implicitly allow it. After all, if there's no lasting physical harm, there's no problem, right?

==============
hayden:

the problem with demanding that Youngstown be discussed in the memos


Please let us know if you really have no problem with the memos completely omitting any mention of the fact that there is a history of US courts treating waterboarding as a form of torture.

==============
constantin:

And every single attorney working for Barack--let's go back to the Clinton Admin as well--is on notice as of today that they'll have the same proceedings brought against them the first week of the next GOP administration.


Threats like this mean nothing. Everyone knows that if/when the GOP takes power again, it will do everything it can to "have the same proceedings," regardless of how Obama handles the torture issue. The only people who don't know that are suffering amnesia, and have forgotten the fuss the GOP made about a blowjob. Or have forgotten the hearings that were held over the Marc Rich pardon. Bring "proceedings" against Democrats is high on the list of what the GOP likes to do. With certain people, appeasement gets you nowhere.

==============
anderson:

after numerous threads here


Links to 13 torture threads including about 3,000 comments can be found here.

==============
rosetta:

They should book the biggest meeting room on Capitol Hill, invite all the biggest names, swear in everybody, and have some fun.


Good idea. I especially look forward to CIA explaining what they did in 9/02, at a briefing they held for certain Congressional leaders. CIA said they might use waterboarding in the future, while neglecting to mention that they had already started using it, including 83 times in the prior month.

I also look forward to Mike McConnell explaining why he told us that the waterboard was used only three times. Now we know that claim was false.

Yes, I look forward to the "fun."

==============
danny:

Come on guys, rape them all, pull out their fingernails. Maybe they will finally tell us about the Saddam Hussein - Al Qaeda link.


Kmiec mentions this issue (although he stops short of treating it as a proven fact): "within the administration the Iraq WMD claim was coming under serious challenge and the opinion was needed to help the President obtain coerced statements that would establish a link between Saddam and Al Qaeda." In other words, there is reason to believe that the purpose of the torture was not to prevent the next attack. It was to produce false confessions that would help Bush sell the war.

==============
pc:

Law is complex, we certainly can't expect government employees to know how to deal with it.


The defendants might present the following defense: 'we thought it was good enough for government work.'
5.5.2009 10:42pm
MarkField (mail):

For those wanting prosecution here, is it your position that no reasonable lawyer in good faith could have reached the conclusions expressed in the Yoo/Bybee memos?


It's my position that the facts as currently known warrant investigation into the good faith of the memo writers. Given the state of the evidence as currently known, I'd find that they were written in bad faith, but the current evidence might not be all there is. Other evidence may, of course, be exculpatory or ... well, not.


The corollary is that it would be pretty hard to investigate the lawyers criminally without investigating those who gave the orders. I can't think of a theoretical charge against any of the OLC players that would not involve conspiracy.


Agreed. Most likely, someone higher up coordinated this process. Proving who might be very difficult, of course, for the reason you noted.
5.5.2009 10:42pm
MarkField (mail):

If they're going to be undertaken, this is the only valid approach. Go back to Truman and the bomb, FDR and the Japanese prison camps, Lincoln and Sherman's march, Washington hanging deserters, etc. To just go after Bush 43 smacks of the kind of partisan smallness we all know is beneath President Obama.


I can't wait to hear bin Laden's defense at his trial: "Your honor, prosecuting me is the kind of partisan smallness which is beneath President Obama. Unless and until Martin Bormann, Joseph Stalin, Mao Tse-Tung and every other mass murderer in history is brought to justice, it would be manifestly unfair to convict me."
5.5.2009 10:47pm
Anderson (mail):
Oy, Jukebox, seeing all those links together makes me cry at the waste of billable hours.

I see where I tried explaining "how to write a client memo" to Bruce Hayden previously. I'm a poor explainer, evidently.

no reasonable lawyer in good faith

James Comey had the classic line on that subject (apropos of the surveillance issue):

“The analysis is flawed, in fact facially flawed,” Comey said. “No lawyer reading that could reasonably rely on it.”

Gonzales said nothing. Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful.

“Well, I’m a lawyer and I did,” Addington said, glaring at Comey.

“No good lawyer,” Comey said.


It would be worth building a time machine just to go back into the past and see Addington's face right then.
5.5.2009 10:49pm
Danny (mail):
Constantin:
Torture is always a crime. Holding people forever with no accusation or trial is illegal. If the Obama administration continues these policies or refuses to investigate war crimes accusations, then they are wrong, too. Obama is already fading fast on principle IMO. Let's see if Holder has the guts to say that no one is above the law, or whether we will continue to be an international legal laughing stock
5.5.2009 10:51pm
Constantin:
Constantin:
Torture is always a crime. Holding people forever with no accusation or trial is illegal. If the Obama administration continues these policies or refuses to investigate war crimes accusations, then they are wrong, too. Obama is already fading fast on principle IMO. Let's see if Holder has the guts to say that no one is above the law, or whether we will continue to be an international legal laughing stock.


This is the very premise of my post. If the government is going to look backward, it's not just to look back only so far. That some of the alleged perpetrators are dead should not matter. The government frequently looks back to the actions of the deceased in order to grant awards and commendations. It wouldn't be novel, then, to go back and start with the first administration to determine what was legit and what wasn't. I wasn't kidding; if torture (and misc.) is always wrong, then always means always.

And that includes Obama and Gitmo, too. I know he said he's going to close the place, but it's not closed yet. He's held these guys, according to the narrative, with no just cause for over 100 days. How's that fit with intl law?

MarkField, I get it. John Yoo is no better than bin Laden. Fair enough.
5.5.2009 11:02pm
MarkField (mail):

MarkField, I get it. John Yoo is no better than bin Laden. Fair enough.


No, the point is that your reasoning is no better than John Yoo's.
5.5.2009 11:08pm
Just an Observer:
Oy, Jukebox, seeing all those links together makes me cry at the waste of billable hours.

Thanks for the useful resource.

To that syllabus one should add The Anti-Torture Memos at Balkinzation, with particular focus on the posts of Marty Lederman. Of course, he has been unable to blog lately due to his position at OLC.
5.5.2009 11:09pm
PC:
If they're going to be undertaken, this is the only valid approach. Go back to Truman and the bomb, FDR and the Japanese prison camps, Lincoln and Sherman's march, Washington hanging deserters, etc. To just go after Bush 43 smacks of the kind of partisan smallness we all know is beneath President Obama.

I'm not suggesting that President Obama should go after anyone. I do think there should be an investigation into how we instituted a system a torture. To your specific examples: I don't know how Truman applies; FDR was vindicated in a (poor, IMHO) SCOTUS decision; Lincoln wasn't bound Geneva or any of these other treaties we are party to, along with federal law; Washington wasn't even a president at that time (I could be off in my history, but the constitution hadn't been ratified (or even drafted) in the time period you are referring to), but even so the execution of deserters isn't a violation of law.

I am absolutely serious. If it's the corrosion of American values we're after, let's go all the way back to these values' establishment. Consider symbolically impeaching these guys, and look into drawing up some charges for Obama (and all lawyers advising him) for operating Gitmo for three months. After all, if it's wrong for a day, it's wrong.

This isn't some existential debate about American values. There are policies that were enacted by people within the executive branch of government that may have violated the law. If you believe that we are a nation of laws, I'm not sure why you are against an investigation.

I agree that the seeds for these potential abuses may not have started under the previous administration. That's why I'm for a full investigation into how our torture policies came about. I just don't understand why you would be against an investigation if you believe in the rule of law.
5.5.2009 11:10pm
Constantin:
And, let me close for the evening by confirming that everyone here in favor of criminal proceedings against Yoo and Bybee, at least, will support similar action against Nancy Pelosi and Jay Rockefeller (and any GOP legislators similarly situated). Surely these elected officials, who actually had the power of oversight or de-funding of the activities in question, merit more accountability than attorneys who merely advised in a nonbinding fashion on those activities' propriety.

This isn't a gotcha, as I'm well aware that for some here, it's not a partisan issue. I respect that.
5.5.2009 11:10pm
Constantin:
No, the point is that your reasoning is no better than John Yoo's.

I hold you in similar regard. And think of you, in contrast to some on this thread I disagree with vehemently but respect, as nothing but a partisan hack looking to even the score for two elections you think the wrong guy won.

So I guess we're somewhere like even.
5.5.2009 11:13pm
Anderson (mail):
Of course, he has been unable to blog lately due to his position at OLC.

Oh, come now. I see right through this "Constantin" moniker.

Sounds like it's a frustrating job at OLC.
5.5.2009 11:19pm
PC:
Sounds like it's a frustrating job at OLC.

:spit:

You owe me a new monitor.
5.5.2009 11:28pm
RPT (mail):
"BH:

How about Jamie S. Gorelick's "wall"?"

Partisan false meme yesterday, at the 9.11 Commission, today and in the future. And, by the way, there was no literal wall in Crawford when GWB read the 8.01 PDB. But thwere was a figurative wall of at least criminal neglect, and the families of the 3,000, and many more are still paying for it. Put more directly, your guy was on the watch when it happened. Don't blame some faraway lawyer.
5.5.2009 11:29pm
MarkField (mail):

And, let me close for the evening by confirming that everyone here in favor of criminal proceedings against Yoo and Bybee, at least, will support similar action against Nancy Pelosi and Jay Rockefeller (and any GOP legislators similarly situated).


I believe everyone on this thread has previously expressed approval of exposing everything and everyone involved with the torture policy, including specifically Rockefeller and Pelosi.
5.5.2009 11:43pm
Volokh Groupie:
Congrats to Danny, keeping us safe at night, battling those dangerous strawmen.
5.5.2009 11:47pm
jukeboxgrad (mail):
constantin:

confirming that everyone here in favor of criminal proceedings against Yoo and Bybee, at least, will support similar action against Nancy Pelosi and Jay Rockefeller


Asked and answered. And answered again. And answered again. And answered again. And answered again.

Since you're asking for confirmation of what's already been confirmed, I assume you'll be continuing to ask, at regular intervals. And I guess it will be wise to ignore the question, since you seem to be ignoring the prior answers.

I also recall you said this:

Pelosi and Rockefeller were fully aware of the waterboarding. It's a matter of public record.


It seems that when CIA briefed Congress in 9/02, CIA forgot to mention that they had used the waterboard 83 times in the prior month. Instead, they apparently conveyed the impression that it was something that was under consideration, and hadn't been done yet. And, according to Pelosi, they promised to inform her when they started doing it, and never informed her of that.

I wonder if this fits your concept of "fully aware."

I think CIA also conveyed the same lie that was repeatedly conveyed to the public: that CIA waterboarding was the same procedure as SERE waterboarding. Trouble is, it's not.

==============
volokh groupie:

Congrats to Danny, keeping us safe at night, battling those dangerous strawmen.


I think maybe you're the person I've been looking for: someone who can explain how the torture memos don't open the door to such things as the use of electric shocks, or rape. Because the implication of your comment is that the memos don't open that door. Really?

