Balkinization  

Sunday, January 17, 2010

"Obama's War over Terror": Some exegetical reflections

Sandy Levinson

Today's NYTimes magazine has a very interesting article by Peter Baker on "Obama's War Over Terror," which sets out the various alternatives with which the President is wrestling. Jack and I have been arguing that the "national surveillance state" is now part of our permanent reality, and there is certainly much in the article that supports that thesis. But that is not the point of this posting. Rather, there are a number of almost off-hand statements that are worth some elaboration, in terms of understanding the basic structure of our government and its strengths and weaknesses. So, consider:

1. One of the central subjects of the article is John Brennan, described as "the top White House counterterrorism adviser." Brennan was apparently Obama's initial choice as CIA director, but he was dissuaded from the appointment by critics from the left of Brennan's service as part of the Bush Administration. More to the point, perhaps, the Administration didn't want to nominate someone for whom Senate confirmation might be dicey, or, at the very least, provoke the kind of confrontation that Obama clearly didn't want. So, instead, he was given a plum position within the White House itself. Nothing wrong with that, I suppose. Presidents have always had non-confirmed (or confirmable) advisers. (I've just finished a superb book by Jeff Shesol on Roosevelt's Court-packing plan, which will be coming out later this year, and he mentions Louis Howe, who actually basically lived in the White House and was an almost literally uniquely important adviser to FDR.) But there can also be no doubt there are an ever-increasing number of such unconfirmed officials, paid for by taxpayers, who may well on occasion be considerably more important than the confirmed Cabinet secretaries and, most certainly, deputies and assistant secretaries. There was a panel at the recent AALS convention in New Orleans, organized by Boston College law professor Richard Albert, on the constitutional statuts of "czars." And, of course, it's not only confirmation (or lack of same). There's also the issue of oversight, since presidential advisers often claim, with presidential support, an immunity from having to testify before Congress. Perhaps, when all is said and done, we benefit from this, but it should be clear, say, that Henry Kissinger, most notably, was far more important than the Nixonian Secretaries of State, and one might say the same thing about Brzezinski vis-a-vis Cyrus Vance during the Carter Administration. Is this something to be concerned about, or is it simply way too late (even if we think that there are serious questions about the wisdom of this devopment)?


2. The article also notes that Secretary of Defense Robert Gates did not attend the inauguration. Instead, he was at a secret location. "With no other member confirmed by te Senate, Gates,an incumbent cabinet officer who also had the imprimatur of the newly elected commander in chief--was the most logical person in the line of succession to take over the presidency should the worst happen." So what's the problem here? First of all, whether he was the "most logical person" or not, there's the little matter of the Succession in Office Act of 1947, which places sucession, following the Vice President, in the Speaker of the House and then the President pro Tem of the Senate (currently Robert Byrd). So one first has to imagine that both Obama and Biden had been assassinated during the inauguration. Unless the attack had taken out Pelosi and Byrd as well, there is no way that the Republican Gates becomes President of the United States. It is true, incidentally, that Akhil and Vikram Amar have written a wonderful article plausibly arguing that the Succession in Office Act is unconstitutional, and I believe that it is perhaps even worse than unconstitutional, i.e., monumentally stupid. But I am more than a bit surprised that the Times let this sentence go by without noting its problems. (Incidentally, Bart Gellman in his superb book Angler, on Dick Cheney, notes that Cheney simply left the Speaker and President pro Tem out of any "practice sessions" re responding to a terrorist attack that made such issues of continuity in government relevant. It wasn't clear whether Cheney had read the Amars' essay and agreed with it or whether he was simply exhibiting his fascistic tendencies and utter contempt for elected public officials beyond himself and his puppet George W. Bush. But I digress...)

Moreover, this aside makes it clear how irresponsible it is that we have no mechanism to confirm high-ranking members of the cabinet before the moment of inauguration. As it happens, I believe that Hillary Clinton, who precedes Robert Gates--as does, I believe, the Secretary of the Treasury--was confirmed the afternoon of the inauguration. So under Baker's notion of "logical" succession, even if we put Pelosi and Byrd to one side, would Gates serve only for a couple of hours, until the almost infinitely more legitimate Secretary of State Clinton would have taken the reins of office, or would all of Obama's nominations have been moot, so that President Gates would choose a new cabinet, etc.

