Daniel DeGroot of OpenLeft comments on the OLC memos
Contents
1. s the whole point so that he will conclude exactly what Bybee claims no reasonable person would conclude How s that for absurd Legal Sophistry Simply asserting night is day over and over only takes Bybee so far in the effort to bridge the chasm between torture and legally defensible behaviour We will consider physical pain and mental pain separately p9 Why is this justified The victim will experience them together can see a certain amount of sense from an analytical standpoint but you do need to eventually combine their effects With respect to physical pain we previously concluded that severe pain within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury pp9 10 Here he has narrowed the definitions of the terms used in the statutes enough to squeeze by CIA s program As we saw above he still needs to make plainly wrong statements about things not being difficult to endure despite the fact that normal people can t in fact endure them As we understand it when the waterboard is used the subject s body responds as if the subject were drowning even though the subject may be well aware that he is in fact not drowning p11 as if the subject were drowning well yes when you can t breathe oxygen because you re strapped to a table and someone is pouring water on your face you are in fact dro2. Open Left A Detailed Journey Through the Bybee Memo Part 1 1 of 4 A Detailed Journey Through the Bybee Memo Part 1 by Daniel De Groot Sun Apr 19 2009 at 17 30 Digby and DDay have been covering the growing calls for the impeachment of 9th Circuit Court J udge J ay Bybee the author of this OLC memorandum endorsing the legality of the CIA s proposed interrogation tactics on Abu Zubaydah I d like to make my own run at this horrendous document Many particular passages have been repeatedly quoted but don t want to lose the burning forest for the fetid rotting trees on this one The thesis of the document is deeply flawed resting on numerous obviously ridiculous unstated assumptions Daniel De Groot A Detailed Journey Through the Bybee Memo Part 1 The document could be broken into four sections Pages 1 6 recap what OLC understands CIA is asking and some information and background on the techniques CIA has already dug up This is where the 10 infamous techniques are spelt out Pages 7 9 have a profile of Zubaydah making him out to be some kind of counter intelligence superman his iron self esteem and mental acuity apparently so daunting that this is unstated torture is simply the only way to break him Pages 9 11 quickly dismiss any idea that the techniques could be considered so physically painful as to construe torture and then from the bottom of 11 to the end of the document on page 18 is an examination on whether these
3. gerous home about amp contact OPEN LEFT PREMIUM AD ADVERTISEMENTS LSS eee See See eee Bee Be bee Se es ere aca New here Make a New Account Have an account Log in Username Password Submit Forget your username or password The OpenLeft User Manual About OpenLeft Support This Site Advertise Here http www openleft com show Diary do jsessiond 18BF6D1E4AFBD1 rss feed subscribe for email updates QUICK HITS Swine Flu Genetically Traced to Hog Farms counterspin 0 comment s Is the Chicago Machine Obama s governing model Dameocrat 2 comment s Obama May Revive Guantanamo Military Courts Dameocrat 0 comment s Obama s Violin Populist rage and the uncertain containment of change Dameocrat 0 comment s Pakistan s Biggest Threat is Western Propaganda counterspin 3 comment s Convicted Soldiers Appeal Abu Ghraib Detainee Abuse Case in Light of DOJ Memos counterspin 0 comment s Is Rahm Now Micromanging the Treasury Micheline 3 comment s Nelson in dispute with AFB glacierpeaks 1 comment s In the Alexandria area glacierpeaks 0 comment s US stopped German mission to free piracy hostages Gray 1 comment s Ben Nelson came out today against a public health insurance option Micheline 20 comment s US News financiers more solidly in charge now than they were during Dubya amberglow 10 comment s Linda Sanchez for SCOTUS odnarbssag
4. ib 7 comment s Crooks amp Liars Amato to challenge Harman amberglow 5 comment s Obama Street Cars and Livable Communities Mark Matson 2 comment s Tasers End pre trial electrocution Xcroc 2 comment s NYC MTA nears its Doomsday Subway could see PM Shutdowns villagernyc 2 comment s U S to Drop Spy Case Against Al PAC Lobbyists protects Rice Hadley etc amberglow 6 comment s Rep Tom Perriello is Setting the Pace lowkell 0 comment s Former UBS Chairman Charged with Conspiring to Defraud US Declared a Fugitive Fired by Bank counterspin 0 comment s view all recent OPEN LEFT CAMPAIGNS Put the leash back on Bush Dogs a Join the Campaign 5 2 2009 6 17 PM Open Left A Detailed Journey Through the Bybee Memo Part 1 2 of 4 The last one is similar to the first by trying to make a false distinction between physical pain and the discomfort associated with denial of a basic survival need On p3 we learn CIA has told Bybee they would deprive Zubaydah of sleep for not more than 11 days Has Bybee gone 11 days without sleep certainly haven t have voluntarily gone more than 48 hours without it a few times when I was in the military and it is pretty awful Some people respond better than others and might not flinch at even 72 hours but how about after almost 3 times that don t think Bybee has any basis to make this claim and if thought was going to have to go 4 day
