Certainty About the Law
First, let me say that I respect Sonny Bunch. A lot. I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees.
That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so. Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”*
The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture. The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture. So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture.
In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture.
*I’m going to give our resident dissenter, Mr. Nuevo, a pass on this since he’s been pretty candid that he’s not sure about the legal aspects of waterboarding.
UPDATE: Cross-posted at Donklephant.