3. Apparently--surprise, surprise--the CIA and other intelligence officials were appalled by suggestions that anyone be held accountable for misdeeds during the Bush Administration. Michael Hayden, the last of Bush's CIA directors "recalled warning Jim Jones, Obama's national security adviser, last spring not to alienate the C.I.A. by dreding up the past. 'You're about to spend the next 46 months without a clandestine service,' Hayden recalled saying. 'If these guys don't think you have their back, they're not going to be very adventurous.'" Translation: If intelligence officials don't believe they are absolutely immune from any kind of legal or political accountability--sometimes known, quaintly, as "the rule of law"--then all America will suffer. This may put in further context the quote attributed to Obama,"The C.I.A. gets what it needs," regarding the use of drones for what are, after all, targetted assassinations in a country (Pakistan) with which we are not at war. But what it "needs" are not only planes and money, but also the assurance that there will be no accountability. And that, alas, seems to be the policy adopted by the Obama Administration.


Comments:

Sandy:

The CIA, like the military, does not want to be criminally prosecuted under ex post facto changes in legal interpretation implemented for ideological reasons like your suggestion that drone air strikes against a wartime enemy in allied territory are somehow unlawful assassinations. This is a more than reasonable request with which Obama was wise to agree.
 

I suggest you read the Wikipedia entry on the Designated survivor:

"A designated survivor (or designated successor) is a member of the United States Cabinet who stays at a physically distant, secure, and undisclosed location when the President and the country's other top leaders (e.g., vice president, secretary of state) are gathered at a single location, such as during State of the Union addresses and presidential inaugurations."

The end of the long list includes:

# 2006 State of the Union: Jim Nicholson,[19] Secretary of Veterans Affairs
Sen. Ted Stevens (R-AK), President Pro Tempore of the Senate
Sen. Byron Dorgan (D-ND), Rep. Eric Cantor (R-VA), Rep. George Miller (D-CA)[21]
# 2007 State of the Union: Alberto Gonzales,[19] Attorney General
Sen. Robert Byrd (D-WV), President Pro Tempore of the Senate[22]
# 2008 State of the Union: Dirk Kempthorne, Secretary of the Interior[23]
# 2009 presidential inauguration: Robert Gates, Secretary of Defense
# 2009 presidential address to joint session of Congress: Eric Holder, Attorney General[26]
# 2009 presidential health care address to joint session of Congress: Steven Chu, Secretary of Energy

Or you may choose to take this routine ceremonial convention and imagine that it is some vast conspiracy
 

Exegetical reflection number three stands out the most for me, as an issue for Americans.

The idea that illegal and less effective methods are OK because otherwise we'd have to admit they were never legal or effective, and gosh, then someone would probably be accountable for that, is for my money just plain un-American.

In America we like accountability. We accept mistakes, but we don't see that as a license to keep on making them. We see lack of accountability as what they do in dictatorships. In the USSR and China the N-year plans failed every single fucking time, and no one ever got fired for that. We don't care for that model.

And in America we don't like torture. We think it's wrong. We see it the way Richard John Neuhaus did:


However it was initiated —- all the lawyerly vetting that went on, and all the jabber about military necessity and keeping America safe -- Khalid’s torture ended up being nothing more than torture, and only that. Somewhere well before the one-hundred eighty-third trip to the waterboard, torture was no longer merely an unproductive means of coaxing information from a suspect. It became an impersonal bureaucratized process that swiped his individuality. It was a form of mental murder


As for the nonsense that this would hurt our intelligence community, I bet most Americans would agree that nothing would empower the smart, dedicated, and effective intelligence agents who knew that torture was ineffective, as much as supporting them with a clear statement that they were right. Nothing would give them the ability to do effective intelligence gathering more than a clear denunciation of the myth that torture saved lives. It didn't. It cost lives.

As senior interrogator explains

. . . at least half of our losses and casualties in Iraq have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.

Which brings up to another American issue: as Americans, we also don't like Americans who serve our country to get killed.