Congrats to VG, helping the torture apologists sleep well, by pretending that the memos say something other than what they actually say.
5.6.2009 12:16am
Jim Rhoads (mail):
Good discussion. The issues are becoming developed. I have yet to see a good rationale for impeaching Bybee or prosecuting or disbarring Yoo or Bybee.

As I see it, the best those who criticize their opinions can do is the same thing all of us lawyers do when we disagree with the other side's brief or opinion. Seems to me that is how the adversary system works.
5.6.2009 12:22am
Danny (mail):
We don't even KNOW what the torture program contained without an investigation. We have a few memos but 97% of the techniques are hidden. They destroyed the tapes of Khalid Sheikh Mohammed and others' interrogation sessions, against CIA orders, because whatever was on them was so disturbing they wanted to hide it forever. I don't think they held back the boring, uncontroversial part. I won't be surprised if we discover that they did every torture technique known to man.
108 people in US custody did not survive.
Prosecute anyone who designed this program, regardless of party affiliation. Even if it's people from the Obama administration, who cares. Let it all come out.
5.6.2009 12:27am
Volokh Groupie:
@Jukeboxgrad

First, the 83 number has been denied/refuted by the government (and there's at least some evidence from the red cross supporting their assertion). How often waterboarding was used.

And please, the slippery slope bit by Danny (which he intelligently presented completely in snark and deserved my response) is ridiculous when all he used was the physical pain criteria. You can bet that pulling out fingernails, rape and electric shocks to genitals all fall on different parts of the scale for mental pain as defined by the memos. It's why you detailed the difference in the number of days for sleep deprivation as falling differently on the coercion scale.
5.6.2009 12:32am
Volokh Groupie:
Yeah Danny, I'm sure the Obama administration cared greatly about how to least negatively effect the impression of OLC laywers under Bush when they released those memos.
5.6.2009 12:34am
John Moore (www):
jukeboxgrad (mail):


constantin:

confirming that everyone here in favor of criminal proceedings against Yoo and Bybee, at least, will support similar action against Nancy Pelosi and Jay Rockefeller





Asked and answered. And answered again. And answered again. And answered again. And answered again.

Since you're asking for confirmation of what's already been confirmed, I assume you'll be continuing to ask, at regular intervals. And I guess it will be wise to ignore the question, since you seem to be ignoring the prior answers.


JBG, you spew such a huge volume on this topic that a correspondent can hardly be faulted for not being familiar with it.
5.6.2009 12:35am
PC:
You can bet that pulling out fingernails, rape and electric shocks to genitals all fall on different parts of the scale for mental pain as defined by the memos.

Could you point out where the August 2002 memo prohibits rape or electric shocks to the genitalia?
5.6.2009 12:46am
Eli Rabett (www):
The reason to wait for the OLC report is that there is likely to be much more than the memos. Correspondence that shows how Yoo and Bybee were asked to create cover for torturing prisoners and how they agreed to do so would fully justify disbarment and prosecution.
5.6.2009 12:48am
RPT (mail):
"VG:

First, the 83 number has been denied/refuted by the government (and there's at least some evidence from the red cross supporting their assertion). How often waterboarding was used."

FoxNews + "anonymoussource"=0.
5.6.2009 1:17am
jukeboxgrad (mail):
rhoads:

the best those who criticize their opinions can do is the same thing all of us lawyers do when we disagree with the other side's brief or opinion


You mean offer a non-responsive response that completely ducks the issues that were raised? Is that really "the same thing all of us lawyers do?" I refer you to the distinction Comey raised (and cited by Anderson) regarding the difference between a lawyer and a good lawyer.

You asked what was wrong with the memos, so you were told. Now you're not making even a pretense of defending them, or responding to the issues in a substantive manner. I guess this is your way of admitting what's obvious to plenty of other people: the memos are indefensible.

==============
vg:

the 83 number has been denied/refuted by the government


The number is 266, not 83. And it has not been "denied/refuted by the government." The source for that number is the CIA itself. The Fox article you cited is making a claim directly contrary to what's documented in the torture memos. Fox is addressing people who haven't read the memos. A group that apparently includes you.

Here's one clue that the Fox article is a joke: it never quotes the CIA text which mentions the relevant numbers. Here's another clue: it highlights detailed waterboarding guidelines, without pointing out that those guidelines weren't written until years after the waterboarding was done. Which means it's silly to assume that we waterboarded according to those guidelines. But that's exactly what the article does.

The article also promotes a blatant falsehood, that the CIA waterboarding was the same procedure used at SERE.

You can bet that pulling out fingernails, rape and electric shocks to genitals all fall on different parts of the scale for mental pain as defined by the memos.


You're ducking the issue. Where do the memos implicitly forbid rape and electric shocks? They don't. They repeatedly promote the idea that torture isn't torture unless there's permanent physical harm. Your claim about "different parts of the scale for mental pain as defined by the memos" comes straight from your imagination. Please indicate what language in the memos can be used as a basis to argue that waterboarding is in, but rape is out.

It's why you detailed the difference in the number of days for sleep deprivation as falling differently on the coercion scale.


You're ducking that issue, too. What is Bybee's basis for claiming that 264 hours of sleep deprivation isn't torture? Why not 2640?

I'm sure the Obama administration cared greatly about how to least negatively effect the impression of OLC laywers under Bush when they released those memos.


If the memos actually embody a sound legal analysis, then no one should be worried about "the impression" they create. They reason they create a bad "impression" is that they don't embody a sound legal analysis.

==============
moore:

you spew such a huge volume on this topic that a correspondent can hardly be faulted for not being familiar with it


He could "hardly be faulted for not being familiar" with what happened when the issue was raised weeks ago if the person who raised the issue weeks ago was someone other than him. But I see your point. Maybe when the issue was raised weeks ago it was raised by some other person using the name 'constantin.'

And speaking of "huge volume," your irony impairment is severe. In the threads cited here, you posted almost 300 comments. Which is more than anyone else, including me.
5.6.2009 1:19am
jukeboxgrad (mail):
And "spew" is a good word for making false claims (example) and then refusing to take responsibility for doing so.
5.6.2009 1:25am
Melancton Smith:

The relevant question is whether the lawyers opinion crossed the line from being "wrong" to being "unethical". If it did, it's fair to punish the lawyers too.


But they said they aren't likely to charge any of the torturers or the person or persons that ordered the torture. So it seems odd to just punish those that opined on its legality.
5.6.2009 1:25am
Volokh Groupie:
@PC
can you point out where the constitution explicitly says there is no right to secede?


@RPT

please go back to kos

To elaborate, I try to cite mainstream media sources despite the fact that each outlet has a discernable bias. Foxnews has a right wing bias, but that doesn't mean that good reporting can't be done by those working there. For example your left wing analogue could go:

La Times + anonymoussource + other outlets parroting the report =0

and that type of equation would essentially nullify half of all the news reports and investigations we saw during the Bush administration (and you can replace la times with ny times, wash po, etc)

Aside from the media outlet rejection (those who do this also conspicuously avoid addressing the substance of those reports) the rejection of anonymous sources is absurd (I mentioned this in the post on Chrysler). An enormous number of investigative reports that I'm sure you've often pointed to are based off of anonymous sources, especially those cases dealing with the government. I will agree that such sourcing calls for more investigation, but out of hand dismissing an anonymous source is foolish and often politically motivated.
5.6.2009 1:28am
PC:
can you point out where the constitution explicitly says there is no right to secede?

Are those goal posts heavy yet?

You made the claim, I'm just asking what part of the August 2002 memo prohibit rape or electric shocks to the genitalia. Apparently waterboarding is fine, but those other two methods are prohibited. On what basis?
5.6.2009 1:42am
rosetta's stones:

This isn't a gotcha, as I'm well aware that for some here, it's not a partisan issue. I respect that.


I don't think it's a partisan issue for Obama and Holder and Levin and Pelosi, and they're the ones that have been blocking the holy work that some of the fierce partisans are frothing for here.

Hard to see why they're blocking any real investigations of all this, but this latest report is just another punt. Some rhetoric and... nothing. These guys are like the Detroit Lions' offense... 3 and out every drive... then punt.

No wait, that's it... Holder's gonna sic the bar on 'em. THAT'll do it! Can't argue with something as strict as a state bar, can you? Those lawyers are gonna REALLY fix 'em now!... that's it... THAT'LL show 'em! "You lawyers are... er... How can we phrase this fellahs? You lawyers are ... um... you lawyers... Holder says you guys might have... er... What are you lawyers doing for lunch tomorrow? You know you're buying, right you sob's?" Yessir, those guys better get ready to pay a big bar tab at the steakhouse... the scoundrels.

Obama says Holder and an outside commission should handle it. Holder says Congress should handle it, and his OLC will look it over. His OLC says the state bar should handle it. Levin says Holder and an outside commission should handle it. Pelosi wishes it would all go away, and somebody would handle her, because it's lonely in Washington and there's nothing but a bunch of lawyers headed for the steakhouse every night.

Lordy, you'd think these guys could get it together and nail SOMEBODY, wouldn't you? All this shrieking... and nothing... sheeeyit, this is just disappointing. We got about 2 weeks to build momentum to get this in front of a serious congressional investigatino... no more. After that, it's gone forever. You shriekers... you better crank up the volume, and direct it at the right people.
5.6.2009 1:56am
Volokh Groupie:

The number is 266, not 83. And it has not been "denied/refuted by the government." The source for that number is the CIA itself. The Fox article you cited is making a claim directly contrary to what's documented in the torture memos. Fox is addressing people who haven't read the memos. A group that apparently includes you.

Here's one clue that the Fox article is a joke: it never quotes the CIA text which mentions the relevant numbers. Here's another clue: it highlights detailed waterboarding guidelines, without pointing out that those guidelines weren't written until years after the waterboarding was done. Which means it's silly to assume that we waterboarded according to those guidelines. But that's exactly what the article does.



Oh, I'm sorry, I forgot where citing yourself making an argument that you didn't think the term waterboard or waterboarding as quoted in the memos could mean anything but an entire session became the prevailing logic on the issue. I'll be sure to accept all your semantic distinctions from now on when they're used by you to accuse the government of lying in a particular instance. Nothing you've stated here or in that post that you linked to proves the article 'lied'.






You're ducking the issue. Where do the memos implicitly forbid rape and electric shocks? They don't. They repeatedly promote the idea that torture isn't torture unless there's permanent physical harm. Your claim about "different parts of the scale for mental pain as defined by the memos" comes straight from your imagination. Please indicate what language in the memos can be used as a basis to argue that waterboarding is in, but rape is out.


Really? You couldn't go to page 4, 6, 8 or the many other pages which reference severe mental pain or prolonged mental suffering as a criteria for these techniques? I guess my imagination is firmly couched in the text of the Bradbury Memo.