5. ion of a protracted period of time generally given to suffering p11 The banality of evil Controlled acute episode could describe any number of horrendous practices Hell someone tell Digby tasing is ok it s simply a controlled acute episode At the top what he does is to pretend that his reasoning which makes pain and suffering legally inseparable is so self evident that to describe the alternate one must be engaging in a kind of legal sophistry by finely parsing the statute in a ridiculous manner Then of course we have the novel idea that suffering requires some defined time period Torture isn t torture if delivered in short enough doses apparently Ok rather long enough for one go will deal with the latter two categories of impeachable lawyering by Bybee in another instalment THE NEW YORK TIMES BESTSELLER THE LIMITS OF POWER The End of American LIMITS Exceptionalism s THE el WER 2 ANDREW J BACEVICH i oFE i hi i te oe J Now Available in Paperback Holt Paperbacks For advertising information please contact v info csmads com 22a 2a Tags jay bybee torture waterboarding OLC DOJ impeachment All Tags Print Friendly View Send As Email l A Detailed Journey Through the Bybee Memo Part 1 7 comments This Is Great 4 00 2 My next diary will be about the growing grassroots movement to get Bybee impeached which is off to great start with a unanimous resoluti
6. land Massachusetts Michigan Minnesota Missouri Missouri Montana Nebraska Nebraska Nevada New Hampshire New Jersey New Mexico New York New York North Carolina North Dakota Ohio Ohio Oklahoma Oregon Pennsylvania Pennsylvania Rhode Island South Carolina Tennessee Texas Texas Utah Vermont Virginia Washington West Virginia Wisconsin http w ww openleft com show Diary do jsessionid 18BF6D1E4AEBD1 More Recent Better Demcrats 2010 BlogPac Buy America Legislation Project Living Liberally Net Neutrality The Progressive Revolution Less Recent Better Demcrats 2008 Blue Majority Bush Dogs Donna Edwards for Congress Get FISA Right House Forecast 2008 Nomination At A Glance No Residual Forces in Iraq Personal Paid Media Presidential Forecast 2008 Responsible Plan to End the War Searching for John McCain Senate Forecast 2008 Use It Or Lose It 2008 5 2 2009 6 17 PM Open Left A Detailed Journey Through the Bybee Memo Part 1 http w ww openleft com show Diary do jsessionid 18BF6D1E4AEBD1 He knows this because he follows with The waterboard which inflicts no pain or actual harm whatsoever does not in our view inflict severe pain or suffering Even if one were to parse the statute more finely to attempt to treat Suffering as a distinct concept the waterboard could not be said to imflict severe suffering The waterboard is simply a controlled acute episode lacking the connotat
7. on passed by the LA County Democratic Club and set to go before the state convention next weekend So I can just skip over talking about the memo itself thanks to this discussion Read up people Senate passes expanded GI bill despite Bush McCain opposition by Paul Rosenberg Sun Apr 19 2009 at 16 47 55 PM CDT I guess we owe the Japanese 4 00 3 prison camp operators an apology When they imposed controlled acute episodes on American prisoners we hanged them for it If you liked Bush you ll love McCain by Sadie Baker Sun Apr 19 2009 at 17 04 53 PM CDT And Now We Know Why 4 00 2 We didn t want them suing us for patent infringement Senate passes expanded GI bill despite Bush McCain opposition by Paul Rosenberg Sun Apr 19 2009 at 17 50 50 PM CDT Parent wonder what their reaction is 4 00 2 Knowing that we ve reverse engineered their ideas without even crediting them for all their hard work So they reverse engineered our manufacturing processes and we reverse engineered their torture techniques I m gonna go crank up the old Be Bop Deluxe tune Fair Exchange 3 of 4 5 2 2009 6 17 PM Open Left A Detailed Journey Through the Bybee Memo Part 1 A of 4 Frank Zappa Government is the Entertainment Division of the Military Industrial Complex by Emocrat Sun Apr 19 2009 at 18 04 45 PM CDT Parent Only a lost war is a crime 0 00 0 The words of Rabinahod Pal a di
8. s without sleep involuntarily for some reason would be dreading the prospect Like the facial hold and the attention grasp the use of the slap is not accompanied by a specific verbal threat of further escalating violence Additionally you have informed us that in one use this technique will typically involve at most two slaps Certainly the use of the slap may dislodge any expectation that Zubaydah had that he would not be touched in a physically aggressive manner Nonetheless this alteration in his expectations could hardly be construed by a reasonable person in his situation to be tantamount to a threat of severe physical pain or suffering p12 This is from the psychological harm assessment section That section is littered with variations on the assertion that no reasonable person could possibly infer a threat to their life or of severe pain from the techniques Note the weasel wording that says the Slap is not accompanied by a specific threat of further violence So in Bybee s opinion the CIA can slap the subject and say you re going to get much worse if you don t cooperate and from this he claims that no reasonable person could infer worse was coming If that weren t enough Bybee weakens this claim by the admission that the point of slapping Zubaydah is to alter his expectation that he won t be dealt with in a physically aggressive manner They were obviously trying to scare him and make him think worse is coming That