We do not believe they are expendable.

And we do not believe it's OK if it was a mistake. We believe that mistakes that end up killing our men and women in uniform are heinous and there must be consequences for those who commit them.

So I see some fundamentally American issues that don't cotton to the idea that there shouldn't be consequences for the deeds in question.
 

Bart,

The CIA, like the military and the President, has a sworn duty to obey the law.

And "Ex post facto changes in "legal interpretation" have absolutely no significance at all -- I imagine that even a neo-fascist hypocrite like YOU has heard the old saying that "ignorance of the law is no excuse."

A crime is a crime, and murder is a crime in peace or war.

Meanwhile, back in reality, here's a story that needs to be broadcast as widely as possible...


Harpers --

January 18, 2010

THE GUANTANAMO "SUICIDES":
A CAMP DELTA SERGEANT BLOWS THE WHISTLE

by Scott Horton

http://harpers.org/archive/2010/01/hbc-90006368
 

Charles Gittings said...

Bart, The CIA, like the military and the President, has a sworn duty to obey the law.

As it existed at the time.

And "Ex post facto changes in "legal interpretation" have absolutely no significance at all -- I imagine that even a neo-fascist hypocrite like YOU has heard the old saying that "ignorance of the law is no excuse."

One cannot foresee and thus comply with future changes in the law. This is why ex post facto criminal laws are unconstitutional.

Meanwhile, back in reality, here's a story that needs to be broadcast as widely as possible... THE GUANTANAMO "SUICIDES":
A CAMP DELTA SERGEANT BLOWS THE WHISTLE by Scott Horton


Scott is back to playing the innuendo again. Is there actual evidence of a crime here?
 

Here's an idea: let's pretend the law was different at the time! And let's pretend if we keep saying something, it's true!! Two great illusions that go great together.
 

Bart,

* The laws that existed at the time are fully sufficient to prosecute the Bush administration for their crimes.

* An interpretation is NOT change a change in the law.

* A lie is NOT an "interpretation".
 

IMT Charter arts. 7-8:

Art. 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Art. 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
 

Bart:

The CIA, like the military, does not want to be criminally prosecuted under ex post facto changes in legal interpretation....

There's a prohibition on ex post facto changes of law. Changes of "interpretation" are not prohibited (just as is rejection of illegal "get out of jail free" cards). You rely on lawyers' advice at your own peril ... particularly WRT malum in se crimes.

Cheers,
 

As to legal accountability, when the subject to investigations arose here as to John Yoo, the overall sentiment our hosts was that it would be quite troubling, even if the only thing at stake was the chance his academic position would be at risk.

In fact, it was left to comments to provide the other side, a partial dissent sneered at by a guest commentator, whose petty comments was responded to by in effect (as I recall) almost apologetically.

Likewise, it was left to comments by Dilan and others to remind Marty Lederman the position that Arne and others reaffirm here: a "just following orders defense" has its limits, even if provided by executive officials you traditionally expected to provide credible legal opinions.

So, I'm glad Prof. Levinson is on record wishing for some possibility of legal liability, which I'd hope would lie at the top dogs as much as lower echelon sorts.
 

Charles Gittings said...

Bart, The laws that existed at the time are fully sufficient to prosecute the Bush administration for their crimes.

IYO.

An interpretation is NOT change a change in the law.

Tell that to the defendant being charged under a novel application of a vague statute. See the recent use of the vague honest services fraud statute under appeal to the Supreme Court.

IMT Charter arts. 7-8...

Has no bearing on our criminal justice system.


Bart: The CIA, like the military, does not want to be criminally prosecuted under ex post facto changes in legal interpretation....

Arne Langsetmo said...There's a prohibition on ex post facto changes of law. Changes of "interpretation" are not prohibited.


That is correct, which makes the ex post facto changes of interpretation so insidious, especially for war fighters operating under laws made intentionally vague.

You rely on lawyers' advice at your own peril.

You rely upon your own lawyer's advice at your own peril. However, you may rely upon a prosecutor's advice with somewhat more assurance because that prosecutor may nor usually prosecute you for acts which he stated were not a crime.
 

