Not Reading What You Defend

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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6 Responses

  1. Will says:

    Wow, Mark – just got around to reading this and your legal analysis seems pretty devastating. One question: What does “predicate act” mean in the context of the memos?Report

  2. ChrisWWW says:

    Andy McCarthy = pwned

    One “extra-legal” theory I had was that the act of waterboarding is in itself a non-verbal threat of death by drowning. The US law against torture makes even the threat of “severe pain and suffering” illegal.Report

  3. Will: A “predicate act” means an act that can form the basis for a finding of “severe mental pain or suffering” within the meaning of the statute. Essentially the statute defines “severe mental pain or suffering” as being “prolonged mental harm caused by or resulting from…” a predicate act.

    Something that is not a “predicate act” is by definition not torture within the meaning of the statute no matter how prolonged the mental harm it causes. Something that is a “predicate act” is by definition torture as long as it causes “prolonged mental harm” (and is specifically intended to do so). What the Bybee memo says – with very little legal reasoning – is that waterboarding and the entire program are not likely to cause “prolonged mental harm,” and that is why they aren’t torture.Report

  4. ChrisWWW – Thank you. Your theory is correct, and in fact is not even debatably wrong. The Bybee memo explicitly acknowledges this with the language I quote above in its finding that waterboarding and potentially the entire program would constitute “predicate acts.” The sole reason the Bybee memo concludes these acts are nonetheless “not torture” is the focus on the additional requirement in the statute that a predicate act be intended to cause prolonged mental harm. What is so enfuriating about McCarthy’s claims is that they don’t even acknowledge that waterboarding and/or the entire program constitute the predicate act, which means he either didn’t read the memos or didn’t read the statute or has no bleepin’ idea what he’s talking about.Report

  5. Murali says:

    I think that you may have been just a bit unfair to Ross. He was saying 2 things.
    1. Prosecuting the previous administration for war crimes could be politically disastrous

    2. The nation should arrive at a consensus as to what is or is not acceptable behaviour. (What constitutes torture etc.) in some public way that settles it for everybody. (Conservatives seem to like this for a some strange reason) At least he wants to make the point that the country (as a collective, if that makes any sense) should learn that torture is bad.

    So, I’m not sure that he is saying that americans should move on. I think that the country should at least agree on what is right or wrong before prosecuting Bush and Cheney.Report