How did they miss this?
May. 2nd, 2009 02:43 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumRemember those torture memos.... the ones which said waterboarding wasn't torture?
The ones which the "brilliant" legal minds of Jay Bybee, John Yoo, and Steven Bradbury, wrote?
Seems those brilliant legal minds missed some precedent. Not the war crimes trials of WW2, but a bunch of stuff in the US, some of it going back to the turn of the 20th Century.
Then again, the folks who wrote those memos seem to have a strange idea of "research", "You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.
Got that. The client told the lawyer something and that declaration is the becomes the answer. It's begging the question.
Most of the memos were tortured bits of reasoning, meant to circumvent the Convention Against Torture, and the War Crimes Act of 1998, which Bybee said, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it...
Which seems to be true, in the finest of legalistic meanings of true.
It's not that waterboarding had no cases showing that the law sees it as torture, it's that no cases were brought under that specific law, but people... law enforcement people, have been sent to prison for waterboarding people, as recently as 1983.
A San Jacinto County Sheriff, Joe Parker set up a "marijuana trap", and subjected prisoners to "the water treatment."
“A towel was draped over his head,” Magee said, according to court documents. “He was pulled back in the chair and water was poured over the towel.”
There is, as you may expect, more.
One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act but he was unaware that it was illegal. His attorneys cited the “Nuremberg defense,” that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.
Sound familiar? "We can't prosecute these people because they did it on the understanding it was legal." Which is exactly what Baker said... he thought it was immoral, but didn't know it was illegal.
The sheriff got ten years, the deputies got four.
So Bybee, Yoo, and Bradbury, decided to ignore this, and to craft a sentence which made it possible to argue (one might go so far as to say pretend), that waterboarding wasn't considered a crime in the US. They could have cited Teddy Roosevelt, who was protesting a court-martial of an officer who used, "the water cure" in the Phillipines. In a private letter he wrote, "The enlisted men began to use the old Filipino method: the water cure. Nobody was seriously damaged."
But, of course to do that they'd have to point out the court-martial saying, the officer (who was suspended, and fined, but not cashiered) had "resort[ed] to torture with a view to extort a confession." Adding that "the United States cannot afford to sanction the addition of torture."
As well it might come out that Teddy went on to order a general court martialed for abuses in the Phillipines, and when the court gave him a pass (citing him only for acting with excessive zeal), Teddy used "The Big Stick" and dismissed him.
None of that, of course, mattered. They had a charge to fill (giving the Bush administration legalistic cover for what they wanted to do), and like any good shyster they told the client what he wanted to hear, not what the law was most likely to decide.
The only way to rationalise it is to think they really believed Yoo's cockamamie theory of the "unitary executive" who has no restrictions if he declares a war (which is his right.... Congress merely has the privilege of formalising it).
Which I don't believe they do, because they went to all the work to write those memos... again, and again, and again.
The guilty flee, when no man pursueth. Let us then give them reason for their flight.
The ones which the "brilliant" legal minds of Jay Bybee, John Yoo, and Steven Bradbury, wrote?
Seems those brilliant legal minds missed some precedent. Not the war crimes trials of WW2, but a bunch of stuff in the US, some of it going back to the turn of the 20th Century.
Then again, the folks who wrote those memos seem to have a strange idea of "research", "You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.
Got that. The client told the lawyer something and that declaration is the becomes the answer. It's begging the question.
Most of the memos were tortured bits of reasoning, meant to circumvent the Convention Against Torture, and the War Crimes Act of 1998, which Bybee said, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it...
Which seems to be true, in the finest of legalistic meanings of true.
It's not that waterboarding had no cases showing that the law sees it as torture, it's that no cases were brought under that specific law, but people... law enforcement people, have been sent to prison for waterboarding people, as recently as 1983.
A San Jacinto County Sheriff, Joe Parker set up a "marijuana trap", and subjected prisoners to "the water treatment."
“A towel was draped over his head,” Magee said, according to court documents. “He was pulled back in the chair and water was poured over the towel.”
There is, as you may expect, more.
One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act but he was unaware that it was illegal. His attorneys cited the “Nuremberg defense,” that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.
Sound familiar? "We can't prosecute these people because they did it on the understanding it was legal." Which is exactly what Baker said... he thought it was immoral, but didn't know it was illegal.
The sheriff got ten years, the deputies got four.
So Bybee, Yoo, and Bradbury, decided to ignore this, and to craft a sentence which made it possible to argue (one might go so far as to say pretend), that waterboarding wasn't considered a crime in the US. They could have cited Teddy Roosevelt, who was protesting a court-martial of an officer who used, "the water cure" in the Phillipines. In a private letter he wrote, "The enlisted men began to use the old Filipino method: the water cure. Nobody was seriously damaged."
But, of course to do that they'd have to point out the court-martial saying, the officer (who was suspended, and fined, but not cashiered) had "resort[ed] to torture with a view to extort a confession." Adding that "the United States cannot afford to sanction the addition of torture."
As well it might come out that Teddy went on to order a general court martialed for abuses in the Phillipines, and when the court gave him a pass (citing him only for acting with excessive zeal), Teddy used "The Big Stick" and dismissed him.
None of that, of course, mattered. They had a charge to fill (giving the Bush administration legalistic cover for what they wanted to do), and like any good shyster they told the client what he wanted to hear, not what the law was most likely to decide.
The only way to rationalise it is to think they really believed Yoo's cockamamie theory of the "unitary executive" who has no restrictions if he declares a war (which is his right.... Congress merely has the privilege of formalising it).
Which I don't believe they do, because they went to all the work to write those memos... again, and again, and again.
The guilty flee, when no man pursueth. Let us then give them reason for their flight.
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no subject
Date: 2009-05-03 04:43 am (UTC)