You're ducking that issue, too. What is Bybee's basis for claiming that 264 hours of sleep deprivation isn't torture? Why not 2640?


Considering I've never addressed the torture issue, you, or this specific issue on this blog I can hardly be accused of ducking the issue.





If the memos actually embody a sound legal analysis, then no one should be worried about "the impression" they create. They reason they create a bad "impression" is that they don't embody a sound legal analysis.


Really? You're conflating legality with how acceptable something is politically. The reason they create a bad impression is that they detail interrogative techniques (which are naturally going to be harsh) and don't detail any of the consequences. Regardless of whether the memos did cross a line into defending torture or even justified it intelligently, any memo which detailed interrogative methods leaves viscerally hurtful images in the public's mind if they appear to be done arbitrarily for benefit.
5.6.2009 2:00am
Volokh Groupie:
@JBG

By the way, you also never address the statements made to the red cross or the reports by the red cross in that piece regarding the number of times waterboarding was used.
5.6.2009 2:03am
Volokh Groupie:
@PC

Love the snark. In fact i think its been the strongest part of your argument and has demonstrated your ability to have a debate without being patronizing.

Anyway, with respect to the substance of your latest comment I already addressed it in JBG's comments.

(I'll get back to this post tomorrow in case I'm accused of 'ducking' something again (I have my own work and sleep to get to).
5.6.2009 2:07am
Danny (mail):
There are claims of rape from female prisoners at Abu Ghraib. It seems to have happened and been part of the torture program. Just by googling this one pops up:

Accusations made by an Iraqi woman named Nadia to The Guardian newspaper:
"One month later, a soldier showed up and told me in broken Arabic to take a shower. And before finishing my bath, he kicked the door open. I slapped him but he raped me like animals and called two of his colleagues, who forced me to have sex with them for up to 10 times," added Nadia.

"Four months later, the female soldier came along with four male soldiers with a digital camera. She stripped me naked and started fondling me as if she was a man while her male colleagues broke into laughter and started taking photos.

"Reluctant as I was, she fired four shots close to my head and threatened to kill me if I resist. Then, four soldiers raped me sadistically and I lost conscience. Later, she forced me to watch a clip of my raping, saying bluntly: �Your were born to give us pleasure�."

Naida was set free from the US hell in Abu Gharib after spending up to six months there."

***
We all remember those images of Lynndie England's sadism and the soldiers' threatening people with dogs. We know that 108 people in US custody did not survive their ordeal.

Now with the memos we have evidence (proof?) that these soldiers were not "bad apples" acting on their own initiative. These soldiers were ordered to commit the Abu Ghraib war crimes by the Bush administration. Rumsfeld clais he was "utterly shocked" to learn of the war crimes. So that was a lie, too. These are the facts, are they not?

Soldiers from Abu Ghraib went to jail for doing things authorized by the memos (walling, threats with dogs). If those were ordered by Washington, why not the sexual abuse and other crimes that were part of the same sessions?

This is not a right versus left, partisan issue. If the US is a serious country (which I am doubting more every day) it will investigate and prosecute the people who designed a torture program.
5.6.2009 2:07am
PC:
By the way, you also never address the statements made to the red cross or the reports by the red cross in that piece regarding the number of times waterboarding was used.

This is an interesting point. Without more details it seems likely that the CIA's statements refer to how many times water was poured over the face, if those numbers are reconciled with the ICRC report.

I'm not sure why this makes a difference outside of a plea agreement or sentencing.
5.6.2009 2:10am
PC:
Anyway, with respect to the substance of your latest comment I already addressed it in JBG's comments.

Thank you. I'm looking at the memo now and from my reading rape or electric shocks to the genitalia seem to be allowed.

Page 4 deals with intent and claims that, "Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

Since the interrogator's objective -- by definition -- is to retrieve information, it is not a violation of the torture statute to rape or apply electric shocks to the genitalia. QED.

Any interrogator has already been exonerated since he did not meet all 5 elements of the crime ((4) specific intent), but let's keep going a bit.

Page 6 is particularly interesting because "severe mental pain or suffering" is defined. In order to be covered by the torture statute the treatment has to meet one of four elements:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated calculated to disrupt profoundly the senses or personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

Let's deal with rape first. While rape can be painful, certainly precautions can be taken so that it does not rise to the level of "severe pain." (see pages 5 and 6 of the memo) As long as bodily tissues are not intentionally ruptured, rape would an acceptable technique under section A. Sections B and C do not apply to the act of rape, and D would only apply if you threatened to rape someone else in a way that caused "severe pain." So rape is an acceptable technique according to this memo.

Now let's go to shocks to the genitalia. While shocks to the genitalia can certainly rise to the level of severe pain, under controlled application it would easy to to induce only light or moderate pain. Therefore shocks to the genitalia are also acceptable.

So now we have two elements of the crime ((4)specific intent and (5) severe pain or suffering) that are not met for the enhanced interrogation techniques of rape and electric shocks to the genitalia.

I could be missing something, so critiques are welcome.
5.6.2009 2:41am
PC:
it would easy to to induce

...it would be easy to induce...
5.6.2009 2:43am
jukeboxgrad (mail):
smith:

they said they aren't likely to charge any of the torturers


Not exactly. Obama said he wouldn't charge interrogators who followed OLC rules. Trouble is, the CIA IG report of 5/7/04 "found that interrogators were exceeding the rules imposed by the Justice Department" (even though those rules themselves were a description of torture). So when Obama promised to not prosecute CIA interrogators who followed the rules, he probably realized he was describing a group that might have a very limited number of members (maybe even zero).

===================
vg:

can you point out where the constitution explicitly says there is no right to secede?


You're still dodging the question. The problem is not that the memos fail to explicitly forbid rape and electric shock. The problem is that the memos explicitly promote a legal and analytical framework which would permit rape and electric shock. We're still waiting for you to explain how it is possible to accept the various legal and logical claims made in the memos, while simultaneously claiming that rape and electric shock are torture.

Foxnews has a right wing bias, but that doesn't mean that good reporting can't be done by those working there.


Trouble is, I've proven that the article you cited is not an example of "good reporting."

I forgot where citing yourself making an argument that you didn't think the term waterboard or waterboarding as quoted in the memos could mean anything but an entire session became the prevailing logic on the issue.


It's not a question of whether or not the term "waterboarding as quoted in the memos could mean anything but an entire session." It's that the statement I made, and that NYT made, corresponds exactly with the statement that CIA made. I said that waterboarding was used 83 times in 8/02. Did I make a statement about the number of "sessions" (whatever that means)? No, I didn't. I simply made a claim in exactly the same form that was used by the CIA.

If you have a problem with the claim I made, then take your complaint to the CIA. Because I'm simply repeating the claim that was made by them.

I'll be sure to accept all your semantic distinctions from now on


That's hysterically funny, because it's Fox and you who are desperately inventing "semantic distinctions." Because there are no "semantic distinctions" between what I said and what CIA said. That's the whole point.

Nothing you've stated here or in that post that you linked to proves the article 'lied'.


Except that CIA said KSM was waterboarded 183 times, and Fox says he wasn't. I see a slight contradiction.

you also never address the statements made to the red cross or the reports by the red cross in that piece regarding the number of times waterboarding was used


I did indeed address those statements, later in the same thread, here.

You couldn't go to page 4, 6, 8 or the many other pages which reference severe mental pain or prolonged mental suffering as a criteria for these techniques?


What in the memos provides any basis for believing that sodomizing someone once induces more "severe mental pain" and/or "prolonged mental suffering" than waterboarding them 183 times? Where they are repeatedly brought to the "verge of death and back again?"

And if you read Bybee carefully, you will see that he does not accept the idea that "severe mental pain" is torture. He says that mental harm must be "prolonged" in order to violate the statute. What evidence is there that one instance of sodomy leads to "prolonged" mental harm, or that one instance of sodomy is more likely to cause "prolonged" mental harm than 183 instances of waterboarding?

any memo which detailed interrogative methods leaves viscerally hurtful images in the public's mind if they appear to be done arbitrarily for benefit.


The only reason the memos leave "viscerally hurtful images in the public's mind" is because they condone torture. If the public was truly pro-torture, and gung ho for us to use these techniques (which is an idea that some people are promoting), then the memos and public sentiment would be congruent, and there would be nothing to be ashamed of.

You're essentially promoting the paternalistic idea that we're better off not knowing what the government is doing in our name.

===================
danny:

these soldiers were not "bad apples" acting on their own initiative


Indeed. For years, we were told that events such as Abu Ghraib were caused by a "a few bad apples." Now we know "the abuses of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own." 11 GOP Senators put their names on that finding, which makes it harder to ignore. We now see the connection between the Bush torture policy and the abuses that took place at many different locations, and which led to many deaths that the military has classified as homicides.
5.6.2009 2:55am
Thoughtful (mail):
How can the US allow torture when it has prosecuted other states in international law courts for engaging in torture?

Quod lict Jovi non licit bovi.
5.6.2009 3:07am
Ricardo (mail):
Besides, I think it naive to think that this would not be a gauntlet thrown down for future Administrations. How about Jamie S. Gorelick's "wall"? It arguably killed 3,000+ Americans on 9/11. Was that good legal advice? What about the Chrysler reorganization? D.C. Congressional representation?

Trouble is, no one is suggesting that lawyers be disbarred or punished for giving bad or incompetent legal advice. The claim is that the advice that went into the OLC memos was a) not rendered in good faith and b) that it led to felony violations of U.S. law being committed by government agents. In the three examples you cite, there is no specific accusation of bad faith and nobody has violated federal criminal law on the basis of legal advice rendered by government officials.
5.6.2009 3:27am
Leo Marvin (mail):

“No good lawyer,” Comey said.

It would be worth building a time machine just to go back into the past and see Addington's face right then.

... and I'd put Comey's face on the dollar bill just for that line.
5.6.2009 4:11am
Anderson (mail):
I have yet to see a good rationale for impeaching Bybee or prosecuting or disbarring Yoo or Bybee.

Conspiracy to violate the Torture Act, by writing legal memos in bad faith to justify classic torture methods as supposedly outside the scope of that statute.
5.6.2009 7:39am
RPT (mail):
"VG:

@RPT

please go back to kos"

What does this mean? Is it some sort of conservative epithet like "teabagger" or invocation of some exclusionary right? Please address the merits of the issue re Fox News and anonymous sources.
5.6.2009 8:13am
jukeboxgrad (mail):
Interesting comments last night by Brian Tamahana:

These events may well have revealed a template for how high government officials can successfully engage in a conspiracy to violate U.S. law: Run a proposed illegal course of action through the OLC, have the Office lawyers produce a "legal opinion" (no matter how tortured) finding that the actions do not violate the law, and you are all set. The key is to get the OLC lawyers to go along.

After the dirty deeds are done, if the illegal conduct is exposed and serious heat comes, the policy makers (the "deciders") can say they cleared it with the OLC lawyers; those who engaged in the illegal conduct can say they relied upon the authorization of the OLC lawyers; the OLC lawyers can claim they wrote the memos in good faith under pressure, and complain that it is unfair to second guess them after the fact.

