Balkinization  

Wednesday, April 22, 2009

Reasons to Infer that the OLC Torture Memos were Not Issued in "Good Faith"

Brian Tamanaha

When determining whether a potential criminal suspect has violated the law, would you rely entirely upon the assurances of that person that he did not commit the crime?

Of course not! Any lawyer who does this would prima facie be acting in bad faith. The recently released torture memos do precisely that.

The response I received to the previous post exposing the empty circularity of the analysis in these memos suggests that a clarification of the core point would be useful. It is essential, first off, to distinguish the factual components of the inquiry from the legal components of the inquiry, and to see how they were treated by OLC lawyers.

The CIA asked the OLC to render an opinion on the legality of a set of interrogation practices (sleep deprivation, waterboarding, stress positions, etc.). This inquiry was presented (at least on the surface) as a request for the OLC’s independent legal assessment of whether the practices violate the anti-torture statute.

This inquiry had two aspects:

1) the interrogation practices, with stated limitations (and the CIA’s assurance that interrogators kept to the limits); and

2) whether these interrogation practices violate the anti-torture statute.

When issuing the legal opinion, at bottom, the OLC had to determine whether the interrogation practices “intentionally inflict severe physical or mental suffering”—the standard in the anti-torture statute.

There is a legal and a factual component to the OLC inquiry. The legal component requires specifying what "severe suffering" means for the purposes of the torture statute. [Most of the criticism of the torture memos focuses on this legal aspect—objecting that Yoo and Bybee ratcheted the standard up to an absurdly high level (suffering equivalent to organ failure or death); this legal position was subsequently withdrawn by the OLC as faulty.]

The factual component is just as important as the legal part. To render an opinion on the legality of the interrogation practices, the OLC must evaluate the consequences of those practices against the legal standard. To engage in this evaluation, the OLC must first determine the extent of suffering inflicted by the interrogation practices.

Now query: Can the OLC rely entirely on the CIA’s own assurances about the extent of suffering inflicted by these practices?

No way. Not in good faith. Two reasons stand out:


First and foremost, the CIA wanted to apply these interrogation practices and had already used these practices, so it had powerful reasons to understate the actual suffering caused by these practices. An admission by the CIA that the practices inflict “severe suffering” would be tantamount to an admission of criminal conduct. For this reason, no OLC lawyer conducting an independent legal analysis, even if sympathetic to the aims of the CIA, could rest exclusively upon the claims of the CIA about the extent of suffering inflicted by the practices.

Second, it was evident at the time that the interrogation practices might well constitute torture—after all, waterboarding has been counted as “torture” for centuries. Everyone understood that the CIA’s worry about criminal prosecution is what prompted the inquiry. It was obvious at the time that a legal opinion from the OLC concluding that the interrogation practices were “not illegal” would provide a strong defense for the interrogators, and would allow such interrogations to continue. Ultimately, as all parties knew, at stake was the momentous question of whether U.S. intelligence agents would engage in illegal conduct with assistance from the Department of Justice. For these reasons, an OLC lawyer engaging in independent legal analysis would make damn sure he had a solid factual basis for knowing how much suffering these interrogation practices inflicted.

Now it is plain to see why the legal memos manifestly engage in bad faith analysis.

The memos explicitly acknowledge that “there is no evidence” at all about the combined effects of these interrogation techniques. The OLC lawyers admit: “We don’t have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.” (March 10 memo). Following this admission, the only appropriate finding is that the OLC lacked a sufficient basis on which to sanction the legality of the interrogation practices. Nonetheless, the OLC went ahead and issued an official legal opinion that “we do not believe that the use of the techniques in combination as you have described them would be expected to inflict ‘severe physical or mental pain or suffering’ within the meaning of the [anti-torture] statute.”

This is manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. The OLC legal opinion, to put it more bluntly, is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability.

This passage from the 10 March memo is even more explicit:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

The OLC thus issued a legal opinion sanctioning the legality of these interrogation practices based entirely upon the promise of the potential criminal suspects that they would not violate the law when engaging in these practices.

What’s bizarre about the analysis is that the CIA purports to be asking the OLC for an opinion about whether the interrogation practices are legal, whereupon the OLC concludes that they are “not illegal” by pointing to the assurances of the CIA that they inflict a level of suffering that falls short of the legal limits. It’s a perfect, and perfectly empty, circle.

This bad faith analysis runs through the latest batch of torture memos.

A crucial difference must be noted between the objection raised here and criticisms of the infamous Bybee/Yoo torture memo that defined “severe suffering” as equivalent to organ failure or death. Supporters who defended that memo as a “good faith” exercise in legal reasoning (however badly flawed) could at least point to a margin of uncertainty that exists with respect to legal analysis.

The problem identified in this post is not about legal uncertainty at all. It raises the distinct point that there was no independent or reliable factual basis to support the legal opinion. Without such a factual basis, the legal opinion simply could not be issued in good faith.






[Addendum: One final point should be made in response to comments in connection with the previous post. The torture memos subtly shift from the “severe suffering” aspect of the statute to the “intentional infliction” aspect. The OLC lawyers reason, time and again, that the presence of medical personnel at the interrogation sessions is compelling evidence that that there was no “intent to inflict” severe suffering. According to this argument, the care the CIA took to protect the prisoners from severe suffering defeats the intent element of the anti-torture statute. (The surreal part of this argument is that, as we now know, the limits were in fact exceeded.)

