Torturing lawyers
WASHINGTON — It is supremely surreal to find oneself sipping sparkling water in a sunny hotel courtyard, dispassionately discussing the legalities of torture.
Yet, there we were, an attorney and I, poring over memos about waterboarding as if they were weekend real estate ads. Three bedrooms, two baths, no more than 40 seconds without breathing, fenced yard, a flexible false wall for "walling."
The moment was both ironic and grotesque -- a clown's nose on civilization.
Our purpose was to examine the memos in the context of the growing drumbeat for "justice" aimed at federal Judge Jay Bybee and law professor John Yoo, both attorneys who interpreted the law to allow waterboarding among other interrogation techniques.
In the weeks since Barack Obama released the so-called "torture memos," both men have been demonized and tried in the public square for expressing a now-unpopular legal opinion. Depending on the outcome of an investigation pending in the Justice Department, the men could face sanctions or, in the case of Bybee, impeachment.
When did we start punishing lawyers for producing opinions with which we disagree? And where does that road lead?
It is easy now to declare that waterboarding is torture. I personally would agree, but then, I have a low tolerance for the sensation of drowning and the perception of imminent death. And, unlike the prisoners whose treatment has been questioned, I've had no preparation for such trials.
Fortunately, the CIA did not consult me when it needed information from al-Qaeda leader Abu Zubaida six months after the 9/11 attacks. Instead, the agency asked government attorneys to interpret whether 10 interrogation techniques, including waterboarding, would violate the 1994 statute prohibiting torture.
Keep in mind: Terrorist chatter at the time was comparable to pre-9/11 levels. And the CIA had determined that Abu Zubaida had crucial information about another attack.
Bybee and Yoo didn't have much to go on since no court had ever interpreted the statute, but the law is fairly specific. It defines torture as inflicting pain that is "difficult to endure" and that is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Contrary to what I and others previously have written, the memos did not conclude that techniques could only be torture if they cause "death, organ failure, or serious impairment of bodily functions." That would have left open the possibility for a range of clearly unacceptable abuses. Consider this a correction.
Whether one agrees with the Bybee-Yoo interpretation is a difference of opinion, but nothing more. Any fair assessment has to include consideration of context and distinctions that matter, including the definition of waterboarding, which varies according to country and century.
I have no interest in defending one against the other, but there are significant differences between what the Japanese did during World War II, for example, and what was authorized by the U.S. government.
The Japanese forced water into the prisoner's nose and mouth. In our own version, the prisoner's mouth and nose are covered with a cloth that is saturated with water for no more than 20-40 seconds in a controlled manner. No water enters the lungs. Moreover, the same technique is used to train our own military personnel, who do not suffer severe physical pain or prolonged mental harm.
Thus, the attorneys deduced that waterboarding, though extremely unpleasant, wasn't torture. It was never up to the attorneys to express an opinion about whether waterboarding was good policy. Their only role was to interpret the law in good faith.
Even if Bybee and Yoo were wrong, their error doesn't rise to the level of an ethical offense, much less a war crime. Under the Justice Department's own standards, an ethical issue would arise only if their opinion was so obviously wrong that no reasonable lawyer could possibly reach the same conclusion.
By that standard, the only obvious wrong is the continued persecution of Jay Bybee and John Yoo. The effect sanctions might have on future lawyering, meanwhile, could be chilling.
In testimony Wednesday before a Senate judiciary subcommittee, law professor Michael Paulsen (University of St. Thomas) predicted that "presidents and administrations of both parties will not obtain candid, vigorous legal advice reflecting the full range of views, on sensitive matters of war, foreign affairs and national security."
America's enemies could hope for no more.
May 20, 2009 at 8:01 p.m.
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"You wouldn't know anything about that would you."
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You are correct, I don't know your mother; just a hunch.
May 20, 2009 at 10:27 a.m.
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You wouldn't know anything about that would you.
May 19, 2009 at 8:02 p.m.
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"A fetus has a parasitic relationship with the mother "
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I bet your mother is smiling with glee over her very own parasite.
May 19, 2009 at 3:01 p.m.
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The only true way to torture lawyers would be to set the amount they can get if they win to 10%. I can hear them screaming already.
May 19, 2009 at 2:22 p.m.
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RATS! I read the headline and thought it was about whether or not we should torture lawyers! (I voted yes!) [Before anyone gets excited - it is a joke, people.]
May 19, 2009 at 2:03 p.m.
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Your assumption is that anyone taken into custody is a nut case so therefore ok to torture. Under what authoritarian regime did you learn about presuming guilt? In the practicing world a fetus is not a baby. A fetus has a parasitic relationship with the mother which is why the mother and not some un-experienced man gets to decide this issue. I don't here anyone crying to god about miscarriages. What do you think happens to a fetus in a miscarriage?
