Another Torture Memo

The Washington Post has printed the Office of Legal Counsel’s memo from August 1, 2002, in full.

Some thoughts:

1. I had wondered before where they came up with “the level [of pain] that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure,or serious impairment of body functions” as the definition of “severe pain.” I got the answer on pages 5-6: it’s mostly from a 2000 provision of the U.S. code that defines a medical emergency for health coverage purposes. There are several problems with this:
a) It appears that the health care law was passed years after the torture convention legislation.
b) It’s a completely different subject matter and context. The risk of organ failure and death obviously is quite relevant in defining an emergency medical condition; it’s not clear why it would be relevant in defining “severe pain” or “torture.” I would also submit that, there is no f*cking way that one single legislator voting on the health care bill thought that line had any relevance whatsoever in defining torture down.
c) Even the health care law law does NOT define “severe pain” as “the pain associated with death, organ failure, yadda yadda.” Rather, it defines an “emergency condition” as one that manifests itself in acute symptoms “including severe pain”; and that could result in death, organ failure, or serious impairment in bodily functions without medical attention.

If I passed a law defining “border collies” as “dogs that are black and white and herd sheep”, would it prove that no brown or grey dogs could herd sheep? If I passed a law that defined statutory rape as “having sex with a girl under 18”, would that prove that sex had to involve a girl under 18? Because that’s essentially the logic that this section uses.

Aside from the health care statute, they rely on very carefully chosen dictionary definitions. Hmm, I wonder why they needed to go all the way back to 1935 to find a dictionary that defined “severe”…

2. This quotation from p. 27 is too long for any of the news stories to pick up, but I think it really captures the spirit of this memo:

“At the other end of the spectrum, is the court’s determination that a beating in which ‘Vuckovic hit plaintiff Subasic and kicked him in the stomach with his military boots while Subasic was forced into a kneeling position[]’ constituted torture. Id. To be sure, this beating caused Subasic substantial pain. But that pain pales in comparison to the other acts described in this case. Again, to the extent the opinion can be read to endorse the view that this single act and the attendant pain, considered in isolation, rose to the level of ‘severe pain or suffering,’ we would disagree with such a view based on our interpretation of the criminal statute.”

3. This memo takes exactly the same position as the Defense Department’s on the President’s unlimited authority. From p. 31:

“Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.”

In other words: The Consitution gives the President command over the military. We’re at war. If the military tortures people they may find out information that prevents an attack on us. Therefore, it is unconstitutional for Congress or the courts to try to stop the President from commanding the military to torture people.

4. Perhaps most important is the Post’s explanation of the circumstances in which the memo was written, and its level of authority:

“The CIA asked the White House for legal guidance. The White House asked Justice Department’s Office of Legal Counsel for its legal opinion on the standards of conduct under the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment.

The Office of Legal Counsel is the federal government’s ultimate legal adviser. The most significant and sensitive topics that the federal government considers are often given to the OLC for review. In this case, the memorandum was signed by Jay S. Bybee, the head of the office at the time. Bybee’s signature gives the document additional authority, making it akin to a binding legal opinion on government policy on interrogations. Bybee has since become a judge on the 9th U.S. Circuit Court of Appeals.”