This reasoning too fails, and for a simple reason that can be demonstrated with waterboarding. If waterboarding inflicts “severe physical or mental suffering,” then the intention element is necessarily satisfied whenever a prisoner was waterboarded (unless the prisoner was accidentally strapped to the board, a wet towel accidentally shoved in his mouth, and a continuous stream of water accidentally poured on his face). The presence of a “medical officer” watching it happen does not negate the intent to waterboard the prisoner. If keeping a prisoner continuously awake for 180 hours, chained in an upright position, inflicts “severe physical or mental suffering,” then the intention element is satisfied by keeping the prisoner in that condition. It doesn’t matter that the medical officer came by to check every now and then.

Second addendum: On a different aspect of questions surrounding torture, Bernard Harcourt uses the latest batch of memos to demonstrate the flaws in arguments that torture should be “legalized but regulated.” Although I find Harcourt’s analysis persuasive, my objection is simpler: torture is a horrific act that destroys human dignity and therefore should not be legalized.]






Comments:

Thank for turning comments on.

OLC did not rely exclusively on CIA self-reporting in these memos. For instance, the 180-hour limit on sleep-deprivation came from a completely un-related, scientific study of VOLUNTEERS who were, in fact, able to stay awake that long with no "severe physical and mental suffering".
 

To answer your query: "Can the OLC rely entirely on the CIA’s own assurances about the extent of suffering inflicted by these practices?" No (and OLC didn't).
 

Hey, Charles. What do you think about this as a solution to the terrorist problem?
I feel sure you have thought of it , but you are just too tender hearted to speak of it.
It's the babies. It's all those terrorist babies that we should think about. A baby
born today will be a terrorist twenty years from now. We have to nip this in the bud.
Israel has had the perfect solution staring them right in the face from the Book of
Exodus and they have wasted fifty years just nibbling around the edges of the
problem. It's the babies. If we kill all the terrorist babies now, in twenty years there
will be no terrorists. It's a perfect solution, don't ya think? We could use Cyclon B.
 

You could almost call it the Final Solution. No, thanks. There are less intrusive ways to accomplish nearly the same goal.
 

There are less intrusive ways to accomplish nearly the same goal.

# posted by Charles : 1:33 PM
Do tell.
 

Brian:

Whom else do you propose OLC can rely upon as fact witnesses of the clandestine actions of CIA if not for the CIA participants with personal knowledge? There are no other witnesses who can testify to OLC.

To the extent that CIA lied to OLC, the OLC memo is not applicable and would not provide a legal estoppel defense from DoJ prosecution. Given that the only reason CIA would bother to come to OLC in the first instance is to obtain this legal defense, lying to OLC would frustrate the purpose of coming to OLC and prove bad faith in a subsequent prosecution.

In any case, it is impossible for CIA to understate a level of pain because there is no objective medical method to measure pain and CIA's subjective speculation on this account is just as good as anyone else's.
 

Bart"buster" (for the last time):

Better to fight the terrorists in the streets of Baghdad than in the streets of New York City. It's been working splendidly ever since 2001.
 

Charles,

You are correct that the memos refer to sleep deprivation studies. As Bradbury makes clear, however, there was "no information" at all about the combined effects of sleep deprivation and waterboarding. This combined effect is important, as Bradbury recognizes, because sleep deprivation affects the pain threshold, and therefore bears directly the degree of suffering. (this was all in his own analysis) The bottom line--as the quotes I use show--is that there was no independent factual basis for rendering a legal opinion about the combined effects of these interrogation practices.

This brings me to Bart's question. As you suggest, Bart, it is unlikely that there would be any studies of this kind.

So what are the implications of this lack of information. First, at a minimum, the OLC lawyers would have to seek other sources of information--other countries, FBI, historical medical reports, anything of nature. The OLC should also have asked to observe the techniques being done, at least in a training context.

AND, if they had no independent information, at the very least, the OLC lawyers should have been willing to undergo the techniques themselves--get strapped to the board and see what it feels like.

You might laugh at this, but it strikes me as an entirely appropriate, if not necessary, way for the OLC lawyers to obtain information on the degree of suffering.

With no reliable information about the consequences of these techniques, the only good faith option avaiable to the OLC lawyers was to conclude that there was an insufficient factual basis to render and opinion.

Brian
 

"Not a lawyer" Question.
I have seen/heard a lot about what is in the memos and all of the aurguments for and against. The one issue I have not heard addressed is what do we now do with KSM and AZ? If no court is going to allow a trail with evidence obtained throught torture and anything after the torture seems like it would be very suspect. I understand you could try based on evidence obtained from other sources, which kind of leaves the whole "enhansed interigation" issue in a bad spot.
What was the intention of the Bush administration just to keep someone locked up forever without trial? I thought that had been settle about 1215 or so at runnymead.
Thnsk for your attention
 

It's been working splendidly ever since 2001.

# posted by Charles : 2:04 PM
It helped get you warmongering morons tossed out of power, so there has been a limited upside.
 

And, because there was "no [INDEPENDENT] information" about the combined effects of sleep deprivation and other techniques, OLC applied a factor of safety by limiting sleep deprivation to 2/3 of the maximum in said INDEPENDENT studies.
 

No, Bart"buster" as we've pointed out on the other thread, there's been no terrorist attack on U.S. soil since 2001. That a majority of the voters have forgotten about 9/11 is a testament to its success, not failure. I would gladly never have another Republican-controlled White House or Congress in exchange for no further terrorist attacks. Unfortunately, since the Democrats have refused to learn from the past, there will be another 9/11 attack.
 

