Heads, sticks, and prosecuting torture memo authors.

( – promoted by buhdydharma )

Ladies and gentleman, if I may have your ear.

The DoJ is making noises like they will not prosecute the people who wrote the memos that “rationalized” using torture. (See Edger’s diary.) This is tragic because, with the exception of the high-ranking Bush officials who conspired to make these opinions the rule of law, the memo writers are the most complicit criminals on the list. They were the sleight-of-hand smiths who made the torture program possible. There are few involved who can approach the vulgarity that these lawyers attained.

We cannot take these prosecutions off the table and self-consistently seek justice.

Please have a look at Section 2340-2340A written by Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel:

That statute prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”

The statute also prohibits certain conduct specifically intended to cause “severe physical suffering” distinct from “severe physical pain.”

There are two things to consider above:

First the note invokes the concept “equivalent in intensity to the pain accompanying serious physical injury…even death.” The sleight-of-hand is that Levin cannot ask a dead guy how much it hurts, so he is left to define “pain” anyway he chooses. We’ve seen this tactic before from Supreme Court Judges who emerged from the OLC, which I’ve written about previously here:

I want to start at the Office of Legal Council. Perhaps, when government officials do not like what the law means, they visit this office for clarification. To find what flavor of contortion sometimes comes from this office, consider that William Renquist and Antonin Scalia are both alumni. But the important point is that the resulting opinion from this office is a binding precedent, and must be honored by all cabinet departments.

I want to demonstrate what I think is going on by using as an example the opinions of their star alum — Justice Scalia. So you’ll be convinced that Scalia uses this trick frequently, please take a moment and google “Scalia” with “1789” before you read the Justice Tony Tutorial below.

                              Aside: The Justice Tony Tutorial

Justice Scalia is fond of invoking the year 1789 when he interprets the constitution. He thinks that proper precedent requires that we view the constitution with a lens that belonged to a common person who lived in the day when the founding document was written. Original intent is Scalia’s honored principle.

The critical point is that we cannot ask anyone who lived in 1789 what the constitution means to them. This is no subtlety: it leaves Justice Scalia — with very little additional little sleight of hand necessary — able to interpret the constitution any way he chooses. Scalia uses this tactic because it is effective, and because the flaw is not obvious to the casual observer.

The key phrase that provides the smoke and mirrors is “original intent.”

I want to suggest that John Yoo and his friends used Scalia’s 1789 trick to finesse torture policy — and this pattern generalizes nicely with respect to how they finessed other abuses, as well. With respect to torture, they play sleight of hand with the concepts of “specific intent” and “pain.”

The OLC uses this tactic again and again — and in spite of the fact that Scalia uses this tactic to create his strict constructionism, he did not invent it. It is ubiquitous — which is why I’m dragging Tony into the discussion. These torture memos grew from the same disingenuous root. What is most important, though, is that the resulting opinion from this office is a binding precedent, and must be honored by all cabinet departments.

Second, we are conflating the concepts of “pain” and “suffering” in a way that it is not really possible to inflict either with the techniques the former administration wanted to use for torture — particularly the waterboard. I cannot explain better than this fellow did here:

Somehow the W administration cannot imagine that pouring water on a detainee can inflict pain — and they say that the duration of waterboarding iterations is short enough that it could not cause suffering. Therefore, waterboarding is not torture.

Folks, waterboarding is systematic, sub-lethal suffocation. The water isn’t the point. It’s the suffocation that hurts. That, and the threat of imminent death. When my government uses wordsmithery to tell me that this is not torture, I take it personally.

The wordsmiths must be prosecuted.


    • rb137 on May 6, 2009 at 19:35


    I’ll crosspost to Edgar’s site once I chill out and edit to make this diary a little less ranty and a little more rational.

  1. executive to torture.  Such a very simple statement but a scary one indeed.

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