Done.


===============
Above I said that Obama didn't promise to not prosecute torturers; he only promised to not prosecute torturers who followed OLC rules. Several examples of that statement can be found here. Like this one:

it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution


As I pointed out above, CIA torturers violated OLC rules (even though those rules themselves were a description of torture). Which means they are not among "those who carried out their duties relying in good faith upon legal advice from the Department of Justice." A lot of people are failing to notice this, and are confused (example, example).

===============
Above there was mention of "prolonged" mental suffering. One of many problems with the memos is that they take the position that it's necessary to specifically demonstrate "prolonged mental harm" in order to show that the "severe mental pain or suffering" portion of the statute has been violated. But to take this position they have to misread the statute.

Something happened along the way from the Senate reservations to USC 2340: the insertion of a new word ("the") in the phrase "the prolonged mental harm." There's an interesting paper about this ("Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse;" pdf):

The simplified language in the Federal Anti-Torture Statute confirms the list of acts considered to constitute mental torture per the U.S. understanding, but crucially adds the word "the" to create the phrase "the prolonged mental harm."


The paper goes on to explain that the statute does not require "a showing of prolonged mental harm." OLC claimed otherwise.

===============
And speaking of misreading things. Scott Horton notices a few problems:

The Bybee memo is scattered with indicators that portions were not written in good faith. When it proposes the availability of self-defense against torture charges, it supports this unusual assertion by appealing to "leading scholarly commentators," and cites a law review article by Michael S. Moore. Turning to the page cited, we find Moore writing, "The literal law of self-defense is not available to justify their torture," although Moore wishes it were otherwise. Brief-writer's license? A good faith opinion is not a brief, and brief-writers should not misrepresent what the sources they cite actually say.

When the memo advances the defense of necessity, it cites no federal cases where a court accepted a necessity defense for a crime of violence, for the very good reason that there are none. The one case cited rejected the necessity defense.


Horton is talking about Bybee's 8/1/02 memo to Gonzales (pdf, text), not his memo to Rizzo of the same date.
5.6.2009 9:08am
jukeboxgrad (mail):
It looks like Bybee was thinking really, really hard about his next job.
5.6.2009 9:12am
Joseph Slater (mail):
I have nothing to add to the merits, but I did want to note this line:

These guys are like the Detroit Lions' offense... 3 and out every drive... then punt.

As a long (LONG!)-time Lions fans, it just kills me to see -- repeatedly -- blog posts that have nothing to do with football use the team as the "go-to" metaphor or simile for futility.

And now, back to the debate. . . .
5.6.2009 9:58am
rosetta's stones:
Slater, I'm a long time Lions fan as well. Sadly, the metaphor fits. I find myself on the same side with a bunch of BDS wingnuts, pushing for investigation of this mess, and the Lions just seem to fit, here.

Now, the Red Wings, that's another story.
5.6.2009 11:00am
MarkField (mail):

But they said they aren't likely to charge any of the torturers or the person or persons that ordered the torture. So it seems odd to just punish those that opined on its legality.


There's a certain sense of unfairness which comes when we prosecute only some of many who commit crimes. My kids make this argument all the time: "How come I get punished for X when she did Y (which was so much worse)?" The answer often is that we can't prosecute the others, or that we can't prosecute right now. There's no rule that says we have to prosecute all bank robbers together, rather than seriatim, nor that we can't prosecute one because we (for example) gave immunity to another in return for his testimony.

In short, the fact that one person gets away with speeding is not a defense when you get a ticket.

I should add that this is in addition to the comments of others noting the qualifying phrases in the Obama Administration's promises that it won't prosecute CIA.
5.6.2009 11:26am
jukeboxgrad (mail):
If there is evidence of a criminal conspiracy that extends as high as Bush, then he should also be prosecuted. It's interesting to notice the people who have gone out of their way to point out that the rule of law must be upheld, even when it means 'looking back," and even when it means prosecuting a president of the opposite party:

Even Presidents are not above the law. … The facts and the law, of course, must be the major factors, but prosecutors, especially in important cases, also bear a general responsibility for the public good. … Not indicting … sends a … subtle and sinister message from the [offender's] camp to future generations: "Here's how we got away with it." … the issue [is] … whether a President is above the law. … [An ex-president] is not "above the law… His conduct should not be excused, nor will it. The President can be criminally prosecuted, especially once he leaves office." … "As the Constitution clearly says, [an ex-president] remains subject to the laws of the land just like any other citizen of the United States." … "Whether any of his conduct constitutes a criminal offense … is not for me to decide. That, appropriately, should and must be left to the criminal justice system, which will uphold the rule of law in [his] case as it would for any other American." … Whether or not the President is above the law is ultimately the issue … will his flouting of the law escape even symbolic legal sanctions? … [We must] serve justice today, and uphold its principles for the future. Yes, [he] should be indicted, upholding the principle that even Presidents and ex-Presidents are not above the law.


Very convincing perspective, especially since it's said so emphatically, and since the source is so reputable.
5.6.2009 11:39am
Under penalty of perjury:
... as a matter of intent, as opposed to a matter of happenstance.


Hearing Before the Subcommitte on the Constitution, Civil Rights and Civil Liberties, June 26, 2008, transcript:

Mr. COHEN. [...] Did you also go further and say that whether the conduct is conscience-shocking depends on whether it is without any justification? Do you recall that?
Mr. YOO. Well, sir, it is in the memo. The memo—
Mr. COHEN. So that is true, then, yes. The answer is yes.
Mr. YOO. The memo says that.
Mr. COHEN. And it would have to be inspired by malice or sadism before it could be prosecuted. Is that right?
Mr. YOO. Sir, I think that language is taken out of context in the sense that the memo, as I read it, does not say that you must have those characteristics.
Mr. COHEN. Where did those words come from?
Mr. YOO. They come from, sir—in the memo, they come from the case law. They come from the decisions of the Federal courts interpreting—when they interpret what does the due process clause require and then they say—the courts have said we interpret it to mean shocks the conscience standard.
    There are Federal courts that have—I did not create those words.
    They are—
Mr. COHEN. Are you saying that the law states it is not how the person that is being tortured is receiving the treatment, but the intent of the person who is torturing?
    So if I want to take somebody’s fingernails out, if I think it is for the good of the country, that is not torture? If I want to cut somebody’s appendage off, it is okay as long as I think it is important for the country?
Mr. YOO. Sir, the memo does not say that. The memo quotes Federal cases that cite this as one amongst many factors that courts consider when they to determine what shocks the conscience.


(pp.65-66 / pp.69-70 in PDF)
5.6.2009 11:46am
Danny (mail):
When you live outside the US you understand how much we are seen as a criminal, hypocritical country. We are not admired or revered. America preaching democracy abroad makes people laugh out loud or sneer in disgust. If Obama ends up being a just a stylish cosmetic change but continues the lawlessness of Bush, I hope the international community will move to prosecute. I'm sorry I am emotional on this but I am still not used to the idea that I come from a criminal banana republic where the law is applied in function of one's nationality and political power.
5.6.2009 12:01pm
geokstr (mail):

Danny:
There are claims of rape from female prisoners at Abu Ghraib. It seems to have happened and been part of the torture program. Just by googling this one pops up:

Accusations made by an Iraqi woman named Nadia to The Guardian newspaper:

So far, and including the linked article, all I've seen to document the alleged sodomizations and rapes and other charges of what would be "torture" even to a right winger like me is "claims" by the purported victims. And yes, I've gone to the links provided and read other articles in hardline right wing rags like the LA Times, WaPo and NYT, and they all refer back to the "claims".

I've also linked to articles that note one of the most celebrated cases of a Canadian Muslim who claims he was brutally and constantly physically tortured by the Syrians but never showed any outward signs of it in the very visible areas (hands and face) that he claimed were beaten with heavy electical cord, even to people who were sympathetic to him who visited him less than a week after the "torture" ended.

No one on the left wants to address:
- that al-Queda trains its operatives to scream "torture" every time they see a camera, a microphone or a judge in a country that actually has the rule of law
Al Qaeda Handbook: "Claim the Americans are torturing you.

- that the Koran itself justifies lying to infidels to further the cause of Islam. It's called "taqiyyah":
"...the policy of deception, rooted as it is in Muhammad's dictum that "war is deceit" and the Qur'an's mandate to deceive unbelievers when under pressure..."
Jihad Watch

Can someone link some actual factual documentation from an objective source that can substantiate these cases beyond the "claims" of the "victims"? I'm pretty certain that being brutally raped dozens of times in a short period has gotta leave a mark.

If it happened, I'll go on record in favor of prosecuting those who raped, sodomized and beat prisoners, or did the testicular electrocutions, but I've seen nothing that says that this was expressly permitted at the highest levels of the Bush administration, other than those on the left who still are obviously nearly apoplectically overcome with BDS. To say that because each particular act wasn't expressly forbidden means it was implicity permitted or even encouraged is disingenuous to say the least.

They tried to pull this same BS when a Lt. named Calley went berserk after seeing half his platoon killed and wiped out a village he believed harbored the attackers in Viet Nam. The left went nuts then and tried to use their phony moral equivalence and say that this was officially sanctioned at the highest levels of government.

Even one of your heroes claimed that not only did this and much worse happen all the time, but he also took part, and it was part of official policy. However, despite being asked to provide evidence of any of it, none was ever forthcoming.
5.6.2009 1:23pm
Danny (mail):
@ geokstr

We know that sexual abuse and incontrovertible torture and degrading treatment happened at Abu Ghraib. We have the photos. When it happened, most of us assumed it had all been ordered by the Bush administration but no one could prove it. The Bush administration claimed it was an innovation by the Abu Ghraib soldiers. Now we have proof the Rumsfeld approved it, do we not, and that it seems that the torture memos were specifically drafted to allow it. The abuse at Abu Ghraib, the secret prisons in Europe and North Africa (also CERTAINLY torture, including cutting a man repeatedly with a razor) and Guantanamo and Bagram were all the same torture program ordered by the administration. We know this now, do we not?
5.6.2009 1:34pm
Danny (mail):
Also geokstr, since when are the people held by the US in Guantanamo and Abu Ghraib al-Qaeda members or even terrorists? Remember, they have never been accused of any crime and the gov't has presented no evidence for holding most of them. Probably most of the people at Guantanamo were just random people that Pakistan and China wanted off their hands (like the Uighurs who had an independence movement) so they decided to take advantage of the US to get rid of them.
Abu Ghraib was just a regular prison before the US invasion. The US held possible "terrorists" (again no accusation or evidence, just people dumped there by their enemies based on hearsay) as well as any kind of criminal (accused thieves, looters) since the US took over the entire Iraqi penal system
5.6.2009 2:53pm
jukeboxgrad (mail):
geo:

all I've seen to document the alleged sodomizations and rapes and other charges of what would be "torture" even to a right winger like me is "claims" by the purported victims.


