Balkinization  

Monday, October 29, 2007

Sorry, Ben, But Judge Mukasey Can (and Should) Answer the Question

Marty Lederman

Over in the New Republic, Ben Wittes agrees that it's virtually inconceivable that waterboarding is not torture, but nevertheless argues that Judge Mukasey would be within his rights in refusing to say so in response to Senate questions:
It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.
I don't mean to sound ungrateful -- Ben has some awfully kind, no doubt unwarranted, things to say about me in his column -- but I think Ben is mistaken here.

Ben's argument, in essence, is that Mukasey cannot responsibly repudiate OLC legal advice that he has not seen. I think that's mistaken, for several reasons.

First, as I've explained previously, there's no real risk of criminal exposure for the CIA personnel who waterboarded based on OLC's advice. Second, the analysis should not be classified in the first instance -- as I've argued several times previously here, there's no real justification for keeping secret our government's official legal advice about whether waterboarding is lawful or not. But third, and be that as it may, there's nothing stopping DOJ from showing Judge Mukasey the OLC opinions now. Nothing. (Presumably he has the requisite security clearances from his work on terrorism trials -- or could obtain such clearances ASAP.)

Fourth, the basic core of the OLC advice about waterboarding is already public. It can be found right here, in the final paragraph of section II(2) of a public OLC opinion, a paragraph that was obviously written with waterboarding specifically in mind, and one that is manifestly and egregiously wrong as a matter of law on the term in the torture statute most pertinent for these purposes: "severe physical suffering." I've already written at length on this point. I'll reprint my analysis below. (In retrospect, my rhetoric there was a bit overheated -- but forgive me, I was outraged.) The bottom line is that the OLC legal analysis in support of waterboarding is indefensible -- I think Ben would agree -- and Judge Mukasey should simply say so.

Which brings me to the final and most important reason why Judge Mukasey can answer the question -- even if DOJ does not provide him with the classified OLC memos. There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment. After all, as H.L.A. Hart stressed, even legal rules that appear straightforward contain seeds of ambiguity, and raise difficult questions of application. Does a "No Vehicles in the Park" law prohibit a baby stroller? A statute of a tank? Roller skates? Bicycles? A wheelchair? An ambulance? (See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958); Lon Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 537 (1994); Pierre Schlag, No Vehicles in the Park, 23 Seattle U. L. Rev. 381 (1999).)

Therefore, some interpretive principles are invariably necessary, and there will be close cases. That's true even of the Torture Act and Common Article 3's ban on "cruel treatment and torture."

But if, in parsing the "no vehicles" rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that's a pretty good clue that you need to find yourself some new interpretive principles. So, too, if one's interpretative principles and legal analysis of the terms "torture" or "cruel treatment" lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis. Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise. Naturally, then, the U.S. itself has long considered waterboarding to be torture and a war crime -- there was no dispute about this from at least 1901 until 2002 -- and if our enemies used such a technique on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of unlawful torture.

Waterboarding is the souped-up Corvette of the torture ban. And it would simply degrade public discourse, and the ordinary use of language, if Judge Mukasey were to continue to claim that whether waterboarding is torture is a difficult question that can't be answered unless and until he reviews the underlying OLC memos.


My previous explanation of why waterboarding is torture and how OLC concluded otherwise:
[W]aterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

But I think I've figured out what OLC's "reasoning" was. The key is found in the replacement torture memo, the one issued in December 2004 to supersede the notorious August 2002 torture memo.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as 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"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

Comments:

Is there any previous example of Congress asking an AG nominee to provide an advisory legal opinion on an issue which has not been addressed by courts as the price of a nomination vote?
 

The 2004 memo could have begun and ended with footnote 18:

Despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective, consistent measurement. As one publication explains:

Pain is a complex, subjective, perceptual phenomenon with a number of dimensions--intensity, quality, time course, impact, and personal meaning--that are uniquely experienced by each individual and, thus, can only be assessed indirectly. Pain is a subjective experience and there is no way to objectively quantify it. Consequently, assessment of a patient's pain depends on the patient's overt communications, both verbal and behavioral. Given pain's complexity, one must assess not only its somatic (sensory) component but also patients' moods, attitudes, coping efforts, resources, responses of family members, and the impact of pain on their lives.

Dennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates, Sept. 1993 (emphasis added). This lack of clarity further complicates the effort to define "severe" pain or suffering.


It would be far more accurate to state that, given our absolute inability to objectively quantify pain, DOJ (or the AG nominee) can not be expected to objectively interpret and apply the CAT to any interrogation technique including waterboarding.

This whole exercise has a surreal "how many angels can dance on the head of a pin" feel about it.
 