9. se examples cover the sense of what he s doing here He just states things like this as fact Is waterboarding not painful Of course he s relying on a very limited definition of pain that is the literal physical sensation of say having an arm ripped off or getting punched Not being able to breathe is not merely uncomfortable though it does hurt and so does having liquid in your lungs When you try and hold your breath under water the discomfort of needing to breathe will easily drive most anyone back to the surface long before you either pass out or your physiological reaction forces you to inhale water If that s not difficult to endure what is Humans literally cannot endure it Dumbing down stress positions and wall sitting to muscle fatigue which falls also under legal sophistry above is how he attempts the second one But focusing on his difficult to endure line is where he fails the assertion test Anyone can go lean against a wall with their back straight and legs bent If you re reasonably fit you might be able to maintain this for a few minutes Then you will either get off the wall or collapse from the muscle fatigue becoming simply too difficult to endure This is all without the element of compulsion in being forced to do this probably hooded with various threats being made How painful does it really get under such circumstances don t know but neither can Bybee and that s why this sort of bland claim is so dan
10. ssenting justice at the Tokyo prosecutions of Japanese wartime leaders More true now than ever by John Halle Sun Apr 19 2009 at 21 44 14 PM CDT Parent Well done Daniel 4 00 3 Nice work My bias is that had a lot of the same reactions although must confess also a deep sense of dread while reading 1 and 2 haven t gotten to the other ones yet You laid this one out very nicely Frank Zappa Government is the Entertainment Division of the Military ndustrial Complex by Emocrat Sun Apr 19 2009 at 18 00 56 PM CDT I just found this 4 00 1 http www democrats com no am It s a No Amnesty for Torturers petition put up by Democrats com If you liked Bush you ll love McCain by Sadie Baker Sun Apr 19 2009 at 18 36 22 PM CDT A Detailed Journey Through the Bybee Memo Part 1 7 comments Home RSS XML Feed Register Contact OpenLeft 2007 2008 Powered by SoapBlox i il site meter http w ww openleft com show Diary do jsessionid 18BF6D1E4AEBD1 5 2 2009 6 17 PM
11. techniques separately or in combination could cause enough psychological harm as to constitute torture under section 2340 the portion of the US code which implements the Convention Against Torture in domestic US law The flaws fall roughly into these categories egregious flawed assertions that would be laughable if not about a subject so terrible legal sophistry and warping of commonly understood word definitions flawed thesis 1 that the use of these techniques within military training or on other volunteers proves they are not torture flawed thesis 2 a fixation on the mens rea aspect of this crime arguing essentially that merely by asking to ensure the techniques aren t torture CIA proves it doesn t mean to torture and therefore is not torturing under the legal definition since they didn t mean it wrote about that here Flawed Assertions Thus although the subject may experience the fear or panic associated with the feeling of drowning the waterboard does not inflict physical pain p11 Any pain associated with muscle fatigue is not of the intensity sufficient to amount to severe physical pain or suffering under the statute nor despite its discomfort can it be said to be difficult to endure p10 As for sleep deprivation it is clear that depriving someone of sleep does not involve severe physical pain within the meaning of the statute p10 There are many more like that but think the
12. wning Even if you re Christopher Hitchens and you know you can stop the treatment with a hand gesture or a Navy SEAL who knows they won t literally drown you to death you are at that instant technically suffocating which is really all drowning is There is no reason given either to assume as Bybee does that the subject will be well aware that the CIA won t actually kill him As we explained in the Section 2340A Memorandum pain and suffering as used in Section 2340 is best understood as a single concept not distinct concepts of pain as distinguished from suffering p11 Here he s relying on a previous pile of nonsense on the premise that by citing his own previous bad work he can build an edifice of claptrap where it all somehow makes sense haven t read that particular memo but the conclusion that pain and suffering should be amalgamated together for the purpose of legal analysis defies common sense and comes off quite specious User Diaries OpenLeft in your inbox Email Address Submit Or subscribe to each author individually LIBERAL INSTITUTIONS ActBlue American Wind Energy Association Americablog Atrios Avaaz Blue State Digital Boingboing CBC Monitor Campaign for America s Future Center for Independent Media STATE BLOGS Alabama Alaska Arizona California Colorado Connecticut Delaware Florida Georgia Idaho Illinois Indiana lowa Kansas Kentucky Louisiana Maine Mary
Download Pdf Manuals
Related Search