Really? Dilawar was beaten to death, even though we thought he was innocent. Military coroners ruled that his death was a homicide, so there's no need to rely on " 'claims' by the purported victims." And is beating someone to death "what would be 'torture' even to a right winger like" you? I hope so.

What do you think the penalty should be for beating to death an innocent person? Maybe you should come up with an answer, and then compare your answer to the penalty that was actually imposed.

Can someone link some actual factual documentation from an objective source that can substantiate these cases beyond the "claims" of the "victims"?


Want to read about other detainee deaths by torture? There have been plenty. See here and here.

I've seen nothing that says that this was expressly permitted at the highest levels of the Bush administration, other than those on the left who still are obviously nearly apoplectically overcome with BDS


Do you get all your news from Rush, Sean and Bill? Because that would explain what you've "seen." Consider this statement:

After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes … The only question that remains to be answered is whether those who ordered the use of torture will be held to account … The commander in chief and those under him authorized a systematic regime of torture.


And consider this statement:

senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques … Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses … The abuses of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own


Who said those things? Ward Churchill? Cindy Sheehan? Barbra Streisand? Michael Moore? Keith Olbermann? Not quite. But I guess the general who investigated Abu Ghraib is now one of "those on the left who still are obviously nearly apoplectically overcome with BDS." And likewise for the 11 GOP senators (100% of the GOP senators on the Armed Services Committee) who approved the report I just cited.

You also seem determined to pay no attention to Crawford, who also said we tortured. Is she also "apoplectically overcome with BDS?" Who do you need to hear this from before you start paying attention? Laura? Barbara? The twins?

the Koran itself justifies lying


So what are we to make of the fact that Bush et al lied to us repeatedly (example, example, example, example, example)? I guess we can reach only one conclusion: Bush is a closet Muslim.

=================
danny:

Probably most of the people at Guantanamo were just random people that Pakistan and China wanted off their hands


"Random people" is a pretty good description of who we locked up and tortured:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).

More proof that we locked up innocent people is here.
5.6.2009 4:07pm
Jim Rhoads (mail):
Juke says of me:
You mean [sic] offer a non-responsive response that completely ducks the issues that were raised? Is that really "the same thing all of us lawyers do?" I refer you to the distinction Comey raised (and cited by Anderson) regarding the difference between a lawyer and a good lawyer.

You asked what was wrong with the memos, so you were told. Now you're not making even a pretense of defending them, or responding to the issues in a substantive manner. I guess this is your way of admitting what's obvious to plenty of other people: the memos are indefensible.


You and Cormey are entitled to your opinions, and I am entitled to mine. Lawyers disagree all of the time. I have had experience investigating war crimes (although it was 40 years ago) and have reviewed the arguments and citations on both sides. I have disagreements with each. I just don't think what I see as errors rise to the level of bad faith under the circumstances.

As a prosecutor, I would be reluctant to take the case. But I believe a competent prosecutor could well disagree with me and maybe even get a conviction in certain jurisdictions such as the District of Columbia. cf U.S. v. Libby

As a matter of policy, I think it would be a grave error to begin any investigation until the present war has ended.

Hey, Juke. If everyone agreed with you, Bybee and Yoo would already be convicted and drummed out of the respectable legal community.
5.6.2009 4:32pm
Leo Marvin (mail):
Jim Rhoads

But I believe a competent prosecutor could well disagree with me and maybe even get a conviction in certain jurisdictions such as the District of Columbia. cf U.S. v. Libby

It's misleading to imply DC demographics had anything to do with Libby's conviction, when the Republican prosecutor and judge shared the jury's conclusions.
5.6.2009 6:29pm
jukeboxgrad (mail):
rhoads:

You and Cormey [sic] are entitled to your opinions, and I am entitled to mine.


Of course you are. You're even entitled to believe the Earth is flat. But just because you have an opinion doesn't mean there's any connection between your opinion and reality. Some opinions are purely faith-based. When you ask a series of questions and then pointedly avoid making even a pretense of dealing with the answers, that tends to create the impression that your opinion was born somewhere other than the world of reason.

Earlier you said this:

The Bybee and the Yoo Memos say nothing of the sort, Danny. Nor do they say or imply rape is fair game.


Actually, they do imply rape is fair game. That was explained in some detail. So what you offered as an assertion of fact is merely a hope, or a wish. But hope is important, so I hope your other hopes work out well for you. Hopefully they're more rational than this one.
5.6.2009 6:52pm
Just an Observer:
Jan Crawford Greenburg is reporting that OPR has completely missed the Pennsylvania bar's four-year deadline for disciplinary complaints. Yoo is admitted there.

But Nevada and D.C., where Bybee is admitted, have no such time limit.
5.6.2009 7:12pm
John Moore (www):

The Yoo memo says it very clearly: anything that doesn't cause organ failure or death is not torture. So rape is fair game.

This straw-man needs to be demolished.

Rape is not fair game, because rape is covered under other statutes.
5.6.2009 7:45pm
Jim Rhoads (mail):
So only your position is a round earth position, Juke. If that is so, why did the 3rd Circuit recognize the Bybee/Yoo specific intent requirement as argued last week by the Holder Justice Department in its Brief in Demjanjuk as follows:
[T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”)
5.6.2009 8:47pm
Jim Rhoads (mail):
Juke? Juke?
5.6.2009 10:05pm
jukeboxgrad (mail):
moore:

Rape is not fair game, because rape is covered under other statutes.


Really? There's a federal anti-rape statute that applies outside the US? I had no idea. Hopefully you can tell us more about this imaginary statute.

Do you really not realize that the Torture Act applies only outside the US? Is it actually possible that you've posted about 300 comments on torture threads without reading the statute? I suppose stranger things have happened.

It's true that "rape [as a specific crime] is covered under other statutes." But to the extent that those statutes are American, they don't apply outside the US. The whole point of the Torture Act is to make it a violation of US law to commit torture outside the US (and this has something to do with the concept of universal jurisdiction). The Torture Act doesn't apply inside the US because there are indeed other statutes that criminalize various acts (like rape, and assault) inside the US. But this entire discussion is about acts of torture that took place outside the US. Where the Torture Act applies, but where American rape statutes do not.

But I guess this is your indirect way of admitting that the Bush interpretation of the Torture Act implicitly allows rape. You are unable to show that the OLC memos implicitly forbid rape, so you are forced to claim that it doesn't matter, because rape is forbidden by other statutes. Trouble is, no American rape statute applies outside the US. So in moore-world, it's perfectly legal to put a prisoner on a ship, sail into international waters, and rape the prisoner as part of an interrogation. That rape is a violation of no country's anti-rape statute, and it's also (according to you, since you accept the 'logic' of the OLC memos) not a violation of the Torture Act.

And what about electric shock? That's something else that is implicitly allowed by the OLC memos. If I use electric shock to torture you inside the US, I've committed criminal assault. But in Bybee-world and moore-world, I can do this outside the US without violating the Torture Act. Because Bybee adopted a peculiar concept of "torture," a concept that you embrace.

=================
rhoads:

So only your position is a round earth position


If your position "is a round earth position," then you should be able to address the evidence which demonstrates otherwise. It's very noticeable that you've barely tried.

why did the 3rd Circuit recognize the Bybee/Yoo specific intent requirement


They didn't "recognize the Bybee/Yoo specific intent requirement." They recognized the intent requirement that's part of the statute. The statute says this:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering


Bybee et al make the astonishing claim that the CIA torturers didn't specifically intend to cause severe suffering. This doesn't pass the laugh test, because the whole point of "enhanced interrogation techniques" is to coerce people to talk because they are so intensely motivated to stop suffering. The only reason these techniques are presumed to have any effectiveness whatsoever is that they impose severe suffering.

You didn't bother mentioning this, but you are citing a brief that is cited by McCarthy, here. McCarthy is hoping no one will notice that the Demjanjuk situation and the CIA situation are fundamentally different. Demjanjuk is trying to argue that if we send him to Germany, he will experience conditions that amount to "torture." Simply because he's old and frail, and being in a German jail will be "torture." Trouble is, Germany would not be putting him in jail for the purpose of making sure he experiences severe suffering. No one is claiming that the Germans intend to imprison him and make him suffer for the purpose of interrogation. Therefore he cannot claim "torture" under CAT, because the specific intent is absent. On the other hand, the CIA did indeed have the specific intent of imposing suffering for the express purpose of coercing a prisoner into speaking.

It's hard to say what's a more vivid display of desperation: Demjanjuk's argument, or this phony comparison that McCarthy raised today, which you are repeating. The comparison only makes sense if you think Demjanjuk's (potential) German jailers have the same 'intent' as our CIA torturers. Really? Germany is going to asphyxiate him repeatedly for the purpose (ostensibly) of foiling a terrorist plot?

Juke? Juke?


Where did you get the wacky idea that you're entitled to a response in less than 90 minutes? Especially since you still haven't answered the questions I asked you about 24 hours ago, here. I see you have the following attitude about ignoring questions: IOKIYAR.
5.6.2009 10:27pm
Jim Rhoads (mail):
I have answered the questions with my posts saying I disagree with you. And your attempt to distinguish the Third Circuit cases and the DOJ DemJanjuk brief is not particularly persuasive.

The Yoo/Bybee memos set out a number of general principles. One was the principle recognized by the en banc decision of the Third Circuit in Pierre and cited with approval in the DOJ Brief I linked and quoted.

You have, among other things, challenged the accuracy of the Bybee/Yoo memos' accuracy when it asserted that the Torture Statute act requires specific intent "...to inflict severe physical or mental pain or suffering”. It is pretty clear to me that DOJ's adoption of that principle in Demjanjuk makes my agreement with that principle a "round earth" proposition.

Much of your rhetoric on this thread is designed to belittle the Yoo/Bybee adoption of that principle.

Without belaboring the point, I do not think your characterization of my disagreement with your position on that point as a "flat earth" position is warranted or accurate.
5.6.2009 11:00pm
John Moore (mail) (www):

So in moore-world, it's perfectly legal to put a prisoner on a ship, sail into international waters, and rape the prisoner as part of an interrogation. That rape is a violation of no country's anti-rape statute,

Perhaps you didn't learn that a country's laws apply to ships at sea?

Besides, the whole rape thing is a non-starter. The administration had a list of tactics. Rape wasn't on it.
5.6.2009 11:08pm
Leo Marvin (mail):
JM,

Besides, the whole rape thing is a non-starter. The administration had a list of tactics. Rape wasn't on it.

If the analysis they relied on to legitimize those tactics would have also legitimized rape, then I think your non-starter has pulled away from the station.
5.6.2009 11:19pm
Jim Rhoads (mail):
But the analysis doesn't do that, LM. That is the point JM was making. Other statutes and conventions prohibit rape. Just because the offense of assault with intent to commit murder does not encompass rape does not mean rape is unlawful. Indeed there is a specific statute making rape a crime.