More that surreal feeling of watching someone talk about angels dancing, whilst shoving hot pins into a helpless detained German with the wrong last name.

For that matter, what is life and can we really say that killing someone is murder if the soul lives on? Ya - meet - Da.

Really, the saddest thing is the observation that no one has to realistically be worried about being punished for engaging in torture of kidnapped protected persons.

If that's what we've become as a nation and that's what our system of justice has become as an institution, it really doesn't matter what Mukasey says or does. It doesn't matter if they want to stick a child-predator cannibal in the slot if we really are at that point.

And it looks like we are.
 

Prof. Lederman:

Naturally, then, the U.S. itself has long considered waterboarding to be torture and a war crime -- there was no dispute about this from at least 1901 until 2002 -- and if our enemies used such a technique on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of unlawful torture.

But it's not. It's just a neat and nifty way of effectively interrogating someone (it would be kind of pointless, after all, to just be giving people baths for the fun of it) that leavse no marks.... And, after all, that's just what the top experts in 'interrogation' have been looking for for quote a while. No rubber hoses to the soles of the feet, nosirree. You can do this free and clear of any visual feedback as to the ugliness of your soul ... and sleep like a baby at night (until the Terra-ists start "fighting us here" and decamp under our beds at eventide....)
 

[W]aterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.


None of these generations old military cases applied the language used by the CAT. In fact, these defendants were not accused of violating any statutes prohibiting torture and no statutory definition of torture was used at all by these military courts. Instead, the courts came up their own subjective opinions of what was and was not torture under military law.

For example, the military records of the 1901 Glenn courts martial indicate that the sole charge was conduct to the prejudice of good order and military discipline, which is the military catchall disciplinary provision that would not be constitutional if applied to civilians. Concluding that the US "cannot afford to sanction" the "water cure," Glenn was slapped on the wrist by being suspended from command for all of a month and fined $50 (not sentenced to 10 years prison as HRW claims). There was no discussion of the "water cure" inflicted "severe pain" or pain of any kind. Consequently, this case is useless as a guide to applying the CAT's definition of torture.

The war crimes prosecution of the Japanese similarly did not apply any torture statute or definition. Rather, the military tried the Japanese for generic war crimes and offered a factual basis which commingled waterboarding among far more serious acts all the way through murder. There was no discussion of the "water cure" inflicted "severe pain" or pain of any kind. Consequently, these cases are similarly useless as a guide to applying the CAT's definition of torture.
 

Bart, the sophistry in this debate is all on your side. ANY form of intentional abuse is torture, and anyone who would claim otherwise is just a liar and a hypocrite trying to justify the use of torture. There's no need to split hairs over the meaning of the torture statute: assault and kidnapping are crimes too.
 

"Bart" DePalma and his friggin' "advisory opinion" crapola:

Is there any previous example of Congress asking an AG nominee to provide an advisory legal opinion....

Outside of the fact that you're wrong even there, "Bart", the so-called "advisory opinion" rule applies to courts under the Article III "cases and controversies" language. In fact, it is one of the major jobs of lawyers to provide "advisory opinions".... Ummm, not that you'd be expected to know that, "Bart"....

Cheers,
 

More "Bart" horse-apples explained for the sentient:

"... Consequently, assessment of a patient's pain depends on the patient's overt communications, both verbal and behavioral. Given pain's complexity, one must assess not only its somatic (sensory) component but also patients' moods, attitudes, coping efforts, resources, responses of family members, and the impact of pain on their lives."

Dennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates, Sept. 1993 (emphasis added).

It would be far more accurate to state that, given our absolute inability to objectively quantify pain, ...


... we should just say it doesn't exist. What we don't know won't hurt ... ummm, us, at least.

Cheers,
 

Bart, the sophistry in this debate is all on your side. ANY form of intentional abuse is torture, and anyone who would claim otherwise is just a liar and a hypocrite trying to justify the use of torture. There's no need to split hairs over the meaning of the torture statute: assault and kidnapping are crimes too.
 

Arne, Bart: Please, focus on the post and the issues, not on Bart. The fact that he ignores the statute's prohibition on severe physical suffering, and that he concludes that "DOJ (or the AG nominee) cannot be expected to objectively interpret and apply the CAT to any interrogation technique," is all one needs to know about Bart. Move on.
 

marty:

Arne, Bart: Please, focus on the post and the issues, not on Bart. The fact that he ignores the statute's prohibition on severe physical suffering, and that he concludes that "DOJ (or the AG nominee) cannot be expected to objectively interpret and apply the CAT to any interrogation technique," is all one needs to know about Bart. Move on.

Ooooo, that hurt...

