Froomkin on the torture memo

Michael Froomkin parses the OLC’s Aug. 1, 2002 Torture Memo (“the Bybee Memo”.) This is a very helpful post to read especially if you’re becoming confused by the sheer number of various torture memo leaks bombarding us daily.

After explaining what the OLC is ( Justice Department’s Office of Legal Counsel) and sketching the relationships between the various legal offices and lawyers in the FedGov, Froomkin sets up his argument:

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in 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).

The memo concludes that the restrictions are very limited — that 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 (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

  • This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.
  • This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.
  • Nowhere do the authors say “but this would be wrong”.
  • Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo
  • This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. 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?

Read the rest….

A particularly interesting bit from the end:

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security – so if that’s legal, what the hell are we charging Saddam Hussein with?