So we can torture people. But we have to discharge 54 Arabic military interpreters because they have crossed the line by being gay. Exactly how is the military and CIA defending us?
May 19, 2009 at 12:07 p.m.
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"we are talking about torturing sentient beings."
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Really oh wizard. Lets hear your spin of this tale. How does a fetus that has have no sense of anything (in our world---your wording), yet a nutcase wanting to leave our world to become non-sentient differ and the later be afforded life while the former not?
May 19, 2009 at noon
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“the difference is about a mile wide. Military personnel know that eventually the waterboarding they are subjected to is for training and will end shortly. Prisoners are not afforded that luxury. It is an absurd argument.”
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In your lame mile wide theory it all comes down to knowing it will end…then it is not torture after all? To think all this time you have been saying the opposite…hmmm.
May 19, 2009 at 11:08 a.m.
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darwin1,
Fetus is a Latin word that means baby.
May 19, 2009 at 10:58 a.m.
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whoanelli, it isn't a baby it is a fetus, just as you are alive and not an undead corpse. And we aren't talking about abortion we are talking about torturing sentient beings.
brwe, she doesn't want to hang people who disagree with her. She wants to hang those who torture or justify that torture with convoluted arguments that defile "liberty and justice for all".
May 19, 2009 at 10:17 a.m.
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janesvillean--I don't know why you have so much trouble understanding plain English. Ms. Parker, who agrees in principle with your views on torture, wrote an extremely clear & thoughtful piece. In response, you ignore most of her reasoning & go off on a rant, attacking people who frequently have to make decisions none of us would want to. I clearly stated, "I may be wrong...", simply because I WASN'T SURE! So, you attack me as ignorant--because I disagree with you, like the majority of our citizens? Darwin--I didn't catch whether you're backing janesvillean's right to hang those he/she disagrees with.
May 19, 2009 at 9:43 a.m.
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And yet people like janesvillean would let the torture of babies go on in late term abortion in the name of legality! It is the same thing, where are your morals now???
May 19, 2009 at 9:39 a.m.
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"The Japanese forced water into the prisoner's nose and mouth. In our own version, the prisoner's mouth and nose are covered with a cloth that is saturated with water for no more than 20-40 seconds in a controlled manner. No water enters the lungs. Moreover, the same technique is used to train our own military personnel, who do not suffer severe physical pain or prolonged mental harm."
The difference is about a mile wide. Military personnel know that eventually the waterboarding they are subjected to is for training and will end shortly. Prisoners are not afforded that luxury. It is an absurd argument. If they are so concerned about what was going to happen then why have they discharged 54 Arabic interpreters for being nothing more than gay. Clearly, they are not as concerned about defending us as they claim. Sad but true.
May 19, 2009 at 9:21 a.m.
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The United States is signatory to the United Nations Convention on Torture. You seem ignorant of this fact, as well as its legal implications.
May 19, 2009 at 12:22 a.m.
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janesvillean--Maybe you should re-read the editorial--this time, with a dictionary at hand. The relevant law is imprecise, as is too often the case. Were it precise, our courts are way too eager anymore to "adjust" the intent regardless. Liberals who pretend not to understand this, lie! Since no court has seen fit, so far, to interpret this particular statute, the lawyers COULD only give an opinion--which we are all free to civilly disagree with. I could be wrong, but I believe the only treaty that comes close to addressing the issue is the Geneva Convention--which clearly applies only to uniformed troops. Finally, I'd like to know which moral standards-outside the Arab world-impose capital punishment on those whose opinions are unpopular. Certainly, to say, "By any moral standard...", is laughable!
May 18, 2009 at 7:29 p.m.
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"It is supremely surreal to find oneself sipping sparkling water in a sunny hotel courtyard, dispassionately discussing the legalities of torture."
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Yes, yes it is, Kathleen. But that is where the Bush administration has taken us -- into the legal spaghetti that is the self-justification used by a third-world regime.
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It is pretty simple. Those who write legal justifications for monsters are themselves monsters, barely deserving of the designation human. More to the point, this country signed a treaty which holds the enablers of torture responsible. It isn't something odd or strange; we have always used that standard against tinpot dictators, brushing away their desire to pin everything on bad apples and zealous underlings. The treaty was written with such despicable characters in mind. We signed it; the Senate affirmed it; and now, by the language of our Constitution, it is the Supreme Law of the Land.
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These judicial homunculi decided they could argue their way around the supreme law of the land. By any moral standard, they should hang.
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