What, was someone laboring under the illusion that any of this was done in good faith?

Well, if anyone was so confused, the record should clear that up. If you have the stomach for it.

The OLC sold indulgences for torture. No calm person who has examined the evidence is in any way confused about this, or unconvinced, or plagued by doubts.
 

jpk:

Have I not been "calm" on this thread at least?
 

That a majority of the voters have forgotten about 9/11

# posted by Charles : 2:33 PM
The majority of Americans have forgotten about 9/11? I'm sure that is news to most Americans. Have you got any evidence to support that claim? Because I have lots of evidence that most Americans think that invading Iraq was an idiotic mistake.
 

Yes, my "evidence" is that the majority of voters no longer think that the U.S. is at war with terrorists (as compared with the exact opposite on 9/12).
 

Yes, my "evidence" is that the majority of voters no longer think that the U.S. is at war with terrorists (as compared with the exact opposite on 9/12).

# posted by Charles : 2:49 PM
According to what poll?
 

Like my hero, I don't make leadership decisions based on polls.
 

Bart:

To the extent that CIA lied to OLC, the OLC memo is not applicable and would not provide a legal estoppel defense from DoJ prosecution. Given that the only reason CIA would bother to come to OLC in the first instance is to obtain this legal defense, lying to OLC would frustrate the purpose of coming to OLC and prove bad faith in a subsequent prosecution.

You're assuming that someone looking to get an OLC "CYA" opinion to 'justify' the torture they want to commit is firmly attached to rationality and logic. That's not necessarily a fair assumption, and if it doesn't pertain, your "logic" here falls apart. They may feel it indeed necessary to lie to the OLC to obtain whatever "CYA" opinion they can find, threadbare though such may be in actual court....

I'd note for the record that someone who did not have a "guilty mind" wouldn't be scurrying about looking for "CYA" letters.

Cheers,
 

Like my hero, I don't make leadership decisions based on polls.

# posted by Charles : 2:58 PM
This isn't a leadership decision, you moron. This is you making a claim for which there is no supporting evidence.
 

Is there a written "Standard of Care" for the issuance by OLC attorneys of memos/legal opinions? Can the OLC attorneys rely solely upon the request of the client as spelled out by the client, or is there a duty under certain circumstances imposed on the OLC attorneys to further investigate both with the client and perhaps beyond the client? If the client misleads the OLC attorneys, does that make the memo/opinion ineffective for the defense of the client who follows the memo/opinion? Do OLC memos/opinions contain a stock disclaimer for the protection of the attorneys with repect to matters withheld by the client or that were misleading as provided by the client? Surely the OLC "Standard of Care," if there is one, is more significant than such standards for real estate, tax, securities, patent, etc, legal opinion letters.

And might there be paper trails of the back and forths between the OLC attorney and the client before the memo/legal opinion issues?

By the way, who was/were the client(s) for these memos/opinions?
 

DonLon:

You raise a great point about the uses and efficacy of coercive interrogation.

Coercive interrogation works for intelligence gathering because you can verify the facts given by the prisoner and thus discount the almost inevitable lies given intentionally or to get the coercion to stop.

However, because coercive interrogation will inevitably result in false confessions, this is not a legitimate method to gain admissions which form the basis of a criminal conviction.

Thus, upon the capture of a high value target, the President is almost always presented with the choice of using non-coercive interrogation to gain admissible criminal evidence at the cost to gaining timely and actionable intelligence that may save lives or using coercive interrogation to gain intelligence at the cost of gaining evidence for a criminal conviction.

This choice can be made easier if you possess sufficient admissible criminal evidence to prove a case prior to the capture and interrogation as we had with Padilla. However, the choice never completely disappears.

The choice to use coercion is also made easier by the fact that a nation can lawfully detain a wartime enemy for the duration of the conflict without a criminal trial. However, recent court decisions seeking to rewrite the centuries old law of war where the courts arrogate to themselves the discretion to decide whether an enemy is not longer dangerous during a war may change that calculation.
 

Just because I haven't commissioned a poll doesn't mean it's not true. I speak with plenty of leftists to know it is. Of course, if Bill Clinton's OLC had issued the exact same memos, most of you would be defending him instead. So, please don't tell me there's no supporting evidence based on the lack of Gallup wanting to check on it.
 

Shag:

The Office of Legal Counsel is, technically, the Attorney General's lawyer.
 

Do we have estimated data to indicate the number of persons
who would have been killed in the streets if we had not invaded
Iraq as opposed to the more than 4000 soldiers killed in Iraq
during the same time period? We hear this argument repeated
with no data to support it. Or do we just not count military deaths
as citizen deaths?
 

So, please don't tell me there's no supporting evidence based on the lack of Gallup wanting to check on it.

# posted by Charles : 3:10 PM
That is exactly what I'm telling you. And until you have a poll supporting your claim, it is nothing but moronic rightwingnut BS.
 

Charles, you cannot have missed the numerous internet postings wherein the very researchers cited in the memo re: sleep deprivation, complain that their express reservations were simply disregarded by CIA.

If you restricted yourself to honest, good-faith comments, you could post half as often, and might not seem quite so desperate to become the center of attention.
 