:::rolls eyes:::

You claimed that it is somehow obvious that the definition of torture in the statute includes waterboarding.

My point was that, if you cannot objectively define severe pain, you cannot objectively define what torture under the language of the statute.

Your observations concerning physical suffering do not change this fact in the least.

In their common usage, the terms "pain" and "suffering" are essentially analogous. Suffering is simply the state of experiencing pain. Consequently, because one cannot objectively define "severe pain," one similarly cannot objectively define the "severe pain" being suffered.

In short, there is no need to follow you down your rabbit hole concerning whether DoJ properly interpreted the term "suffering" to encompass the passage of time and I did not waste my time doing so. However, since you brought it up again like a dog gnawing on his favorite bone, I will be pleased to address your argument.

DoJ makes a perfectly reasonable analysis of the terms pain and suffering in its 2004 memorandum. "Pain" is a sensation and "suffering" is the state of experiencing the sensation of pain, which implies the passage of some measurable length of time. The use of the term "prolonged" is as good a term as any other for the passage of time.

As is your wont, you simply dismissed the DoJ argument out of hand without providing a reasonable alternative to the passage of time which distinguishes the terms pain and suffering and makes sense of Congress' use of the disjunctive.

That, Marty, is all one needs to know about you.

As is also your wont, I expect you to shut down the comment section to avoid having to address my argument.
 

It seems to me to be quite ludicrous to argue that a technique that so effectively produces such acute sensations of terror and imminent death that the victim cannot last more than a minute or two is not torture because the sensation did not last long enough...
 

It also defies belief that someone would argue that a simulated drowning cannot be objectively quantified as severe pain given the guttural, instinctual terror it has produced in every victim. When interrogators are impressed that KSM (I think) lasted something like 3 minutes, you have all the evidence you need to know as to whether waterboarding "objectively" inflicts severe pain.
 

Prof. Lederman:

As per your wish, I will defer WRT the torturous and prolonged arguments of "Bart"; it is true they've been addressed before and require restatement to only 24% of the potential readership.

My first comment addressed your analysis of what the revised opinions concluded, but I went to motive: They are writing it out because it "works"!!! I think that Mukasey is also reluctant to dismiss waterboarding as torture a priori for similar reasons; he's shown a proclivity for ... ummm, "expediency" ... in previous rulings even as a judge: "Round 'em up and sort 'em out later" ... and "I don't see any marks <*wink-wink*> come to mind. I should note that this "expediency" is the cornerstone of pretty much all 'legal' defences of such practises. This needs to be pointed out. While interrogation is the purpose of such techniques, it is also the bellwether for the 'legality' of such: There is no doubt that such techniques would be absolutely condemned as unarguably illegal by nearly everyone except the most psychopathic and/or sociopathic personalities if engaged in 'gratuitously' or for 'pleasure' (if done for purposes of 'punishment', that would be a different issue, but then the Eighth Amendment would seem to be an absolute bar). So why, when the purpose is "intelligence gathering", are the same procedures 'legal'? I'd reiterate what's been said by many: There is no exception in the law of war and in the Constitution or U.S. statutory law for "intelligence gathering" as being a permissible exception to the ban on torture/CIDT.

Cheers,
 

This comment has been removed by the author.
 

mike said...

It also defies belief that someone would argue that a simulated drowning cannot be objectively quantified as severe pain given the guttural, instinctual terror it has produced in every victim. When interrogators are impressed that KSM (I think) lasted something like 3 minutes, you have all the evidence you need to know as to whether waterboarding "objectively" inflicts severe pain.

Terror is not physical pain. Therefore, you have to determine whether it falls under the statutory definition of "severe mental pain and suffering," which is defined in pertinent part as "the prolonged mental harm caused by or resulting from... the threat of imminent death..."

Because waterboarding is brief and transient, it does not appear to fall under this definition.

This is why Marty is attempting to argue that waterboarding causes severe physical suffering which does not require the passage of time. The problems with Marty's argument are two fold:

1) Severe physical suffering is the state of experiencing severe pain and water boarding does not cause significant physical pain.

2) Because suffering is an ongoing state, this implies a passage of time. Water boarding is very brief.

Relying upon the CAT statute is a losing proposition. No one can objectively define what the statute covers and multiple OLCs and other government attorneys have tried. Those who claim otherwise are simply being disingenuous.

If you think that waterboarding or any other technique should be included as a torture forbidden by the CTA, then simply argue that Congress should amend the definition of torture to expressly include them.
 