Bart,

What a crock that is. There isn't anything vague about the war crimes statute (18 USC 2441), and the federal statues covering conspiracy, assault, kidnapping, murder, and obstruction of justice are also clear.
 

[Charles Gittings]: An interpretation is NOT change a change in the law.

[Bart]: Tell that to the defendant being charged under a novel application of a vague statute. See the recent use of the vague honest services fraud statute under appeal to the Supreme Court.


As I said, this hardly applies to malum in se crimes, and the prohibitions against torture and CIDT are hardly vague or absent from the record in case law and history (despite your repeated claims to the contrary). Your wish that they be vague only shows your own limitations, legal and ethical, Bart.

Cheers,
 

[Arne Langsetmo]: There's a prohibition on ex post facto changes of law. Changes of "interpretation" are not prohibited.

[Bart]: That is correct, which makes the ex post facto changes of interpretation so insidious, especially for war fighters operating under laws made intentionally vague.


So what Yoo did should have been taken with a large grain of salt, eh?

I would note for the record that the CAT is not in any way "intentionally vague"; to the contrary, it went out of its way to be absolute and definitive, and to remove all doubt as to its purpose and scope.

Cheers,
 

[Arne Langsetmo]: You rely on lawyers' advice at your own peril.

[Bart]: You rely upon your own lawyer's advice at your own peril. However, you may rely upon a prosecutor's advice with somewhat more assurance because that prosecutor may nor usually prosecute you for acts which he stated were not a crime.


True but irrelevant.

Cheers,
 

"I would note for the record that the CAT is not in any way "intentionally vague"; to the contrary, it went out of its way to be absolute and definitive, and to remove all doubt as to its purpose and scope."

So did the commerce clause, for all it helped. I find it verging on hilarious the way liberals find language clear and binding, or vague and unbinding, as they find convenient.

Retroactive interpretation is ok? Cool! I guess we can start the civil rights lawsuits against the gun control movement, based on Heller.
 

CG: There isn't anything vague about the war crimes statute (18 USC 2441)

Then you will have no problem drafting an objective definition of torture for jury instructions which includes methods you think are unlawful while excluding the methods blessed in the Army Interrogation manual that the current DoJ thinks is lawful which is actually derived from the statutory language.

I won't hold my breath. Far more knowledgeable folks than yourself have declined to even try to answer this challenge.
 

Brett,

Comparing a specific criminal statute to a general constitutional provision is idiotic. All you're proving is your own dishonesty and contempt for the laws.
 

"Then you will have no problem drafting an objective definition of torture for jury instructions which includes methods you think are unlawful while excluding the methods blessed in the Army Interrogation manual that the current DoJ thinks is lawful which is actually derived from the statutory language."

Oh, as if I haven't already gone over this stuff with you more times than I can count?

Or as if what I said about 18 USC 2441 (war crimes) had anything to do with 18 USC 2340-2340A (torture)?

I don't care about the Army field manual -- and you'll have to show me where I've ever said otherwise. It's irrellevant, but I wiil answer you on the actual law here.


"Far more knowledgeable folks than yourself have declined to even try to answer this challenge."

Oh really?

Prove it.
 

Prof. Levinson,

Thanks for your observations. The point that is repeatedly missed by all comments is that Gen. Hayden is arguing for a blanket exoneration for ALL CIA actions, even those that exceeded the legal advice provided by OLC. There is simply not sufficient information available in the public domain to even understand whether the ongoing review of actions apparently reviewed by the previous administration DOJ is even a reinterpretation. That earlier review and declination to prosecute may have been heavily influenced by the classified nature of the subject matter (enhanced interrogation techniques) that had not, at that time, been sufficiently declassified to warrant criminal trials using the limited protections of CIPA. Although CIPA can protect particular pieces of classified material, it does not prevent knowledge of overall subject matter of a prosecution. Thus, administrative action was apparently taken instead. [As an aside, despite the protestations of many partisan commentators, administrative action does not preclude later criminal prosecution, as many a military member has learned when the subjects of previous non-judicial punishments have been added as charges at subsequent courts-martial.] So, my point is that changed factual circumstances may count for different prosecutorial decisions much more than "reinterpretation" of the law.

On a non-legal point raised by Gen. Hayden's comments, his blanket intimation that CIA won't do their jobs for the next 4 years is a personal affront to every single CIA employee and questions their professionalism. It must be remembered that many high-level CIA officers disagreed with the aggressive techniques used and the vast majority of CIA employees were not even aware of the techniques being used. Classification of sources and methods is often more effective at preventing our own side from learning something than keeping it from the other side.
 

Charles:

The "war crime" you are alleging is torture. As with all criminal acts, it must be defined in jury instructions so the jury does not convict a defendant for acts which are not a crime. In short, a prosecutor and defense attorney needs to be able to draw a line based upon statutory language between what is and is not criminal. I do this for every trial which does not involve a standard jury instruction.

You have repeatedly claimed that it is a simple matter to determine from the statute what is and is not criminal. Charles, either walk the walk and draft jury instructions setting out that line or man up and admit that you are wrong.
 

The question of whether interpretation "changes" would be ex post facto under the Constitution brings to mind the continuing search for the "Holy Grail of Constitutional Interpretation" battles between originalism and living constitutionalism (each in their various versions). Larry Alexander has come up with what I would describe as "tongue-in-cheek" originalism with his paper titled "Telepathic Law" recently posted with SSRN (forthcoming in Constitutional Commentary) available at:

http://ssrn.com/abstract=1536055

It runs a short double-spaced 8 pages with no footnotes and no citations, i.e., a quick read. Perhaps someone will critique this paper with the title: "Telepathetic Law."

On a more serious vein, SSRN offers the "Introduction" to Tom Ginsburg, James Melton and Zachary Elskins' recently published book "The Endurance of National Constitutions" available at:

http://ssrn.com/abstract=1536925

that runs 11 single-spaced pages.

In this quest, we can all tilt at constitutions comparatively.
 

Brett:

[zuch]: "I would note for the record that the CAT is not in any way "intentionally vague"; to the contrary, it went out of its way to be absolute and definitive, and to remove all doubt as to its purpose and scope."

So did the commerce clause, for all it helped.


A one-liner is as specific as a 33 article treaty?!?!?

Did the Commerce Clause use terms such as "[no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency..."?

Cheers,
 

Brett:

Retroactive interpretation is ok? Cool! I guess we can start the civil rights lawsuits against the gun control movement, based on Heller.

I didn't say "retroactive interpretation" (such as what Yoo did) was OK. There's well-established law on the retroactive effect of changes in law (in the form of court-made law); you might look at these (you'll find, FWIW, that conservatives have been pretty consistent in denying such retroactive application). After you do, explain how Heller applies in that context to any specific instance you find an injustice.

But go for it. What would be the legal basis for such a suit? § 1983? Against whom? Legislators? Let's see your argument.

Cheers,
 

Did anyone catch the Christmas bomber hearings before Congress?

When the Obama Administration took the CIA out of the business of interrogating enemy combatants last year, Obama claimed he was going to replace them with a new task force. Well, CIA is out of the interrogation business, but these incompetents have failed to assemble the new team.

These same brainiacs admitted that they never planned for how to handle an al Qaeda terrorist who managed to enter the country.

The FBI never contacted the DNI or Secretary of Homeland Security after capturing the Christmas bomber and giving him Miranda.

I wonder how many more people have to die before we get serious again.
 

Bart,

Oh, AS IF a lying, malicious, hypocrite like you has a single serious thought in your addled head.

But here you go. . .

From the start, I've considered the physical prisoner abuse secondary to the unlawful detentions and legal malfeasance by the White House, DoD, DOJ, and the intel agencies. I could not care less about jury instructions; my concern is probable cause, and I've had that beyond a doubt since February 7, 2002. The evidence and crimes have been piling up ever since.

Tellingly, the IMT Charter doesn't even mention torture, the standard being simply "murder or ill-treatment", which covers everything from simple assault on up to roasting someone alive over a slow fire. See IMT art. 6(b):

"WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity[.]"

The standard in CA3 is "cruel treatment and torture".