Ferris:

I would estimate at least 10,000 dead (maybe much more) if we had simply sat back and allowed a Third, Fourth, and even Fifth Wave of attacks by now. Regardless, IF there's another 9/11 attack now -- after Obama has made such a public show about "NOT doing everything to defend the American people" -- then said people will know exactly who to blame. I hope you will be proud of yourself too.

Bart"buster":

I know YOU will be proud. Have you read the posts by "Amicus" on the other thread? Please tell me that's NOT typical of leftist rants about there being no war" against an adjective.
 

I know YOU will be proud. Have you read the posts by "Amicus" on the other thread? Please tell me that's NOT typical of leftist rants about there being no war" against an adjective.

# posted by Charles : 3:22 PM
I didn't read it, nor does it matter. You need more than 1 example to support your claim, you need significant unbiased poll numbers.

BTW, whether there is a war against "terror" is not the same as a war against "terrorists". You said that most Americans think there is no war against "terrorists", so that is the claim you have to support.
 

While the memos did reference sleep-deprivation studies, it's clear that the authors had only a superficial understanding of those studies and failed to consider the combination of techniques.

The sleep researchers were horrified at the misuse of their science.
 

I don't need to give you anything "moron".
 

Mark Field:

How did the explicit acknowledgment of differences between a voluntary scientific study and interrogation, as well as the factor of safety, built into the 180-hour limit "fail[] to consider the combination of techniques"?
 

OLC also granted that the subject must be accorded 8-hour sleep in between every 180-hour session. Have you even read the memos in question?
 

there was another terrorist attack on US soil following 9/11. has everyone forgotten the anthrax attacks?
 

I don't need to give you anything "moron".

# posted by Charles : 3:37 PM
True. Instead of providing support for your claims, you can just accept that they have no credibility outside your own little circle of rightwingnut morons.
 

OLC also granted that the subject must be accorded 8-hour sleep in between every 180-hour session. Have you even read the memos in question?He types, but he does not think.

I mean, my god, how merciful! At *least* 8 hours of sleep in between 180-hour sessions!
 

Garth:

I said "since 2001 (and, therefore, after the anthrax attacks which weren't FOREIGN terrorists in any event".

Bart"buster":

Like I care what my "credibility" is in YOUR opinion?! I think that objective parties, such as Professor Tamahana, can evaluate that much better. If he can't appreciate me bringing up the fact there were non-CIA sources, that's not my fault.
 

Bart DePalma wrote:

In any case, it is impossible for CIA to understate a level of pain because there is no objective medical method to measure pain and CIA's subjective speculation on this account is just as good as anyone else's.So my speculation that sticking red-hot needles in your eye might cause minor discomfort is just as good as your speculation about it?
 

Charles said:

Bart"buster" (for the last time)Oh, if only that were true.
 

Hank:

That is, indeed, the last time I will try to convince those like Bart that terrorist attacks in the streets of NYC are a bad thing.
 

DonLon,

"Not a lawyer" Question.
I have seen/heard a lot about what is in the memos and all of the aurguments for and against. The one issue I have not heard addressed is what do we now do with KSM and AZ? If no court is going to allow a trail with evidence obtained throught torture and anything after the torture seems like it would be very suspect. I understand you could try based on evidence obtained from other sources, which kind of leaves the whole "enhansed interigation" issue in a bad spot.
What was the intention of the Bush administration just to keep someone locked up forever without trial? I thought that had been settle about 1215 or so at runnymead.
Thnsk for your attention
Unfortunately, it isn’t clear what the Bush administration thought it was going to do with KSM and AZ. After torturing him, obviously anything he said under torture is inadmissible as evidence in a criminal trial. So, hopefully, there would be other evidence to convict him. But, it appears the administration believed it could just set up a shadow court system, which would permit evidence obtained from torture, hearsay, self-incrimination, and trial without a jury. As you said, in contradiction to many principles thought to have been resolved at Runnymede.
Nevertheless, the US is slowly righting itself, and hopefully someone will figure out how to convict the guilty. Unfortunately, it is now a lot more difficult than before. On the plus side, the Supreme Court has been given (and utilized) this opportunity to protect the Great Writ, start to reign the executive back to faithfully executing the law, and restoring some balance to the federal government. The Judiciary has now reasserted its power to ensure the executive only imprisons people lawfully.
 

Charles and Bartbuster,

Please: no personal insults or name calling. The comments are for an exchange of ideas.

Thanks,

Brian
 

Thank you, Brian Tamanaha.
 

Back on topic, fn. 42 revealed that only three (3) detainees were subjected to sleep deprivation lasting more than 96 hours. I mean, come on, that's standard fare for residency at any American medicial school. That memo specifically stated that no opinion was being offered as to multiple 180-hour sessions, back to back, even with the 8-hour intervening sleep period. Why do I get a sense that I am the only one who has actually read these memos?
 

This comment has been removed by the author.
 

Charles said:
That is, indeed, the last time I will try to convince those like Bart that terrorist attacks in the streets of NYC are a bad thing.

Except that is not at all what you have been saying. You have repeatedly said:

Better to fight the terrorists in the streets of Baghdad than in the streets of New York City.

This is a false dichotomy. There is no evidence that fighting terrorists (although many of those we are fighting in Iraq could be considered nationalists fighting against an unwarranted invasion) in Baghdad lowers the chances of fighting them in New York. If anything, our ill-advised adventure in Iraq has probably created more terrorists than it has eliminated, thus increasing the odds of having to fight terrorists in New York.