Failure to include rape under an definition of "torture" does not legalize rape where, as here, other statutes and conventions make rape illegal.
5.6.2009 11:32pm
Just an Observer:
Jim Rhoads: And your attempt to distinguish the Third Circuit cases and the DOJ DemJanjuk brief is not particularly persuasive.

Sorry to butt in, but I don't find the spin you and Andy McCarthy are putting on this very persuasive, either.

The cites quoted in the Demjanjuk brief are confined to the point that "specific intent" is required in that context, as distinct from "general intent." These are customary terms of art that legal practitioners are familiar with. And, as jukeboxgrad points out, the fact that specific intent itself is part of the Torture Act's statutory definition is tautologically and noncontroversially true.

What Yoo and Bybee were criticized for in the Aug. 1 2002 memo was that they went far beyond that statutory language, inventing whole new requirements that there must be a "precise objective" and an "express purpose" of inflicting severe pain or suffering (thus conflating intent with motive). Basically, they just made stuff up. And the verbiage they made up did not appear in the Demjanjuk brief you and McCarthy are flogging today.

Notably, Bybee's secret embellishment of the statute was hooted out of town following its disclosure in 2004, and the whole memo was withdrawn by hss successor. The replacement memo, issued months later, properly omitted it. See Marty Lederman's analysis here.

So no smoking gun here. McCarthy is just spinning disingenously for political purposes. That is, after all, his vocation.
5.6.2009 11:53pm
Just an Observer:
FWIW, rape of captives is expressly forbidden by the War Crimes Act, distinct from the prohibiton against torture in that statute. So it is forbidden today, after Hamdan.

But under the environment within which the Bybee/Yoo Torture Act analysis was written in 2002, the WCA did not apply because Geneva CA3 supposedly did not apply to this conflict. That finding had occurred separately about seven months earlier.
5.7.2009 12:11am
Jim Rhoads (mail):
JAO:

You say:
What Yoo and Bybee were criticized for in the Aug. 1 2002 memo was that they went far beyond that statutory language, inventing whole new requirements that there must be a "precise objective" and an "express purpose" of inflicting severe pain or suffering (thus conflating intent with motive). Basically, they just made stuff up. And the verbiage they made up did not appear in the Demjanjuk brief you and McCarthy are flogging today.
But here's one of the criticisms Lederman leveled in January 2005:
The 2002 Opinion concluded (pp. 3-4) that the statutory requirement that the torturer “specifically intend” to inflict severe pain or suffering requires that the defendant have had the “precise objective” of inflicting severe pain, i.e., that it is not sufficient that the defendant knew his conduct would result in such severe pain, and that the defendant cannot be guilty of torture unless he acted “with the express purpose of inflicting severe pain or suffering.” The new Opinion declines to adopt these conclusions (pp. 16-17 n.27), and concludes instead (p. 16) that it is not useful for OLC to try to define the precise meaning of the term—i.e., to resolve the very difficult cases between the two extremes—in the absence of any judicial guidance on the question.


It appears to me that the Third Circuit (and the Holder DOJ) now disagrees with this Lederman criticism.

Don't forget those who are arguing Yoo/Bybee went beyond the pale have a heavy burden. At least on this point they have not met it so far as I can see.
5.7.2009 12:17am
Just an Observer:
Jim Rhoads: It appears to me that the Third Circuit (and the Holder DOJ) now disagrees with this Lederman criticism.


It doesn't appear that way at all to me. Where in the Third Circuit brief does that language -- "precise objective" and "with the express purpose" -- appear? Not in the passage you quoted.
5.7.2009 12:27am
jukeboxgrad (mail):
rhoads:

I have answered the questions with my posts saying I disagree with you.


Saying "I disagree with you" is not an argument, and it's not an answer. It's an evasion. I realize you have the capacity to state (and restate) your position. What you seem to lack is the ability to explain it or defend it.

your attempt to distinguish the Third Circuit cases and the DOJ DemJanjuk brief is not particularly persuasive


Another non-answer. Please explain McCarthy's basis for suggesting that Demjanjuk's (potential) German jailers have the same 'intent' as KSM's CIA torturers. Small problem: they don't.

You have, among other things, challenged the accuracy of the Bybee/Yoo memos' accuracy when it asserted that the Torture Statute act requires specific intent "...to inflict severe physical or mental pain or suffering”.


Wrong. Did you even read what I wrote? The Torture Act does indeed require "specific intent '...to inflict severe physical or mental pain or suffering.' " I have not "challenged the accuracy of the Bybee/Yoo memos' accuracy" in pointing out that part of the statute. As JaO said, "the fact that specific intent itself is part of the Torture Act's statutory definition is tautologically and noncontroversially true." Bybee's problem is not that he pointed out that part of the statute. Bybee's problem is claiming that a CIA torturer who imposes suffering for the express purpose of coercion lacks the intent to impose suffering. Huh? I notice you haven't tried to make sense out of that bizarre claim. Instead you're pretending I said something I didn't say.

Much of your rhetoric on this thread is designed to belittle the Yoo/Bybee adoption of that principle.


The problem with Bybee's "adoption of that principle" is that he applied it to a situation where it doesn't apply. Bybee claims that CIA didn't intend to impose suffering, even though CIA obviously intended to impose suffering.

And McCarthy's argument is even more absurd. McCarthy is explicitly arguing that the Torture Act only intended to outlaw torture done by an evil sadist who is torturing just for the sake of torture. He claims, with a straight face, that "only those who had an evil motive to inflict severe pain and suffering could be prosecuted" under CAT.

Really? So if next year some enemy army captures a CIA spy, and hacks off his fingers, and broils his genitals, they would be immune from prosecution under CAT (according to McCarthy, and you) as long as they could show that their motive was to gain intelligence regarding American military plans. Because that is obviously a legitimate military "motive," and it is not "an evil motive to inflict severe pain" for its own sake. And the intent of CAT is to allow torture, as long as the motive isn't "evil." And I think I know how McCarthy defines "evil:" 'when someone else does it to us.'

The sophistry is breathtaking.

Failure to include rape under an definition of "torture" does not legalize rape where, as here, other statutes and conventions make rape illegal.


I think you are acknowledging that the OLC memos imply that rape could not be considered a form of torture. That's helpful to know. What about electric shock to your genitals? Are there "other statutes and conventions" which make that illegal? Since that procedure is implicitly allowed by the OLC memos, then what statute would forbid it? Or maybe your position is that it's not forbidden, and should not be forbidden. I'm just guessing, because I notice you have not made a clear statement about this.

============
moore:

Perhaps you didn't learn that a country's laws apply to ships at sea?


Really? American laws will apply even if it's not an American ship?

Besides, the whole rape thing is a non-starter. The administration had a list of tactics. Rape wasn't on it.


Why not? According to the OLC 'logic,' there's no reason to rule it out. And why should we forgo what could be an effective technique? Don't you realize there could be a ticking time bomb, and there might be many lives at stake? How are you going to explain to the next-of-kin that your personal squeamishness about rape is what prevented us from preventing the attack that killed their loved ones?

And if you want to rule out rape because it violates WCA (as JaO helpfully pointed out), then what about electric shock (which is not explicitly forbidden by WCA, as rape is)? Aren't you interested in protecting America? Why do you care so much about coddling terrorists? And if you think it should not be allowed, then why do the OLC memos implicitly allow it? I thought these memos had your approval.
5.7.2009 1:06am
Jim Rhoads (mail):
It gets pretty close here:<blockquote>Specific intent [under the Act] requires not simply the general intent to accomplish an act with no particular end in mind, <b>but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture.</b> Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.
* * * * *
In our view, a petitioner cannot obtain relief under the CAT unless he can show that his prospective torturer will have the goal or purpose of inflicting severe pain or suffering.
* * * * *
Finally, we reject Lavira’s discussion of willful blindness. Willful blindness can be used to establish knowledge but it does not satisfy the specific intent requirement in the CAT.</blockquote>[bolding mine]
5.7.2009 1:24am
Jim Rhoads (mail):
It gets pretty close here:
Specific intent [under the Act] requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.
* * * * *
In our view, a petitioner cannot obtain relief under the CAT unless he can show that his prospective torturer will have the goal or purpose of inflicting severe pain or suffering.
* * * * *
Finally, we reject Lavira’s discussion of willful blindness. Willful blindness can be used to establish knowledge but it does not satisfy the specific intent requirement in the CAT.
[bolding mine]
5.7.2009 1:26am
jukeboxgrad (mail):
rhoads:

Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture.


What you and McCarthy are saying is that future enemies can torture Americans while remaining immune from prosecution under CAT, as long as the torture has some valid military objective, and is not just torture for its own sake. Because "specific intent to torture" is present only if the torture has no objective other than torture itself. So the intention of CAT was to allow any form of torture as long as it's done in pursuit of some military or political objective. Notice what McCarthy says:

As the lawyers concluded after studying the relevant history, this means it [CAT] was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him.


(Emphasis in the original.) In other words, a torturer simply has to claim that his "conscious purpose" was to gather valuable information. According to McCarthy, that torturer lacks "specific intent to torture." Because that torturer had "a deliberate and conscious purpose" that was something other than torture just for the sake of torture. And if that "deliberate and conscious purpose" is to gain valuable information for the purpose of protecting one's Homeland (or Fatherland), this is a virtuous motive, not an "evil motive." And CAT is "narrowly drawn" to allow torture that is done with virtuous motives.

And McCarthy presents this argument even though CAT says this:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.


Really? I hope you can explain what meaning these words can possibly have, if "specific intent to torture" means what you and McCarthy claim it means.