That water-boarding is "torture" as well as "cruel" treatment and even a tactic to produce "terror" in violation of international law -- as are many other tactics authorized by President Bush, former Sec. Rumsfeld, et al.; and abetted by various memo writers -- see, e.g., Paust, Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambridge University Press 2007), available at www.cambridge.org/us
JJP
 

Professor Lederman, would you please stop claiming that it is unconstitutional to convict a person for conduct engaged in as a result of reasonable reliance on an OLC opinion?

Nothing in the text or history of the Due Process Clause requires an advice of counsel defense. In fact, with respect to malum prohibitum offenses, no mental state is required at all, whereas with malum in se offenses, the only mental state required is negligence as to the FACTUAL elements. Ignorance of the law is never an excuse, and this was established at the time the Due Process Clause was enacted and is still the case now.

Further, there isn't any special doctrine that makes the OLC constitutionally any more important than any other lawyer. The OLC, just like any other lawyer, may provide bad legal advice. It may provide inapplicable legal advice. It may provide legal advice that doesn't effectively discourage illegal conduct.

In all such cases, we hold clients responsible when they go ahead and break the law after receiving lousy legal advice.

The principle that there is some sort of Due Process violation here is nothing more than wishful thinking by people in the OLC.
 

Terror is not physical pain.....

"When I use a word, it means just what I choose it to mean -- neither more nor less."

"The question is, whether you can make words mean so many different things.

"The question is, which is to be master -- that's all."

From the "master" himself, C.L. Dodgson.

But then: If the point is [only] to cause terror, wouldn't the perpetrator be a terrorist?

Cheers,
 

Terror is not physical pain. Therefore, you have to determine whether it falls under the statutory definition of "severe mental pain and suffering," which is defined in pertinent part as "the prolonged mental harm caused by or resulting from... the threat of imminent death..."

Because waterboarding is brief and transient, it does not appear to fall under this definition.


No. That does not follow. If the (transient) physical pain (or the transient threat of death) results in "prolonged mental harm" (e.g., PTSD), then it would seem that even this definition is satisfied under this very language. There is no requirement in the language that the "threat of imminent death" be "prolonged". English 101.

Cheers,
 

Arne Langsetmo said...

BD: Terror is not physical pain. Therefore, you have to determine whether it falls under the statutory definition of "severe mental pain and suffering," which is defined in pertinent part as "the prolonged mental harm caused by or resulting from... the threat of imminent death..."

Because waterboarding is brief and transient, it does not appear to fall under this definition.

arne: No. That does not follow. If the (transient) physical pain (or the transient threat of death) results in "prolonged mental harm" (e.g., PTSD), then it would seem that even this definition is satisfied under this very language. There is no requirement in the language that the "threat of imminent death" be "prolonged".


You make a good point so far as it goes.

However, there is no science of which I am aware which demonstrates a statistically significant causal relationship between 1-2 minutes of water boarding and PTSD or any other prolonged mental harm. Unsubstantiated claims by "experts" are not science, so do not even go there.

It appears that the only mental harm is the 1-2 minutes of panic during the waterboarding, which cannot be fairly called prolonged.
 

Dilan said...

Professor Lederman, would you please stop claiming that it is unconstitutional to convict a person for conduct engaged in as a result of reasonable reliance on an OLC opinion?

Nothing in the text or history of the Due Process Clause requires an advice of counsel defense


This is why I have been arguing that Congress needs to specify what is prohibited in the legislation. All an OLC, DoD or CIA attorney can do is guess whether an interrogation technique or combination of techniques are allowed by the CAT and the war fighters relying upon that advice can be imprisoned if some later prosecutor and court disagrees.

The present law does not address many of your concerns about the techniques being used and does not give our war fighters any guidance as to what they should be doing.
 

Unsubstantiated claims by "experts" are not science, so do not even go there....

"... and there is no global warming and the earth could be 6000 years old, we really don't know...."

When you get your name on a peer-reviewed, published paper, "Bart", I'll listen to what you have to say about what "science" is and isn't....

Cheers,
 

"Bart" DePalma:

All an OLC, DoD or CIA attorney can do is guess whether an interrogation technique or combination of techniques are allowed by the CAT and the war fighters relying upon that advice can be imprisoned if some later prosecutor and court disagrees....

Hell, it's worse than that. Because everyone is required to obey the entirety of Title 18, Part 1 (all hundred or so chapters of it) under threat of fines or even imprisonment, and most of us don't even have the luxury of a full-time in-house legal counsel staff to advise us as the intricacies and nuances of this mass of law. And don't even talk to me about state codes.... It's getting to the point where I'm afraid of even getting out of bed....

Cheers,
 

For those that would like to discuss whether the definition of "torture" needs further refinement, there's now a new blog spot for doing just that. Take it away, folks. Please. Yes, you too.

Cheers,
 

Post a Comment

Older Posts
Newer Posts
Home