The fact that someone rejects your simplistic world view does not mean that they think that fighting terrorists in New York is a good thing. It means that they have a more nuanced view of cause and effect than you seem to be capable of grasping.
 

Interesting post, but I think your addendum misstates the usual understanding of specific intent requirements. These memos interpret the statute to require specific intent to achieve the result -- that is, the defendant must intend to cause severe physical or mental pain or suffereing. It's not enough to intend the conduct.
 

Why do I get a sense that I am the only one who has actually read these memos?Prof. Tamanaha has asked that we not speculate as to the answer to your question.

Trotting out the obvious retort to the sleepless-residents trolling, here is Dr. James Horne, one of the experts "relied upon" in the memos:

Thus I emphasise that my book’s conclusions were based on ‘pure sleep deprivation’ without additional stresses. Such findings were derived from otherwise undemanding and benign laboratory studies that do not typify the real world, whereas people are usually sleep deprived because of other stresses such as long and arduous working hours, family crises, etc. * * *

With additional stresses as in ‘coercive techniques’, the situation for the sleep deprived victim becomes deplorable, as the mind and brain under these circumstances trigger the body’s defences to create a physiological ‘alarm reaction’ whereby, for example, various stress coping hormones are mobilised and prepare the body for possible trauma, even blood loss. I emphasise that this alarm reaction is not present under ‘pure sleep loss’ as I have just described. Prolonged stress with sleep deprivation will lead to a physiological exhaustion of the body’s defence mechanisms, physical collapse, and with the potential for various ensuing illnesses. We don’t know at what point this latter phase would be reached with ‘coercive techniques’, but to claim that 180 hours is safe in these respects, is nonsense. Moreover, whereas physical pain may not be particularly apparent even at this stage, the mental pain would be all too evident, and arguably worse than physical pain.

 

I doubt that Dr. James Horne has even read the memos, at least not footnote 42.
 

This was not in the memos, but recent studies show that sleep deprivation actually has some benefits, such as the potential in the treatment of depression. About 60% of patients, when sleep-deprived, show immediate recovery from depression, although most relapse the following night. The incidence of relapse can be decreased by combining sleep deprivation with medication. Many tricyclic antidepressants happen to suppress REM sleep, providing additional evidence for a link between mood and sleep. Similarly, tranylcypromine has been shown to completely suppress REM sleep at adequate doses.

Maybe the CIA were concerned about "depressed" terrorists not enjoying their stays at Gitmo?
 

Has anyone actually determined the mental sanity of the those involved in the torture, either as approvers of it or as the perpetrators? It is clear to me that these individuals are sadistic monsters or border closely thereon. Clearly, no mentally competent decent human being would participate in any level of torture or degradation of a fellow human.
 

Alice:

Interesting post, but I think your addendum misstates the usual understanding of specific intent requirements. These memos interpret the statute to require specific intent to achieve the result -- that is, the defendant must intend to cause severe physical or mental pain or suffereing. It's not enough to intend the conduct.

Not quite. "Specific intent" usually means that the actor have the "specific intent" that the prohibited result occur, not that this be their aim or ultimate goal (their "motive"). This also applies to any consequences that are the natural and probable consequences of the specific actus reus. It doesn't matter that the person doesn't think that the prohibited result will occur.

Thus, it is murder if you fire a gun (the actus reus) which results in the bullet hitting and killing someone. If you did such, and your motive was to collect that person's life insurance, this motive might be evidence that you did in fact commit the actus reus, but it is not an element of the crime. If you fired the gun with no motive, and no intention of killing someone, but the gun was pointed at someone and they were killed, you might still be found to have the requisite specific intent, if you did so in such a manner that it was probable that it would hit and kill another person. Any belief you had that the gun would hit something else, that the person in your aim was wearing a bullet-proof vest, or even that the killing that resulted was not legally proscribed, would not avail.

In this case, it doesn't matter whether you thought that your actions would cause "severe physical or mental pain" as defined legally; there is no requirement that you desired to break the law (by exceeding the pain threshold that is prohibited by statute). All that is required is that you intended to inflict the pain that did result (or that you should have known that the probable and natural [and in this case, quite intended] result of your actions was the pain that resulted), and also that the pain was in fact "severe" (as carefully defined by the statute; see 18 USC § 2340 (2)).

Thus the big push by the defenders of the torture to assert that, factually, the pain inflicted on the torturers was not "severe" as defined by the law, and failing this, to insist that a "reliance on counsel" (or more accurately, reliance on government authority estoppel) provides an affirmative defence to the crime of torture for the CIA agents that relied on the advice of their superiors.

Cheers,
 

Even if the memos were not issued in "good faith", Sens. McCain, Graham, and Lieberman have sent a letter to President Obama urging him not to prosecute Bush Justice Department officials who wrote legal rationales for torture:

"We write with concern about proposals to prosecute previous administration officials for their legal analysis related to the CIA interrogation program. Pursuing such prosecutions would, we believe, have serious negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward.

We agree with your position that CIA interrogators, carrying out operations that had been deemed lawful by the Attorney General, should not be the subject of prosecution. Indeed, we addressed such a possibility in the 2005 Detainee Treatment Act, which holds that "good faith reliance on advice of counsel should be an important factor, among others," when considering whether CIA interrogators had good reason to believe that their activities were legal.

We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution. Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed. We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal. We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client - the U.S. Government - with their best legal advice. Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime.

Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations. That is why we do not support the idea of a commission that would focus on the mistakes of the past."
 

Charles, what a bunch of bullshit! This was never close to being "good legal Advice". And where the hell do you get the idea that lawyers are exempt from the norms of human decency that the rest of us are held to? Do you even begin to realize that after this is justified, then any police department will be justified to apply the same torture methods to their investigations? There are plenty of sadists out there willing to do exactly that.
 

This comment has been removed by the author.
 

The Crater Lake Hermit:

I did not write this letter. UNITED STATES SENATORS wrote this letter. That being said, lawyers ers should zealously represent their clients. Do you need me to look up the ABA Model Rules on that?

P.S. I doubt that many police departments out there are in charge of national security like the CIA, get green-lighted by the AG to perform this specific task, whose stated mission as "the nation's first line of defense" includes:

We accomplish what others cannot accomplish and go where others cannot go.
 

BTW: didn't White House Chief of Staff, Rahm Emanuel, say that there would be "no prosecutions" of either CIA officials who carried out the interrogations or senior Bush Administration officials who designed out the program just three days ago?

"This is not a time for retribution," Emanuel said in an interview on 'This Week with George Stephanopoulos.' "It's a time for reflection. It's not a time to use our energy and our time in looking back and in a sense of anger and retribution."
 

I don't think you even need to get to the question of whether or not sleep deprivation causes pain in order to find that it's torture. 18 USC 2340(2)(B) says torture includes "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality". Extended sleep deprivation looks to me like it meets that definition - 48 hours is long enough for most people to reach an altered state of conciousness.

I've also wondered why we don't hear more about Art. 3.(1)(c) of the 1949 Geneva Convention, which prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment." That would seem to me to ban all of the actions discussed by the memos.
 

OMG! If 48 hours is long enough for most med strudents to reach an altered state of conciousness, you'd better stay out of every teaching hospital!
 

Avoiding being treated by a sleep deprived intern is damned good advice. I've seen studies that found a majority of interns believed they had killed a patient due to mistakes caused by sleep deprivation.
 

So, let's prosecute every medical school professor and university board / president for "torture" then!!!
 

LOL! You libs are funny (if you weren't so dangerous, I'd just laugh to myself and lurk).
 

There is the small matter of consent. Med students at least in theory volunteer to put up with crappy treatment, while prisoners have no such option.

You do understand the difference between sex and rape, right?
 

Another one of Charles endearing practices is plagiarism. Take a look at his 4:49 post, which is a cut & paste from Wikipedia without attribution.

Charles was famous for that at the Washington Monthly blog years ago before he was shamed out of there for serial lies and misrepresentations.

Are there any standards to uphold here?
 

This was not in the memos, but recent studies show that sleep deprivation actually has some benefits, such as the potential in the treatment of depression.Come on, Charles makes Bart look like a good-faith poster. Why the heck do you guys feed such an obvious troll?
 

Charles and Bartbuster,

Please: no personal insults or name calling. The comments are for an exchange of ideas.

Thanks,

Brian

# posted by Brian Tamanaha : 3:51 PM


Sorry professor, but as long as you allow your blog to be hijacked by propaganda spewing rightwingnuts like Baghdad and Chucklehead, you're going to have to live with a lot of personal insults. That should be pretty obvious by now.
 

heckblazer:

Yes.
mattski:

I wasn't aware that Wikipedia had an entry on "depressed terrorists". You caught me, though, I had to look up the spelling of anti-depressants. I have never lied here or at Washington Monthly. I left as soon as Kevin asked me to leave.
 

Charles, you lied repeatedly. And that's putting it mildly.
 

No, didn't.
 

Luckily, our host has asked for no personal insults or name calling.
 

mattski or Bartbuster:

Is there any "exchange of ideas" you have on the topic?
 

Might I suggest that that there is a "beams and motes" quality to much of this debate.

In the immediate aftermath of 9-11 the Bush Administration made a series of fundamental misjudgments:

(i) it was decided that foreigners who come to attack the USA within its borders and those who stand behind them were more than criminals. In the belief that the perpetrators would have no rights whatsoever it as decided that the once the President declared war on them, he could do with them what he wished;

(ii) it was considered that the President's war powers would even sanction indefinite detention of US citizens arrested within the USA and they would not have access to the Courts;

(iii) it was considered that as long as prisoners were kept outside the territorial jurisdiction of the US Courts there would be no relief which the US Courts could grant to any detainee;

(iv) it was felt that international treaties did not matter and all that the President needed to do was to to declare that the protections of those treaties did not apply.

In very great measure, matters have been exacerbated by the way the Federal Courts have approached these questions. Issues which in our judicial system would have taken months to go from first instance ex parte application to final consideration by the House of Lords have in your courts taken years to be resolved - and due to the reluctance of the courts to grapple with the real issues - some quite fundamental issues remain unresolved to this day.

By way of example, the US Courts have thus far ducked the question whether it is legally possible to have a "global war on terror" against a non sovereign entity which is unlimited in time, or territorial extent, or as to the persons who can be deemed combatants.

That Orwellian concept enabled the Bush Administration to claim that it was entitled to detain individuals in various countries in breach of local law (for example in Italy, Bosnia, the Gambia and Pakistan) take them to its own facilities and subject them to torture or at least inhuman and degrading treatment.

Then there was the attempt to avoid intervention by the Courts by reliance on the "legal black hole" theory for Guantanamo Bay.