It would make roughly as much sense to simply say what Nixon and Condi both said: it's legal because the president said so.
5.7.2009 8:11am
Under penalty of perjury:
It gets pretty close here:


Hearing before the Subcommittee on the Constitution, Civil Rights and Civil Liberties, Committee of the Judiciary, House of Representatives, June 26, 2008,
transcript
:

Mr. SCOTT. Mr. Schroeder, Professor Schroeder, can a legal opinion be so ridiculous that it does not protect those who follow the definition in such a memo?
Mr. SCHROEDER. Well, it could be, Congressman. But if you are talking about the effect it would have on somebody, say, down the line, actually, an operative in the field and hasn’t had a chance to read the memo, but is simply getting advice that an authoritative interpretation exists, then I think it would be very difficult for that person to be held responsible for having analyzed and rejected the law on his or her own behalf.
Mr. SCOTT. Well, can the opinion be so ridiculous that as it goes down the line, people ought to have the common sense to reject the analysis and use their common sense as to when it is torture and when it is not, or does the Administration have the power to just write up such a memo and protect people who torture people based on a ridiculous legal opinion?
Mr. SCHROEDER. No. I don’t believe they do. I think that people—and you would expect that members of the military would use their own common sense as to what is permissible or not.
Mr. SCOTT. Now, is it an excuse to torture if you got good information from the torture?
Mr. SCHROEDER. Not under the treaty and I think not under the statute that implements the treaty, no.
Mr. SCOTT. Is it an excuse to torture if you can’t get the information you are looking for using less aggressive techniques?
Mr. SCHROEDER. No, sir. The treaty admits of no exceptions.
Mr. SCOTT. Now, Mr. Yoo, if you are going to go around torturing people based on your memo, how do you know before you get information whether or not you are going to get good information from someone?
Mr. YOO. Sir, I am not going around torturing people, as you just said, and the memo does not authorize anyone to torture anybody.
    So unfortunately, I don’t agree with the premise of your question.
Mr. SCOTT. Are you suggesting that the activities allowable under your memo do not constitute torture by everybody's definition in the world except yours?
Mr. YOO. Sir, I don’t know what everybody else's definition in the world is.
Mr. SCOTT. Now, is it an excuse to use more aggressive techniques, the techniques that you can use, do you get—do you consider the information you are going to get or the fact that you couldn’t get it using less aggressive techniques?
    Does that excuse more aggressive techniques?
Mr. YOO. Sir, as I understand the statute, as it is written now, does not provide—it does not provide an exception for whether the information is good, as you said, or whether the interrogation techniques are less—you could less or more aggressive interrogation techniques.
    There is nothing in the statute that says anything about that.


(p.61 / p.65 in PDF)
5.7.2009 10:15am
jukeboxgrad (mail):
Yoo: it does not provide an exception for whether the information is good


I just can't understand why Yoo didn't invoke the defense that McCarthy and Rhoads have invoked: that torture is OK as long as the motive isn't "evil." Even though CAT says explicitly that there is no allowance for "exceptional circumstances."

All this fuss could have been avoided if OLC had just hired McCarthy and Rhoads, instead of hiring Yoo.
5.7.2009 10:34am
Jim Rhoads (mail):
I haven't invoked the defense, Juke. The Third Circuit did in the above quote. And the Justice Department has cited that principle to support its case in Demjanjuk.

Using McCarthy's analysis to attack mine is of little consequence. I didn't cite McCarthy, but quoted from the Third Circuit's opinion making clear that torture ia a "specific intent" offense. It is that principle in the Yoo/Bybee memos that I believe has full support in the law. For the moment, my argument goes no further than that. Trying to reduce that principle by taking it to absurd extremes is a good rhetorical device. But it did not win the day for the Haitian immigrant in Pierre.
5.7.2009 1:09pm
jukeboxgrad (mail):
Using McCarthy's analysis to attack mine is of little consequence. I didn't cite McCarthy


Really? You "didn't cite McCarthy?" Your bogus argument has nothing to do with his bogus argument? Even though you presented the exact same text he presented, and even though you did so less then 8 hours after his article appeared? That was just a coincidence? Even though you grabbed the text directly from his article, and not from the actual brief (unless it's an utter coincidence that you and McCarthy decided to use "citations omitted" in the exact same way)?

Despite all that, your "analysis" is somehow separate from his? I hope you'll tell us what the difference is, because I don't see any.

I think what you mean to say is that you "didn't cite McCarthy" openly. You cited McCarthy while pretending to have come up with something that wasn't lifted directly from him.

And speaking of the text you lifted from McCarthy, which he lifted from the brief, let's pay attention to the very next sentence, which both you and McCarthy omitted:

Poor prison conditions (Demjanjuk has not – and cannot with any credulity – alleged that German prison conditions are poor) are not a basis for deferral unless they are deliberately created and maintained for the purpose of inflicting extreme pain or suffering.


Demjanjuk and Pierre were not in a position to make a claim of torture, because they were not dealing with circumstances that "are deliberately created and maintained for the purpose of inflicting extreme pain or suffering." On the other hand, it's painfully (ha) obvious that everything about the CIA torture program was indeed "deliberately created and maintained for the purpose of inflicting extreme pain or suffering." And this is still torture, even if the ultimate goal of the torture is a virtuous one: to protect the Homeland, or Fatherland.

I haven't invoked the defense, Juke. The Third Circuit did in the above quote. And the Justice Department has cited that principle to support its case in Demjanjuk.


The heart of the sophistry that you and McCarthy are promoting is to pretend that the circumstances of Demjanjuk, Pierre and KSM et al are all the same. Trouble is, they're not.

I didn't cite McCarthy, but quoted from the Third Circuit's opinion making clear that torture ia a "specific intent" offense.


We know you're being disingenuous when you pretend that we needed "the Third Circuit's opinion" to know that "torture ia a 'specific intent' offense." Duh. We don't need "the Third Circuit's opinion" to know that. We know that "torture ia a 'specific intent' offense" just from reading the statute. As JaO said, "the fact that specific intent itself is part of the Torture Act's statutory definition is tautologically and noncontroversially true."

What you and McCarthy are doing is pointing to the fact that the concept of "specific intent" was raised with regard to Demjanjuk and Pierre (as if there's something remarkable or eye-opening about this, when in fact it's just a matter of paying attention to the plain language of the statute). You then make the following claim (paraphrase): 'since it was legitimate to invoke the concept of specific intent with regard to Demjanjuk and Pierre, this means that it's also legitimate to invoke that concept with regard to the circumstances of KSM et al.'

Trouble is, this glosses over the plain fact that the circumstances of Demjanjuk and Pierre are fundamentally dissimilar from the circumstances of KSM et al. McCarthy wants to treat those three cases as the same, even though they're not the same. And it's specifically for the purpose of making them look the same that he comes up with the screamingly outlandish idea that a torturer with virtuous motives is immune from CAT. He just doesn't bother to explain how this idea is congruent with the fact that CAT allows for "no exceptional circumstances whatsoever."

It is that principle in the Yoo/Bybee memos that I believe has full support in the law.


The concept of "specific intent" does indeed have "full support in the law," because it's plainly stated in the law. That doesn't mean that OLC, McCarthy and you can invoke a defense of "specific intent" in a case where that defense does not apply. That defense is not available to CIA because they did indeed have "specific intent" to torture. This is reflected in the fact that the CIA torture program was "deliberately created and maintained for the purpose of inflicting extreme pain or suffering." McCarthy wants to claim that CAT permits this, as long as the torturer is guided by a virtuous goal. But that's pure nonsense, because CAT allows for "no exceptional circumstances whatsoever."

Trying to reduce that principle by taking it to absurd extremes is a good rhetorical device.


It is you and McCarthy, not me, who have gone to absurd extremes. You are suggesting, just like McCarthy, that CIA can invoke the "specific intent" defense. You just haven't bothered to explain why this 'logic' doesn't apply in reverse, when an American spy is captured and tortured by a future enemy. This isn't me taking something "to absurd extremes." It's simply me challenging you to face the absurd implications of your absurd argument. And this is just one of many questions and challenges that you prefer to evade.

it did not win the day for the Haitian immigrant in Pierre


That's because the circumstances are so different. To help you understand how the CIA case is unlike the cases of Demjanjuk and Pierre, pay attention to the language in the Torture Act (and there is similar language in CAT):

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control


Demjanjuk and Pierre were complaining about "pain or suffering incidental to lawful sanctions." Whereas CIA was imposing pain and suffering for the express purpose of coercing the prisoner to talk (that is, the prisoner was placed in circumstances "deliberately created and maintained for the purpose of inflicting extreme pain or suffering," for the sake of interrogation). And this is exactly one of the purposes that CAT expressly forbids:

the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession


It's important to notice that prominent torture apologists like McCarthy cannot defend Bush's torture policy without presenting assertions that are transparently inane (like the idea that CAT allows exceptions for a virtuous torturer). When this is the best that a smart person can do, you can safely conclude that they are desperate and empty-handed. And the desperation is warranted, because the crime is great and the evidence is strong.

The only question now is whether we want to be a great country, or whether we want to sink to the level of the morally mediocre leaders that we chose.
5.7.2009 4:30pm
Jim Rhoads (mail):
Juke, you are really going to be disappointed when no successful action is taken against Yoo and Bybee.

Your fisking of my posts took a lot of your time, and I appreciate your craftsmanship and skill. But I read the Third Circuit positions and the Justice Department brief in Demjanjuk. I did not rely on McCarthy's reading of that material, but read it thoroughly. The fact that McCarthy put me on to those cases and brief hardly supports your implied argument that I am spewing the McCarthy line.

Moreover, I continue to submit that the "specific intent" principle that you are now belittling was one that Lederman (who you specifically cite) criticized before the Third Circuit opinions (see quoted Lederman material above).

I argued that in at least that instance, Yoo/Bybee were right and Lederman was wrong. You never met that argument, preferring instead to ridicule arguments I did not make.

I will say you are a persistent cuss, Juke. And persistence is an admirable quality.
5.7.2009 5:43pm
jukeboxgrad (mail):
you are really going to be disappointed when no successful action is taken against Yoo and Bybee


Bybee et al have been disgraced. They know they are no longer welcome in places where civilized people gather, and they are going to think twice before they plan vacations outside the US. That's a good start.

your implied argument that I am spewing the McCarthy line.


I didn't 'imply' that you're "spewing the McCarthy line." I stated it plainly. And I challenged you to indicate where there is even an iota of difference between your "line" and "the McCarthy line." Your failure to address that challenge is conspicuous, just like your other evasions (like your failure to support your claim that Yoo does not "imply rape is fair game").

the "specific intent" principle that you are now belittling was one that Lederman (who you specifically cite) criticized before the Third Circuit opinions (see quoted Lederman material above).


Your reading comprehension needs work. Where did I cite Lederman? I haven't. And where have you seen me "belittling … the 'specific intent' principle?" Here's where I've done that: nowhere. What I've criticized is Yoo's interpretation of that principle. Not the same thing.

And likewise for Lederman. In his text which you cited here, and which can be found in context here, he did not criticize "the 'specific intent' principle." He criticized Yoo's peculiar interpretation of that principle.

The Third Circuit ruling regarding Pierre (pdf), the Holden brief regarding Demjanjuk (pdf), the superseding Levin OLC memo of 12/30/04, and Lederman all acknowledge what's obvious: that the statute requires specific intent. They also all decline to support the peculiar interpretation that Yoo invented, which involved introducing the concepts of "express purpose" and "precise objective." And that peculiar interpretation is what underlies McCarthy's bizarre claim, that torturers with a virtuous goal are immune from CAT.

You and McCarthy would like no one to notice that Yoo's narrow reading (embodied in his terms "express purpose" and "precise objective") was accepted by neither Holden nor the Third Circuit. Nevertheless, McCarthy says this: "investigate Bush lawyers’ torture analysis one day, cite it favorably the next."

He's claiming that Holden 'cited' Yoo's analysis. Really? How is that claim anything other than a lie? Holden didn't mention Yoo's memo, and didn't adopt Yoo's language, or Yoo's narrow reading of the statute. All Holden did is what the Third Circuit did: acknowledge the plain language in the statute calling for specific intent. Holden did not "cite" the "Bush lawyers’ torture analysis." He cited the statute.

