an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Using "Legal" Opinions to Engage in Bald-Faced Hypocrisy About Torture
"We do not torture," declared President Bush in 2005.
A Justice Department memo begins with this declaration: “Torture is abhorrent both to American laws and values and to international norms.”
White House Press Secretary Dana Perino insisted about prisoners that “We don’t torture them.”
OLC spokesman Brian Reohrkasse said he could not comment on classified memos but insisted that they are consistent with the administration’s “strong opposition to torture.“
CIA Director of National Intelligence Mike McConnell repeated that “the United States does not engage in torture. The president has been very clear about that.”
More such statements have been made in the past several years by Bush Administration officials.
Meanwhile, reports indicate that prisoners have been subjected to “slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions;…waterboarding.” (NYT Oct. 4, 2007; above quotes also from NYT).
How could we repeatedly insist that “WE DON’T TOTURE” while engaging in forms of torture all along?
Easy: We had secret Justice Department memos which, relying upon serious and detailed legal analysis, concluded that “NOTHING WE DO IS TORTURE.”
I feel your frustration. This is what is so confounding about the governmental protests of virtue and fidelity to international norms (and quite eloquent and reasoned when you have people like Bellinger appearing everywhere it seems: the very model of calm virtue and legal propriety).
Yet the reports, documented, exist in abundance that detainees under our power were treated horrifically, and no matter what authority you look to, be it the War Crimes Act as amended, or the MCA, or the Detainee Treatment Act, or the Torture Victim Protection Act, or the GC, or the ICHR, and so forth and so on, the thrust is to define and decry such abuses. There is no developed country on this planet that I know of that codifies and legalizes torture. Everyone abjures it. Yet we did it, our legal experts find windows of vagueness to exploit and we parse definitions to claim we didn't.
And as you should know by now; these torture deniers are completely comfortable sleeping at night because:
You cannot objectively define torture. "other circumstances" must be balanced with our acts. We can define our acts with language different from which existing law precludes our acts (see "apples and oranges"). Article II of the US Constitution. Fuck you, it's a secret.
well pardon me .. but as a rather simple old warhorse i'm perhaps not so burdened by the variations of definition ..
we can paint black stripes on a white horse all day and night ..and yet readily see the result is NOT a zebra.
imo .. the fact of illegality is clearly demonstrated by the perpertrators of redefinition having included for themselves a blanket pardon in the language of the MCA .. if they truly do not/did not believe they have/had done anything illegal under the law .. then why construct their defense within the MCA as they did ..
to the contrary .. they did in fact know .. imo .. that they were painting black stripes on a white horse and declaring it a zebra .. their entire construct was to create an illusion ..
it is inconceivable to me that any normal person .. much less one highly educated in "the law" could read the GC requirements .. coupled with the UNCAT requirements .. coupled with the appropriate cites of US statute law ..and not see very plainly on the face of it that the the type and level of abuse engendered and fostered by tweaking the definitions of "torture" simply fail to alter the fact that the forms of abuse visited on detainees in our custody change to something other than a violation of the standards as published ..
obfuscation .. like painting stripes on our horse .. doesn't change the fundamental of cracked sternums .. broken ribs .. people hospitalized for hypothermia ..and even deaths at the hands of "extreme' interrogators ..
it's a polite fiction hiding behind deliberately garbled definitions .. but it doesn't change the reality of what took place ..and imo .. it certainly can't escuse it .. nor does it make what is clearly illegal potentially "lawful" ..
these belated justifications and obfuscation of definitions are plainly attempts by the administration to find the right pixie dust to sprinkle on their painted horse to make acceptably pass for a zebra ..
imo ..plausible deniablilty needs be constructed before the fact in order to be effective ..