Then there was the determination that the protections of the common article 3 provisions of the Geneva Conventions did not apply to detainees.

I do not think those issues would have troubled the UK Courts at all:

(i) The "global war on terror" is a juridical nonsense. There can be war (declared or not) against defined sovereign states. There can be "punitive expeditions" to subdue lawlessness in places where there is no effective government.

The question whether a particular war or punitive expedition is lawful or otherwise is non justiciable - it is a matter on which the judicial branch defers to the executive and the democratically elected parliament.

But the executive cannot cannot escape the consequences of otherwise unlawful conduct by declaring the existence of a conflict which is unknown to the law.

(ii) For UK officials to detain a person apprehended outside the jurisdiction in circumstances which are in breach of the law of the place of detention or to conspire with officials of a foreign government officials to bring a person into the custody of the UK in breach of the law of the place of apprehension makes the detention of that person unlawful and to prosecute a person within the jurisdiction when his presence is the result of such unlawful acts overseas is an abuse of the process of the Court.

(iii) The "in personam" jurisdiction of the Court over the executive permits the court to grant the remedy of habeas corpus no matter where the detainee is held since the presence within the jurisdiction of a person with power to order release is sufficient - particularly where there is no other court able to exercise control;

(iv) The power of the Crown to dispense from the due application of law was claimed by the Stuart monarchs but was no longer part of our law from the time of the Glorious Revolution of 1688 (and, as an aside, I do not think it is a power of the President under the US Constitution), therefore any decision by a UK official to declare the Geneva Conventions inapplicable to detainees would have been amenable to judicial review and liable to be quashed - a declaration as to rights would have been made and, if that were not observed, a mandamus could go to compel the executive to comply.

I think we have to accept that there is quite a body of public opinion in the USA which believes that US citizens ought to be especially privileged before the law and that foreigners, particularly non-resident foreigners, have no rights.

There are also those who believe that the Executive ought to be given unlimited latitude to detain, and to subject non citizen detainees to inhuman and degrading treatment, if the consequence of those acts is to make citizens safer.

For example, a previous contributer asserts above:-

"I would estimate at least 10,000 dead (maybe much more) if we had simply sat back and allowed a Third, Fourth, and even Fifth Wave of attacks by now. Regardless, IF there's another 9/11 attack now -- after Obama has made such a public show about "NOT doing everything to defend the American people" -- then said people will know exactly who to blame. I hope you will be proud of yourself too."and another asserts:-

Coercive interrogation works for intelligence gathering because you can verify the facts given by the prisoner and thus discount the almost inevitable lies given intentionally or to get the coercion to stop. However, because coercive interrogation will inevitably result in false confessions, this is not a legitimate method to gain admissions which form the basis of a criminal conviction. Thus, upon the capture of a high value target, the President is almost always presented with the choice of using non-coercive interrogation to gain admissible criminal evidence at the cost to gaining timely and actionable intelligence that may save lives or using coercive interrogation to gain intelligence at the cost of gaining evidence for a criminal conviction."Those are attitudes prevalent in Tudor England and Jesuits were certainly tortured in the reign of Elizabeth I. But I am not unhappy that our understanding has moved on since then.

There is no doubt that, faced with the existence of a terrorist threat, prior to 9-11, it was assumed that the continental United States was safe because sheltered behind its two shining seas. Steps were taken to improve security of US citizens overseas - for example by putting in place security at embassy buildings, the issue of travel advice and the like. But nobody thought of the ease with which a commercial airliner could be turned into a guided missile and there was no real security in that regard.

I remember flying on commercial flights in the USA and being horrified to see that pilots habitually flew their aircraft with the door between cockpit and passenger cabin open. That lesson has been learned. Measures to prevent the same thing happening again have been taken. So there ought to be no repetition of 9-11.

That is not to say that no other terrorist atrocity can happen - whether or domestic or foreign origin

But no government can ever assure 100% safety to all its citizens. Were it to be required to do so, the individual right to bear arms would certainly have to go by the board. It might also be necessary to install devices to prevent any motor vehicle ever being driven by a drunk driver. There is always a trade off between liberty and public safety.

Here in the UK, we are now probably the most surveilled society in the world. If I travel from my local Tube Station to go shopping in the West End, I know that I am under continuous camera surveillance from the moment I enter the Underground Station, all along Oxford Street and back to my return to my local station. When I get back, I may have to go through metal detectors to ensure that I am not carrying a knife - or worse.

These security measures do to some extent affront my sense of individual liberty, but I accept that they effectively deter many assaults and other criminal offences or if deterrence fails, enable the apprehension and conviction of the criminals- which at least gets them off the streets. The same has been true for those who attempted recent terrorist attacks. They were tracked on camera the length of the country.

Deterrence means I am still safe to go out largely without fear knowing that my police force can maintain law and order without a whole load of armed cowboys putting me at risk.

I know that I cannot lawfully purchase many kinds of fire-arms. I am pleased that is so. It makes it much less likely that I will be shot. I am told that in some US hospitals, the commonest complication of pregnancy is gunshot wounds and I remember that in Texas I saw quite a few signs on my hosts' house announcing that "solicitors will be shot" - I did not know until then that distaste for lawyers went quite that far.

I suggest that the US Federal Government can no more purport to assure its citizens 100% security against armed terrorists who are prepared to die in the course of their attacks than it can assure every parent that their children will not be shot by some armed lunatic at their local high school.

