June 14, 2004

Defining Torture Down

DOJ's Office of Legal Counsel wrote a highly depressing memo for White House Counsel Alberto Gonzalez which, in turn, led to this memo to POTUS.

In two PDF attachments, here and here, the WaPo has made public the memo.

A few general points.

Whoever marked up the document that the WaPo got their hands on is not a friend of the Administration. The highlighted areas are, typically, those most damning to the White House (UPDATE: Tom Maguire informs me the WaPo's Dana Priest marked up the memo; according to a Washington Post chatroom discussion).

Second, I was surprised to see a blatant typo in a legal memorandum addressed to the White House counsel. Sloppy!

Third, and much more important than one or two, the memo is repugnant and showcases why so many authoritarian brutes have law-related educational backgrounds (think Milosevic, for instance).

The analysis is chillingly clinical--with nary a thought for the moral ramifications of what is being recommended. No wonder intellectuals like Solzhenitsyn pity a society that is overly emasculated by the rule of law--with little by way of spiritual moorings.

One can rationalize so much wanton cruelty under the cover of expansive and/or creative interpretations of statutory and/or common law (you'll see how below)...

I don't say this as a naif. I'm a corporate lawyer--I do this type of thing for a living (no, not writing how-to-legally-torture memos--but scrutinizing finance documents with utmost scrutiny day in, day out).

And, as regular readers of my blog know, I support pretty robust prosecution of anti-terrorist actions worldwide.

Neverthless, I find this memo disturbing on a variety of levels.

It's not particularly convincing, for one thing, simply on a legal analysis level.

It's, as mentioned above, devoid of any moral compass. And it has worrisome connotations regarding the breadth of the Abu Ghraib scandal.

And, of course, it represents yet another stain on the U.S.' reputation as primary avatar of human rights, I fear.

Can Abu Ghraib Democrats (the flip side of 9/11 Republicans) be far behind?

Anyway, back to the memo.

There are five main parts to the memo.

Part I deals with defining (down) standards of conduct as set out under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment as implemented by Section 2340 of the US Code.

Part II focuses more on the Convention itself (rather than the implementing statute in the USC).

Part III is a chilling (that word again!) analysis of the Torture Victims Protection Act, 28 USC Section 1350.

Part IV looks to best practices re: sensory deprivation tactics in places like 'time of troubles' era Ireland, 'intifada' Israel and so on.

Part V--USC 2340(A) is deemed (surprise!) likely unconstitutional as an infringement on the President's GWOT-era duties.

And, oh yeah, there's a Part VI--how necessity or self-defense can be used as a defense against a violation of 2340(A) (a particularly gross little section of which more later).

Part I: Through some pretty shoddy analysis, the DOJ lawyers conclude that for torture to rise to a threshold proscribed by Section 2340 of the USC--it must "be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, even death." [my emphasis]

From where is such comfort drawn? The drafters of the memo pluck out statutory law dealing with "severe pain" in the context of emergency medical conditions necessitating provision of health benefits!

And, hot damn, "severe pain" in this context, for a "prudent lay person," would involve, shall we say, near death experiences. This is not only morally defunct analysis when exported into parsing acceptable thresholds for savage tortures--but it's also just plain crappy legal analysis.

Imagine what David Boies would make, for example, of the use of a 'severe pain' definition used in the context of statutory laws dealing with health benefits for emergency medical conditions being shoehorned into the context of interpreting torture law!

There is also a long (and sadly underwhelming) discussion on intent. You see, per Section 2340, "specific intent" to cause "severe pain" needs to be shown. But, please note, the "infliction of such pain must be the defendant's precise objective." [emphasis added]

If the defendant was merely reasonably likely to know severe pain was in the offing, this scummy memorandum goes on, this is but general intent.

See 'ma, no violation of 2340 (I wasn't quite sure these blows to the head would kill the guy)!

Look, I went to law school. I know that mens rea is a big deal.

But these are pretty tortured (pun intended) arguments. And, even if you want to argue that the legal analysis is at least arguably sound (if aggressive, but hey these are special times!)--they are nevertheless shameful and repulsive, imho.

Oh, despite all the difficulties in establishing specific intent, what if (God forbid!) it's proven anyway?

Well, helpfully, the crack-team at DOJ spells out the defense. If the defendant had a good faith belief that the acts perpetrated wouldn't be violative of the statute--then, hell, he lacks the mental state required for his actions to constitute torture and, voila, no prob! (Translation: Sh*t, man; I didn't know the dog would, like, bite! And so on.)

How about use of drugs (one of four 'predicate act' examples in the memo)? Not suprisingly, a wide berth (in terms of acceptable usage) here too.

Such use of drugs, to constitute torture, must rise to the level of "disrupting profoundly the senses or personality" (yeah, that means more than a particularly good joint washed down by a Napa red on the veranda in the 'burbs).

Not only must such profound sensory distortions be in the offing--the defendant must consciously have "designed the acts of administering the drug to induce such an effect" (whatever that means).

And what example is used to showcase what might constitute such a grave, sensory impact?

A full-blown "drug-induced dementia," for one. Helpfully, we are allowed that the onset of "brief psychotic disorder" would torture make too (the writers probably debated the "brief" part, one suspects, only relunctantly inserting it after fevered debate...)

I'll spare you more of this (though I could go on).

But Part I of the memo is drawing to a close, and I can't sum it up better than the memo writers themselves conclude in said document:

"...Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in the loss of significant bodily function will likely result."

As I said, disgusting.

We will have more on Parts II-VI in the coming days. Some of it, in my view, is worse than what I've summarized per Part I.

Deep down, I know this President can stand up, loud and clear, and scream from the bully pulpit that this was all FUBAR.

Sure, we can entertain Alan Derschowitz like suggestions to have torture warrants issued under exceptional circumstances when we might have a guy who knows where and when the next 9/11 is going to happen and won't talk.

And he's just gotta speak.

Let's, by all means, have a way to help make that happen.

But to write memos like these (meant for general application and going forward scope rather than specific exceptions when the Republic is seriously imperiled); memos that define torture down so amorally, is (I like to think) un-American. Even in the context of particularly perilous GWOT-times.

Don't you agree?

Posted by Gregory at June 14, 2004 09:03 PM
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