The other thing that you and McCarthy would like no one to notice is that the CIA situation is fundamentally different from the situations of Demjanjuk and Pierre. In those situations, specific intent is absent. In the CIA situation, it is present. That fact is central and unavoidable, and McCarthy can't get around it without invoking a wacky idea about how CAT only concerns itself with torturers who are motivated by "evil."
5.7.2009 10:08pm
Volokh Groupie:
Sorry for the late reply (but wasting [well not wasting] a night posting comments on VC has consequences on work) but I'll try to address some of the points made

@RPT

The immediate dismissal of a right wing media outlet + anonymous sources in the snarky manner your comment was written in makes it clear you're a partisan. And regarding a substantive discussion of why anonymous sources and clearly ideologically biased new sources can still provide important reporting, I already made that argument in the exact post you responded to. At least JBG had the honesty to respond to the content of the report and now flame sources based on political ideology (I do agree that this isn't a partisan issue by the way - whether it refers to KSM or Demanjanjuk).




@PC (and JBG who asks similar questions)





(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
...

Let's deal with rape first. While rape can be painful, certainly precautions can be taken so that it does not rise to the level of "severe pain." (see pages 5 and 6 of the memo) As long as bodily tissues are not intentionally ruptured, rape would an acceptable technique under section A. Sections B and C do not apply to the act of rape, and D would only apply if you threatened to rape someone else in a way that caused "severe pain." So rape is an acceptable technique according to this memo.

Now let's go to shocks to the genitalia. While shocks to the genitalia can certainly rise to the level of severe pain, under controlled application it would easy to to induce only light or moderate pain. Therefore shocks to the genitalia are also acceptable.


Just to be clear the mental suffering is the 'prolonged mental harm/suffering (or something like that)' caused by the 4 points listed. Either way you're now conceding that there are substantive arguments to be made that can differentiate each of these procedures from waterboarding and the decision would turn upon how persuasive they are in the context of those 4 points (so there is clearly distinguishability). Here you're laying out arguments at to why each specific method is analogous enough that they still qualify under those 4 points - in any event its clear that the leap from waterboarding to these other examples isn't so trivial. With respect to rape and shocks to the genitalia, I think the prolonged mental harm due to severe suffering clearly has sexual component which also needs to be addressed aside from just the physical analysis you're trying to make. In fact, rape (under the physical 'restraints' you mention) clearly has no other coercive effect besides a sexual one. The argument with respect to shocks to genitalia also have a similar component but are more analogous to waterboarding though it isn't clear that shocks that don't amount to 'severe pain/suffering' would be able to have the same type of coercive effect waterboarding would (this isn't just a trivial question considering that those who support waterboarding as not reaching the level of torture always point to SERE).




So now we have two elements of the crime ((4)specific intent and (5) severe pain or suffering) that are not met for the enhanced interrogation techniques of rape and electric shocks to the genitalia.



I've responded above to the arguments for why (5) is breached for those procedure in the context of causing prolonged 'mental harm/suffering'. I think rape is nearly impossible to argue as being analogous to waterboarding (as is pulling out fingernails for clear but unrelated reasons). I think there's also an argument to be made that applying electric shock to genitalia is also distinguishable, though it is a much closer case. It's fairly telling though that once you get to the electric shock to genitals method its really very specific parsing. There's clearly a strong argument that waterboarding does satisfy those techniques prohibited underneath part A of the mental suffering guidelines in 2340. Making clearly weaker arguments by comparison against waterboarding diminishes the relatively strong argument that exists for some cases.

@JBG

If you're simply parroting the exact report from the memo then how exactly have you disproven the Fox report as you claim? Considering that the comments were from an relevant administration official how exactly did you disprove them. You're simply saying 'they stated 'A' and I said 'A''. The report than contextualizes what 'A' means based upon the statements of a US official and you decide not to accept it because you've clearly already assigned what you feel the words should mean. You then lay out a convoluted semantic analogy to rape 300 times and try to use that as an analogy for proof of your view. How is that not trying to foist the subjective as objective?

Otherwise, I still haven't found where you addressed the red cross reports. Feel free to point me to them.

Finally, regardless of how we feel about it, the public opinion clearly is divided on whether waterboarding is an acceptable interrogative technique. The number of polls on the issue make it clear that my point regarding the context of waterboarding with respect to its intelligence yield is an issue with respect to public opinion. To the public, it seemingly isn't simply a moral issue that casts off any utilitarian value.
5.8.2009 2:12am
jukeboxgrad (mail):
vg:

At least JBG had the honesty to respond to the content of the report and now flame sources based on political ideology


I know you meant to type "not" instead of "now," but I wanted to highlight that for the sake of readers who might not realize that.

And I realize it's not your personal responsibility, but "flame sources based on political ideology" (in the sense of reflexively dismissing citations from certain sources, even when the source fully documents the claim) is something that certain 'conservatives' here do routinely.

But I do think it's relevant to take into account who the source is, and what kind of track record they have. Especially when they do not document the claim (and obviously in the Fox article you cited, they did not document their claims).

Just to be clear the mental suffering is the 'prolonged mental harm/suffering (or something like that)' caused by the 4 points listed.


I think there's a lot of confusion about this matter of "prolonged mental harm." I recommend you take a look at the pdf I cited here.

you're now conceding that there are substantive arguments to be made that can differentiate each of these procedures from waterboarding and the decision would turn upon how persuasive they are in the context of those 4 points (so there is clearly distinguishability)


I don't see where anyone is conceding any such thing. The "distinguishability" exists only in your imagination. There is nothing in the logical and legal framework offered by Yoo that provides any reason to see "distinguishability" between waterboarding and the other methods mentioned in this thread (e.g., sodomy and electric shock).

If you claim that Yoo offers any such distinguishability you should cite his language where such distinguishability can be found. It's not there. On the contrary. He says the threshold for torture has something to do with "death, organ failure, or serious impairment of body functions," and the methods we mentioned can easily be applied without crossing that threshold.

its clear that the leap from waterboarding to these other examples isn't so trivial.


If you think it's "clear," you should explain where that clarity can be found in Yoo's words. This clarity exists only in your imagination.

With respect to rape and shocks to the genitalia, I think the prolonged mental harm due to severe suffering clearly has sexual component which also needs to be addressed aside from just the physical analysis you're trying to make.


What is there in the memos, or in common sense, which provides any basis for believing that sodomizing someone once induces more "severe mental pain" and/or "prolonged mental suffering" than waterboarding them 183 times? Where they are repeatedly brought to the "verge of death and back again?"

And with regard to "sexual component," that's part of what we did, when we used nudity and sexual humiliation. So it's incorrect to imply that there was no "sexual component" in what we did.

And if you think "sexual component" is a key issue, I'll be glad to remove the electrodes from your genitals, and instead apply them to your earlobes, or your toes, or your armpits, or your tongue, or your eyelids, or your nostrils. Or maybe all at the same time. Now there is no longer any "sexual component." Feel better? Are you now happy to say that when some future enemy does this to an American, that what they're doing is not torture, but rather just an 'enhanced interrogation technique?'

it isn't clear that shocks that don't amount to 'severe pain/suffering' would be able to have the same type of coercive effect waterboarding would


I don't see what you're getting at. According to Yoo, it's fine for me to apply electric shock to you, as long as I don't cross the threshold of "death, organ failure, or serious impairment of body functions." He says when I do that, what I have done is not properly called torture. Are you claiming that he's correct, and that we should also apply that standard when a future enemy applies electric shock to an American?

What if I'm that future enemy, and you're the captured American. And let's say that aside from attaching electrodes to various sensitive parts of your body, I also combine this with other techniques. I shackle you in a standing position, with your arms elevated, so you are continuously deprived of sleep, and you can't sit. You are wearing only a diaper, and being fed a partial starvation diet. You are exposed to temperature extremes. Let's say I keep you this way for, say, 180 hours. While applying electric shocks. (Notice that aside from the shocks, this is a description of what we actually did.) Notice that I haven't crossed Yoo's threshold, right? So are you perfectly happy to refrain from accusing me of torturing you? Are you perfectly happy to accept my claim that I have only been using 'enhanced interrogation techniques,' approved by the USA, a country that has a long history of lecturing the rest of the world about human rights? And Bush said repeatedly that the US doesn't torture. So since I am adhering to the US standard, then I couldn't possibly be considered a torturer, right?

Also, I don't know what you mean by the "coercive effect" of waterboarding. We were told repeatedly that waterboarding is so magical that we only needed to do it three times. But that was a lie. If we believed our own propaganda about how magical it was, why did we use the waterboard 183 times with one person?

So I don't understand what claims you're making about "coercive effect," or how you claim that such a thing is measured or evaluated.

this isn't just a trivial question considering that those who support waterboarding as not reaching the level of torture always point to SERE


Again, I don't know what you're getting at. Yes, "those who support waterboarding as not reaching the level of torture always point to SERE." Even though this embodies a lie, because it amounts to claiming that CIA only did what we do at SERE. Wrong.

If you're simply parroting the exact report from the memo then how exactly have you disproven the Fox report as you claim?


Because Fox made a claim exactly contrary to "the exact report from the memo." Fox said KSM was not waterboarded 183 times. But "the exact report from the memo" is that KSM was waterboarded 183 times. Do you notice a slight contradiction?

Considering that the comments were from an relevant administration official how exactly did you disprove them.


All that the "relevant administration official" said was that KSM was waterboarded for "seconds" at a time. First of all, how many seconds are there in "seconds?" 10? 50? 100? Those are all quantities of "seconds." So the statement from the "relevant administration official" means this: nothing.

And just because he was waterboarded for "seconds" (whatever that means) at a time, how does that provide a basis for Fox to claim that KSM wasn't waterboarded 183 times? Answer: it doesn't. Especially because all along we've been told that waterboarding is something that lasts for only "seconds."

The report than contextualizes what 'A' means based upon the statements of a US official and you decide not to accept it because you've clearly already assigned what you feel the words should mean.


It's not that I've "already assigned what [I] feel the words should mean." It's that I don't have amnesia, and therefore I can recall the way the government has been using these words all along. The meaning has not been "assigned" by me. It's been "assigned" by the people who have been lying to us. Now that they've been caught in the lie, they are trying to move the goal posts (and you excuse this by calling it 'contextualizing,' a nicely Orwellian expression).

I still haven't found where you addressed the red cross reports. Feel free to point me to them.


I already did. That link has already been posted.

public opinion clearly is divided on whether waterboarding is an acceptable interrogative technique


Then maybe the public should change the law. Law and public opinion are two different things. We are supposed to enforce the law based on the law, not based on public opinion. The public gets involved in the law when it votes, and when it sits on a jury. Law enforcement is not supposed to be a referendum. You are promoting "a very dangerous idea."
5.8.2009 8:32am

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If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.