25On one occasion an expert in the law stood up to test Jesus. "Teacher," he asked, "what must I do to inherit eternal life?"Okay, I spent my morning teaching "definition" as an essay and argument form in Freshman English, using as an example the definition of "torture." My analysis ran along lines provided in the textbook, ab initio anyway, distinguishing torture from interrogation, but assuming the two lay on a spectrum with interrogation at one end, torture at the other, and somewhere in between the "line" that gets crossed when you come from allowable (interrogation) to not allowed (torture). All in keeping with the public discussions of torture that have flailed around since allegations of water boarding and sleep deprivation and other techniques first surfaced.
26"What is written in the Law?" he replied. "How do you read it?"
27He answered: " 'Love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind'[a]; and, 'Love your neighbor as yourself.'[b]"
28"You have answered correctly," Jesus replied. "Do this and you will live."
29But he wanted to justify himself, so he asked Jesus, "And who is my neighbor?"
But, I almost immediately asked: is torture simply an extreme form of interrogation? That isn't how the US Code defines it:
“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;But I didn't use that definition. Instead, I pointed out to the class, we generally define torture as the intentional infliction of harm on a subject capable of suffering, and would all agree torture inflicted by a sadist on a victim, or by a despotic government as a means of maintaining control (my examples were the governments of Central American in the 1980's, trained in the School of the Americas in Atlanta, Georgia. Most of my students aren't old enough to remember the '80's. Most of them aren't old enough to have been alive in the '80's!) Then I wondered what the distinction was between torture that was evil, as in those two categories; and torture that might almost be "good," as in the question of: "When does interrogation become torture?"
And then I read this:
A voluminous report released two weeks ago by the Justice Department's ethics watchdog, the Office of Professional Responsibility (OPR), revealed in great detail how, in early 2002 after discussing "enhanced interrogation techniques" during numerous meetings with CIA, the National Security Council, then White House Counsel Alberto Gonzales and former Vice President Dick Cheney's attorney, David Addington, Office of Legal Counsel (OLC) attorney John Yoo and a 28-year-old attorney named Jennifer Koester, who was just two years out of law school, started work on a legal memo that would redefine the federal torture statute's definition of severe pain.They needed to "redefine" that term because they wanted to authorize actions by the President, to exclude them from the definition of torture which are acts prohibited by law. To do this, of course, they had to look to statutes which gave definitions of "severe pain," and not surprisingly, those statutes are all statutes that concern health care.
"The term 'emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in - (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part."That definition, as the article points out, "ended up appearing in the final version of Yoo's legal memorandum."
Well, as I say, where else are you going to look for such definitions?
There are clear problems with this approach, and not merely the problems non-lawyers would have with the very idea of using health care statutes in a perversion of their original intent (the torture techniques Yoo was writing to justify were already a perversion of psychological care, not to mention interrogation techniques). The clear legal problem is that this kind of legal analysis would never stand up in a court of law.
That standard is the sine qua non of legal analysis: would a court approve of the reasoning? It is true that many types of legal analysis, from law review articles to law firm memos to Attorney General opinions (commonly issued in Texas on points of law) are never reviewed by a court, but the standard remains: if it wouldn't fly in front of a judge, it's not worth the paper it's printed on. Not to say all lawyers hold to that standard, but all lawyers are aware of it, and know that if they can't get it past a judge someday, they want to be careful about advocating it today.
Yoo never faced that challenge, and knew he wouldn't, and it is why he has a position in a law school today, one that, I would argue, simply on the grounds of these memos, he doesn't deserve. The reasoning of these memos is so poor it would cost a first year lawyer his job in any competent law firm.* Yoo gets away with it because he knows his legal opinion will never be the subject of a court challenge, because no torture victim is going to have standing to sue the President in court, and no prosecuting attorney is going to bring a criminal charge under 18 USC 2340A against the President or any member of the Administration who might need to use Yoo's "reasoning" as a legal defense. In other words, he is simply working in a legal limbo where he knows his arguments merely provide a paper excuse for actions that no one will ever be held responsible for; at least no one with direct contact to John Yoo.
So, how do we get from torture as a technique of sadism and terrorism to torture as a technique of interrogation, when we "redefine" torture? Well, as I told my students, the question is: what is the purpose of interrogation? The purpose is to elicit reliable information. And what is the purpose of torture? Two out of three times, per my classification (sadism, terrorism, extreme interrogation), torture has no purpose except to inflict pain and suffering. How does torture become a type of interrogation, then? Does it ever? And if it doesn't, is there really a spectrum, and a line that can be crossed? Can we really establish a definition of torture that includes interrogation, distinguish between painful techniques that are valid for interrogation (such as detaining the suspect in a closed room) from those that are invalid (water boarding, sleep deprivation, or pulling out fingernails)? Is the difference really just one of degree? Or isn't it rather one of kind? How else is any other understanding of torture linked to something legitimate like interrogation? And how is it, then, that we ever link torture to interrogation, except to attempt to legitimate cruelty and sadism?
It's a difference of kind, not of degree, and no amount of sophistry can change that. Which is sort of like the case of John Yoo. Is the difference between Yoo and my law school professors really one of degree? Or isn't he fundamentally unfit to teach law students anything about the law, since he so clearly denigrates the standards of legal practice and reasoning?
Merrily we roll along....
*and no, that's not just my opinion:
The memorandum, drafted by John Yoo and OLC head Jay S. Bybee, provoked outrage and disgust among legal professionals and the public-at-large. Harold Koh, a professor of international law and the Dean of Yale Law School, informed the Senate Judiciary Committee that it was the most erroneous legal opinion he had ever read. A law professor at the University of Virginia claimed that the memo "was less 'lawyering as usual' than the work of some bizarre literary deconstructionist." In December 2004, the Department of Justice repudiated the Torture Memo, although John Yoo continues to stand by the analysis.
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