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Logic, Tortured

March 3, 2010

Khalid Sheikh Mohammed is reported to have been waterboarded 183 times. If that sounds bad, the CIA arguably did not torture KSM to the extent that the Office of Legal Council (OLC) tortured logic in its legal justification of enhanced interrogation techniques.

To their credit, some OLC lawyers — among them Daniel Levin and Jack Goldsmith — challenged the more extreme conclusions drawn by the Bybee, Yoo, and other memos. These more moderate OLC lawyers do uphold the Bybee Memo’s conclusion that waterboarding is not torture (tragically); but they nevertheless do not fail to miss what no sane observer could fail to miss. Which should count for something.

Here is AAG Jack Goldsmith on the Yoo Memo’s rejection of the UN Convention Against Torture treaty:

With respect to treaties, [the Yoo Memo] maintains that a presidential order of an interrogation method in violation of the CAT would amount to a suspension or termination of the treaty and thus would not violate the treaty. [Yoo Memo] at 47. It is true that the President has authority, both under domestic constitutional law . . . and international law . . . to suspend treaties in some circumstances. But it is error to say that every presidential action pursuant to the Commander-in-Chief authority that is inconsistent with a treaty operates to suspend or terminate that treaty and therefore does not violate it (p. 120).

O noble Bush administration lawyer! O excellent young man!

Here is the OPR Report summarizing AAG Daniel Levin’s disapproval of the “specific intent” provision of the Bybee Memo:

Levin modified the discussion of specific intent, which he also believed to be wrong. As presented in the Bybee Memo, Levin thought the section “suggested that if I hit you on the head with a . . . hammer, even though I know it’s going to cause specific pain, if the reason I’m doing it is to get you to talk rather than to cause pain, I’m not violating the statute. I think that’s just ridiculous” (p. 130).

Most learned Bush administration lawyer!

Finally, here is Deputy AAG Patrick Philbin on the argument that enhanced interrogation techniques, even when combined, do not violate the statute:

[I] did not think the [Combined Effects Memo] provided a sufficient analysis to conclude that depriving a person of sleep for days on end while keeping him shackled to the ceiling in a diaper and at the same time using other techniques on him would not cross the line into producing “severe physical suffering” (p. 141).

O wise and upright Bush administration lawyer!

Where would the OLC be without such fine legal minds? Putting the thumbscrews to basic arithmetic, I suppose.

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