The standard in Geneva IV art. 147 [grave breaches] is "torture or inhuman treatment".

Grave breaches of Geneva are offenses pursuant to 18 USC 2441(c)(1). The torture statue is surplus. CAT, like the Genocide Convention, exists to prohibit such things in peace-time within any nation that might commit such crimes against the domestic population.

QED.
 

Charles:

Let me help you with your task.

You need a criminal violation of the US Code to prosecute folks in federal court. Alleged treaty violations are not criminal acts. You have offered grave breaches of Geneva pursuant to 18 USC 2441(c)(1).

I presume these are the breaches to which you are referring:

(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.


These broad definitions are intentionally largely identical to one another and to the torture statute.

Your task as a DoJ prosecutor is to draft jury instructions based upon the statutory language which draw a discernible line between whatever you consider to be "torture" or "cruel or inhuman treatment treatment" and what your bosses consider to be lawful interrogation under the Army interrogation manual.

This is what no one here or elsewhere who claims that these definitions are easily applied has been able to accomplish.
 

Bart,

I require no help from the likes of you. You appear to need help reading English -- but don't take that amiss, most of us know you're just a liar.

You were told EXACTLY what the relevant language is: "torture or inhuman treatment" pursuant to Geneva IV art. 147 as it is executed by 18 USC 2441(c)(1).

As for MCA 2006, Congress has no authority to either change or nullify Geneva, and Common Article 3 is inapplicable in any case. For that you can read my amicus brief in Kiyemba v. Obama.
 

Bart:

Did anyone catch the Christmas bomber hearings before Congress?

[...]

These same brainiacs admitted that they never planned for how to handle an al Qaeda terrorist who managed to enter the country.


This is relevant here to a terrorist bomber on a flight over the Atlantic exactly how?

Bart, of course, knows how to interrogate pieces of legs and spleen....

Cheers,
 

Charles:

Do you even know what jury instructions are?
 

Bart:

Your task as a DoJ prosecutor is to draft jury instructions based upon the statutory language which draw a discernible line between whatever you consider to be "torture" or "cruel or inhuman treatment treatment" and what your bosses consider to be lawful interrogation under the Army interrogation manual.

I don't see any difficulty.

See here and here and here and ....

Of course, Bart, should you end up defending a person charged with torture, you may move for your own preferred "torture" instructions to the jury. But to say that this is impossible is simply stoopid ... or dishonest.

Cheers,
 

Of course I know what jury instructions are -- they simply aren't relevant outside the context of an actual trial. Now take your lying, criminal, neo-fascist BS and SHOVE it.
 

Arne:

Two of your links to state torture cases provide very useful statutory contrasts to the intentionally vague federal treaty and statutory definition of torture. These would be great examples of how to reform the US Code.

From the second link is this description of the state statute:

On or between the 1st day of June, 2003 and the 28th day of February, 2004, in the County of El Dorado, the crime of TORTURE, in violation of PENAL CODE SECTION 206, a Felony, was committed by RICHARD W. HAMLIN, who did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury, as defined in Penal Code Section 1202.7

This is a far more specific and superior statutory definition of torture than the intentionally vague federal statutory definition. The infliction of severe pain is not a substantive element, but rather is an intent element. The substantive elements are a well defined purpose and the infliction of great bodily injury, which will be defined further defined under statute.

From the third link:

[T]he offense of murder by torture has two essential elements: (1) the act or acts that caused the death must have involved a high probability of death, and (2) the defendant must have committed such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.

Once again, the cruel pain and suffering is not a substantive element, but rather an intent. The substantive element is acts that lead to death and can be objectively determined by a jury with the assistance of a coroner.

The jury instructions would be simple in both the state cases.

In contrast, the only substantive element in the federal definition is the infliction of severe pain, which a jury cannot objectively determine even with the assistance of a medical expert because the medical professional will testify that pain cannot be objectively quantified.

arne, you are also welcome to offer jury instructions based upon the federal statutory language which draw a discernible line between whatever you consider to be "torture" or "cruel or inhuman treatment treatment" and what your bosses consider to be lawful interrogation under the Army interrogation manual.
 

