Torture Awareness Month – Day 7
On August 1st 2002 a prophet wrote The Book of Babee actually it was a memo, but that doesn’t fit with my biblical reference. In this book he details the very bowls and depths to which an interrogator may abuse his detainee under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute). Many believe this book to be the defining point of mans descent into clutches of our animalistic heritage. That very thing we try so hard to repress as a civilized Nation. But as you will see there is nothing civilized about this book. Quite simply put, it is the modern day story of legal murder.
This prophet comes to us from a religious order called the Justice Department’s Office of Legal Counsel (OLC) or commonly referred to as “the Attorney General’s Lawyer”. If being a lawyer is truly evil, then this man is the right hand of the Dark Lord himself. The head of the OLC was Jay Bybee, (The Prophet) now a sitting judge on the 9th Circuit. His signature (in blood) appears on page 46 of this memo / scripture.
His story of legal torture is undeniable truth that anything can be righteous from the right point of view. The scroll concludes that the restrictions under the law are limited. Only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain -not- intended to have lasting effects (If they do then obviously this person faith was not strong enough), and physical pain less than that which accompanies “serious physical injury such as death or organ failure” (p. 46). This of course means that -some- cruel, inhuman, or degrading acts are allowed, only those that are “extreme acts” (committed on purpose) are frowned upon.
Much of what is contained in this holy writing is derived from a much more sinister book called the Draft Walker Working Group memo. In the views of the prophet, there’s basically nothing Congress can do to constrain the President’s exercise of Article 2 war power. The Geneva Conventions are, by the unavoidable implications of this memo, just another goddamn piece of paper the President has the right to ignore. Similarly this implies any other international agreement is non-binding if it impedes the Presidents holy crusade against “The War on Terror.”
Anyone else have the sense that this won’t be received well in the International Community?
“And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?”
From this point forward I will let the scholarly unravel the finer points of this document. It’s a long read, but worth every minute. I hope you enjoy the professor’s personal points of view that are peppered within this dissection.
Synopsis and commentary:
Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo
Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.
Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent `cruel, inhuman or degrading treatment or punishment,’ only insofar as the term `cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).
It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of `torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.
So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.
Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.
The rest of the article can be found HERE
(Hat Tip Michael – From Discourse.Net)
