| The Act of Torture is properly defined in terms that require the offender to be intentionally inflicting pain. That is, accidentally or possibly even incidentally causing someone to suffer isn't enough. So they've cleverly twisted that logic into something that can only be expressed in an M.C. Escher diagram, but I think this is the reasoning:
1. You nice CIA boys wrote us this memo asking if what you're planning to do is torture and you sure hope it isn't.
2. If you don't mean it as torture, it's not, since you didn't mean to torture anyone, you by definition haven't.
3. Also, since you've asked and done all this fancy due diligence on the question, we think that shows you're acting in good faith and not intending to torture.
4. Now that we've told you it isn't torture, and we're experts, it's even more sure you're not committing torture since an expert told you it was OK.
5. It doesn't matter that our rationale for why what you're doing isn't torture is patently specious. See #4, we've told you it isn't, and that's enough.
The most frightening thing is that this sophistry might just stand up in court. Like any non-lawyer who might be faced with an intricate legal issue, I would hope that by taking reasonable steps to understand the law, and making an actual good faith effort to substantively comply with the law, you'd stay in the clear. That even if some aggressive prosecutor took you to task over whatever it was, that you'd be able to convince a Jury or the Judge that you meant well but got tripped up on some arcane detail. Ignorance of the law isn't an excuse, except sometimes it probably should be.
Thing is, none of this applies here. Torture isn't complicated and the torture statutes aren't either. Sure, they have a few nebulous qualifying terms like "prolonged" or "severe" that lack enough jurisprudence to crisply define them. But what OLC and the CIA were doing here was not a good faith effort to find legally defensible definitions of the adjectives in the torture statutes. There's a ton else that wrong with these memos, but I think this is the legal crux (or crutch) they're resting on: We tried to figure it out and that proves we meant well.
No, it doesn't, and I hope this does get tested in a Court and given the rebuke it deserves. This sort of legal pretzel logic can be applied to so many things (mens rea is a necessary ingredient for conviction on many crimes), and leaving this sort of loophole open guarantees a lot more trouble in future. |
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