Bart:

Two of your links to state torture cases provide very useful statutory contrasts to the intentionally vague federal treaty and statutory definition of torture. These would be great examples of how to reform the US Code.

From the second link is this description of the state statute:

"On or between the 1st day of June, 2003 and the 28th day of February, 2004, in the County of El Dorado, the crime of TORTURE, in violation of PENAL CODE SECTION 206, a Felony, was committed by RICHARD W. HAMLIN, who did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury, as defined in Penal Code Section 1202.7"


Which is about as specific as the CAT and 18 USC § 2441 definitions. I see no meaningful difference in specificity:

"... with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury..."

and:

"(A) ... a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind."

Cheers,
 

Bart:

Do you want to look like a complete eedjit???

From the third link:

[T]he offense of murder by torture has two essential elements: (1) the act or acts that caused the death must have involved a high probability of death, and (2) the defendant must have committed such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.

Once again, the cruel pain and suffering is not a substantive element, but rather an intent.


This is bullsh*te. The intent is just as much as "substantive element" of the crime as is the actus reus.

18 USC § 2340:

“torture” means 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;

I see no meaningful difference here either. I'd note that this also contains an actus reus (highlighted).

The substantive element is acts that lead to death and can be objectively determined by a jury with the assistance of a coroner.

This is bullsh*te also. Many laws do not specify any specific physical act is necessary to constitute the offence (and this is a good thing too, as getting specific would leave holes the size of trucks for shysters like Bart to drive through). One of the laws I linked to required a specific actus reus but that's because that's the definition of the crime: "Murder by torture".

Anyone who retains Bart as a criminal defence lawyer has a fool for a lawyer. Bart, should he try this crapola in a court of law, would just piss off the judges something terrible....

Cheers,
 

Arne:

Under the federal statute, you must have both the act of inflicting severe pain and the intent to do so. The two state statutes limit severe pain to an intent element.

Limiting a quality such as severe pain to intent is a superior approach because it is medically impossible to define severe pain and you are essentially allowing the jury to find someone criminally liable based upon their completely subjective opinion of the act without any reference to the law.

In any case, I not have joined Charles in a failure to offer jury instructions based upon the federal statutory language which draw a discernible line between whatever you consider to be "torture" or "cruel or inhuman treatment treatment" and what your bosses consider to be lawful interrogation under the Army interrogation manual.

Don't worry. The task is impossible.
 

Bart:

Are you hard of reading?

Under the federal statute, you must have both the act of inflicting severe pain and the intent to do so. The two state statutes limit severe pain to an intent element.

I actually quoted from two federal statutes, and neither requires "the act of inflicting severe pain":

10 USC § 2340:

"(1) 'torture' means 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:

18 USC § 2441:

"(d)(1)(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind."

Both require the intent to cause "severe physical or mental pain". Right there in the language. Stop being obviously obtuse and/or disingenuous, Bart. It's not seemly for an erstwhile lawyer.

Limiting a quality such as severe pain to intent is a superior approach because it is medically impossible to define severe pain and you are essentially allowing the jury to find someone criminally liable based upon their completely subjective opinion of the act without any reference to the law.

You're working from an obviously incorrect factual assumption. But your 'reasoning' here is even more curious: Do you really think that it's impossible to specify what causes "severe pain", yet quite permissible and trivial to instruct a jury that a requisite element of the crime is the "intent" to cause this allegedly undefinable thing? Even a pedestrian jury would find such 'logic' laughable.

In any case, I not have joined Charles in a failure to offer jury instructions based upon the federal statutory language which draw a discernible line between whatever you consider to be "torture" or "cruel or inhuman treatment treatment" and what your bosses consider to be lawful interrogation under the Army interrogation manual.

Who says the Army manual carries the legal force of a Supreme Court decision?

Don't worry. The task is impossible.

Let me amend that: Your task is impossible. You asked for jury instructions. You got them. You've been pwn3d. I truly feel sorry for any sad sack defendant that unwisely chooses to retain you. From what you write here, you ought to be disbarred.

Cheers,
 

Классные мультики мультфильм на кинозоуне.
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