Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"I remember well the pain of those of us who served our country even when the policies we were carrying out were unpopular or could be second-guessed. We in the Intelligence Community should not be subjected to similar pain."
-- April 16 statement by Dennis C. Blair, Director of National Intelligence, responding to the release of additional torture memos by Steven Bradbury, Jay Bybee, and John Yoo.
MEMORANDUM FROM STEVEN BRADBURY, JAY BYBEE, AND JOHN YOO, OFFICE OF LEGAL COUNSEL, TO JOHN RIZZO, GENERAL COUNSEL, CIA:
You have asked for this Office's views on whether the technique known as "second-guessing" would violate the prohibition on torture found at Section 2340A of title 18 of the United States Code. As you have described second-guessing, it consists of the following procedures: (1) revelation of abusive, illegal, or immoral tactics by United States personnel in an armed conflict of either an international or noninternational character, see Articles 2 and 3 common to the 1949 Geneva Conventions; (2) subjecting the personnel to public criticism, including but not necessarily limited to criticism by liberals, the editorial staffs of the mainstream media (hereinafter: MSM), Democratic (hereinafter: "Democrat") senators, and Europeans; (3) subjecting such personnel to investigation and/or legal liability for "crimes" (hereinafter: self-sacrificing public service), even though such liability may appear to be largely hypothetical because of political opposition and presidential reluctance; and therefore (4) causing potential anxiety among such personnel. You have informed us that such anxiety may deter intelligence personnel from self-sacrificing public service (so-called "crime") in the future.
As we have explained in our memorandum of August 1, 2002, torture requires the intentional infliction of severe mental or physical pain or suffering. Mental suffering, we have explained, must be prolonged for months or years to count as "severe".
We have concluded that second-guessing does indeed cause severe mental suffering and is therefore prohibited by federal law. After all, you are still experiencing the trauma of being second-guessed about the Vietnam War more than thirty years after it ended. Although the statute requires that the second-guesser specifically intend to cause prolonged mental suffering, evidence exists that anti-war protestors in 1969 were heard to shout, "I hope the shame lasts forever!" (statement of hippie protestor at a demonstration after MSM traitorously revealed details of the My Lai incident; cited in Collected Bitter Reminiscences of Richard Cheney, vol. 4, The Angry Years, at 196; see also id., vol. 6, The Paranoid Years, at 515). We believe that the quoted statement evidences specific intent to cause prolonged mental pain through the act of second-guessing.
To summarize: second-guessing members of the Intelligence Community is torture, and therefore a crime. However, as we have explained in previous memos, Waterboarding, Walling, Cold Cell, and Long Time Standing are not.