All risks can be minimised by various measures - but torture and inhuman and degrading treatment of captives actually increases the risk of attacks since it enables the recruitment and motivation of yet more individuals to the terrorist cause.

So to me that argument that "torture works" has no validity. Nor does the lesser argument for other forms of inhuman and degrading treatment. We have to demonstrate that our human rights values are not so fissiparous as that. Certainly we must obtain intelligence, and confessions, and take reasonable precautions. We must seek to prosecute and deter terrorists just as we do with any other serious criminal activity. But we don't cross certain lines.

Otherwise, we might as well have welcomed Herr Hitler with open arms and avoided all the bombing of London and our other cities. But the price we would have paid would have been far greater in the long run.
 

In any case, it is impossible for CIA to understate a level of pain because there is no objective medical method to measure pain and CIA's subjective speculation on this account is just as good as anyone else's.
# posted by  Bart DePalma : 1:52 PM

"Pain can not be measured objectively, so no one can say that
excessive pain has been inflicted. We had better hurt him a little
more, in case he happens to be one of those who do not feel
pain objectively."
 

"We have to demonstrate that our human rights values are not so fissiparous as that."

Mourad (with apologies to Stephen Colbert) has the "Word": fissiparous. Perhaps Yoo, Bybee and Bradbury were familiar with the "Word" in constructing their memos/opinions. Is the "Word" related to loopholes?
 

Does anyone think there is a remote possibility that some one has had water
poured in his nose to persuade him to give up information that he really did not
have and never did have ? Or does this really matter?
 

Shag, since the word "fissiparous" is to be found in most dictionaries of the English language, I would hope that law graduates of most respectable universities would have the word within their vocabulary, particularly those with political ambitions since political parties do have a tendency to break into factions.

In the case of Messrs Yoo, Bradbury and Bybee, I don't think they had any belief in fundamental human rights from which they could be separated.

That is why I am not altogether surprised that Jay Bybee has not done the gentlemanly thing and resigned his commission.

Mind you, the English language is one thing and "Murkin" quite another. That is perhaps why one well-known satirical site always appended a registered trademark to the word "freedom" when used by the Bush Administration - they maintained that under Bush the word had a different meaning to the common understanding of most users of the English language.
 

Mourad: My handy dandy "Webster's New World Dictionary" defines fissiparous: "Biol. reproduction by fission" and fission: 1. a splitting apart; division into parts." The Internet is more helpful with definitions of fissiparous.

But now you got me with "Murkin" as I am familiar with this word only in the context of a joke which describes a "Murkin" as a hairpiece for showgirls to wear when they go out on dates to appear more normal. (I'll refrain from the punchline, since this is a family blog.) How about a link that can explain your reference?
 

Shag: "Murkin" is also best explained by a joke.

American tourist goes into souvenir shop near the Tower of London and says to the owner, "Howdy, do you speak Murkin".

Silently, the owner points to a sign behind the till:-

"On parle Francais
Se habla Espagnol
Man spricht Deutsch
Si parla Italiano
English Spoken
Murkin Understood"
 

Shag

You have to understand, the Brits have been corrupting the President's proper English for years. I wish they would simply learn to speak it already.

;)
 

nerpzillicus:

Monty Python's Flying Circus updated might provide an "explanation" of Yoo, Bybee and Bradbury's memos/opinions. After Britain's empire declined, British humor took its place. Perhaps Jon Stewart and Stephen Colbert are responses to America's empire.

As a lad of 14, I was recovering in a hospital ward from hernia repair surgery. The 4 or 5 guys in the ward, who were in their 20s and 30s, discovered that when I laughed it hurt and when I asked them to stop they told joke after joke after joke. Now that wasn't torture - although it hurt. But in times of pain, a sense of humor helps. Maybe Mel Brooks has to come up with a musical like "The Producers" (that mocked Hitler) featuring torture. Let's think of some song titles based upon Yoo, Bybee and Bradbury's memos/opinions. I'll start with "Bye Bye, Bybee" and "There Goes the Judge, There Goes the Judge." Add: "Yoo, You're Driving Me Crazy" and "Yoo Always Hurts the One You Hate."
 

The Massachusetts-Bay Colony, famous for being a dictatorial theocracy, particularly in its witch-hunting ferocity, stipulated the following, in relevant part, as concerns torture:

"45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and sufficient evidence to be guilty, . . . ."

From the Massachusetts-Bay "Bodie of Liberties" of 1641.

That evidence for conviction clearly being derived prior to the torture.

The born-again freedom-loving Christian Bushit and his fellow barbarians, and their radically America-hating apologists, should be so compassionate.
 

Look who crawed out from under its rock.
 

Charles --

You should take a look at the ABA rules:

1.1: Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

"Zealous" was replaced with "competent" specifically because of what happened here - lawyers going to extremes to justify behavior they could not if they were more concerned with being competent than zealous. Here's another rule:

2.1: Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Was the professional judgment here "independent?" Did the OLC lawyers address moral considerations at all?
 

I quit the ABA after they invited IMPEACHED Bill Clinton to speak.
 

Charles said:

I quit the ABA after they invited IMPEACHED Bill Clinton to speak.

I quit the ABA after they dropped the multi-colored ball and the players stopped wearing Afros.
 

I quit the ABA late in my career only for economic reasons. In my salad days, I ate up with gusto, as a solo practitioner, the ABA's Business, Tax, Anti-Trust, Securities, Property Sections' literature to keep up with the "big boys."
 

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