I didn’t know what waterboarding was either. But then, by doing just a bit of research into the prosecutions for war crimes, criminal law, and state department memos, it’s pretty clear that waterboarding was not ever considered not torture, and was, at times in the past, considered to be torture. Which is why I put very little credibility into the idea that Yoo and Bybee’s torture memos were “objectively reasonable”. From the patent falsity of their view of executive power to their outright creation of doubt, I can confidently conclude that they were, as us lawyers say, “full of shit”. And I have no problem with allowing a judge or jury to decide that Cheney’s alleged “reliance” on those memos to permit him to allow torture, to be unreasonable and subject to criminal prosecution. But that’s only IF there are facts sufficient to proceed. I don’t think he has a viable legal defense, but rather that there are insufficient facts to prove him guilty.
John Yoo is being interviewed on NPR right now, if anyone is interested.
Of course, he’s pimping his book, so there’s that.
Maybe they’ll have the balls to ask him about this:
I have seen him interviewed a few times. He skirts the issues . He does not want to go in the past. Can you legally justify his conclusions that waterboarding and burning down villages is ok? Maybe, but it is an ethically and morally devoid position.
That is why Bush so clearly said we are at war against terrorism. It allows them to do things that are not legal otherwise.
Well, we’re not far apart. I agree that if there were a factual allegation that he directed the content of those memos, and that allegation found support in the record, then he could be convicted. I said that several times upthread.
Uhm… ever heard of Hiroshima and Nagasaki? Those were slightly larger than villages, if I have my geography correct.
(bolding mind)
The problem with torture defenders is that they refuse to acknowledge that what they did was excessive, abusive, lawless, immoral or self-defeating. They continue to justify it as moderate in its application, harmless in its long-term effects, perfectly legal (despite the most transparent of semantic contortioning), completely moral because of the cause it was used for, and 100% effective in its results. In short, they are not honest about the true implications of what they directly approved and facilitated.
Legal analysis from one of the top legal experts in international law, Harold Hongju Koh -
So, while it might not be a criminal prosecution, it might still be practical to bring Cheney into court.
On review, Hamlet in post #161 nailed it.
Any one care to explain why an objective person wouldn’t conclude water boarding is torture? Specifically:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
Water boarding inflicts the horror of drowning, repeatedly. How could anyone not so incompetently negligent as to do basic research conclude anything differently?
Is it really Chaney’s position that he was too incompetent to do basic research a grade schooler could probably do?
This is why:
The key statutory phrase in the definition of torture is the statement that acts amount’ to torture if they cause “severe physical or mental pain or suffering.” In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be “severe.”
The statute does not, however, define the term “severe.” “In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines “severe” as “nsparing in exaction, punishment, or censure” or “*nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture.” Webster’s New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) (“extremely violent or grievous: severe pain”) (emphasis in original); IX The Oxford English Dictionary 572(1978) (“Of pain, suffering, loss, or the like: Grievous, extreme” and “of circumstances …: hard to sustain or endure”). Thus, the adjective “severe” conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.
Congress’s use of the phrase “severe pain” elsewhere in the U. S. Code can shed more light on its meaning. 'See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.")
Significantly, the phrase “severe pain”, appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one “manifesting itself by ,'acute symptoms of sufficient severity(including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture “severe pain” must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.
“The horror of drowning” does not qualify, under the plain language of the statute.
He had the research done for him and got the Office of Legal Counsel (more correctly one lawyer from the OLC and his superior to sign off) to write 2 memos about torture. In one, Yoo takes a position that the President has nigh but unlimited powers during “wartime”, including the power to order waterboarding, without being subject to violations of laws against torture. In the other, he basically OKs waterboarding and other “enhanced interrogation” techniques as not prosecutable. So Cheney takes the memos and allows the US to engage in actions that have long been considered torture. If it is ever found out about, Cheney simply says “We did nothing illegal , and here’s some attorney’s who told me it was OK, so you can’t prosecute me. See you in hell, bitches.”
The problem is that the memos are, to put it nicely, “extremely flawed”. But since the administration was told it was OK by the OLC, well then nobody gets prosecuted. And American values die another small death at the hands of the Bush administration and nobody pays for it.
You’re not seriously putting the Bricker stamp of approval by quoting the Bybee memo as intelligent and correct legal analysis are you?
'Course it does. From the law quoted in that same post of yours, yet conveniently elided in the decision you quoted:
It is “plain” to you that the horror of drowning is not the threat of imminent death? Really?
There you have it: the Bush administration defined torture to be something they aren’t doing. It’s legal because they decided it was legal. They decided it was legal because it was what they wanted to do.
I’m not sure what that is supposed to prove. Yoo’s answer seems perfectly reasonable when weighed against what is generally accepted as legal acts by presidents during WWII. Now, it’s certainly not universally accepted as legal, but it’s harly nut-job right-wing lunacy.
I was only addressing your point in that post about destroying a village. Do you think Yoo’s answer was outside the mainstream of legal thought in the US? If so, why?
Bricker, you’re actually claiming the horror of repeated asphyxiation isn’t severe suffering? Or that it isn’t the threat of imminent death?
Really? Wow.
Victims of it sure describe themselves as fearing for their life, and agonized.
Also on the topic of passing the buck onto the DOJ, wouldn’t an objective person do some research themselves? Can’t that fat assed, dead chested, war criminal even bother to lift a single book?
He already knew the answer to that, or he wouldn’t have thought to order a rationalization.
No.
I believe it to be flawed and incorrect.
But as a matter of law, a non-lawyer could reasonably read and rely upon it.
But fearing alone isn’t sufficient:
The statute does not define “severe mental pain” and “severe mental suffering” separately. Instead, it gives the phrase “severe mental pain or suffering” a single definition. Because '‘pain or suffering" is a single concept for the purposes of “severe mental pain or suffering,”. it should likewise be read as a single concept for the purposes of “severe physical pain or suffering.” Moreover, dictionaries define the words "pain’ and 'suffering" in terms of each other. Compare. e;g., Webster’s Third New International Dictionary 2284 (1993) (defining suffering as “the endurance of … pain” or “a pain endured”); Webster’s Third New international Dictionary 2284 (1986) (same); XVII The Oxford English Dictionary 125 (2d ed. 1989) (defining suffering as “the bearing or undergoing of pain”); with, e.g., Random House Webster’s Unabridged Dictionary 1394 (2d ed. 1999) (defining “pain” as ''physical suffering"); The American Heritage Dictionary of the English Language 942 (College ed. 1976) (defining pain as “suffering or distress”). Further, even if we were to read the infliction of severe physical suffering as distinct from severe physical pain, it is difficult to conceive of such suffering that would not involve severe physical pain. Accordingly, we conclude that “pain or suffering” is a single concept in section 2340.
And since waterboarding does not kill prisoners:
The third predicate act listed in section 2340(2) is threatening a prisoner with “imminent death.” 18 U.S.c. § 2340(2)(C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is “imminent.” The “threat of imminent death” is found in the common law as an element of the defense of duress. See Bailey, 444 U.S. at 409. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably mows and adopts the cluster of ideas that were
attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U.S. 246, 263 (1952). Common law cases and legislation generally define imminence as requiring that the threat be almost immediately forthcoming. 1 Wayne R. Lafave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (1986). By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty that it will occur. Indeed, timing is an indicator of certainty that the harm will befall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing· Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances.