Friday, February 11, 2005

Torture memos reveal tortured Logic

Slate today is running an awesome article by Peter Brooks, UVA English and Law Professor ripping the reasoning of the Bybee Torture Memos to shred. The conclusions of the memos were abhorrent enough; but professor Brooks careful analysis of the memos shows that the arguments used to arrive at that conclusion were as intellectually dishonest as they were morally bankrupt. or as he says:
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The memo , offers the OLC's interpretation of "standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code." It offers a remarkable example of textual interpretation run amok--less "lawyering as usual" than the work of some bizarre literary deconstructionist. And it's virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.
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Diaries :: Magorn's diary ::

Brooks brilliantly highlights verbal and legal machinations that make Clinton's infamous parsing of the word is look like a model of candor by comparison:

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Bybee's analysis starts from an apparent commitment to the "plain meaning" rule. "The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause 'severe physical or mental pain or suffering.' ...But, says Bybee, the statute doesn't define "severe." Absent such a definition, he continues, "we construe a statutory term in accordance with its ordinary or natural meaning." To find that ordinary and natural meaning, he turns to Webster's But this definition, however ordinary and natural, doesn't quite meet his purposes....

So Bybee searches for other possible uses of the phrase "severe pain" in the U.S. Code, and discovers, as he puts it: "Significantly, the phrase 'severe pain' appears in statutes defining an emergency medical condition." "Significantly" is Bybee's transition word here--and one might ask whether the use of "severe pain" in the context of medical emergency is in fact more "significant" than any number of other uses of severe, in statutes and in ordinary usage. But this slide into medical usage allows Bybee to come up with his interpretation of choice: that the "severe pain" that defines torture must involve damage that rises "to the level of death, organ failure, or the permanent impairment of a significant body function." He's by now got us well out of common English usage and into the emergency room.

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Bybee then uses the same mental gymnastics to gut the prohibition against using drugs on interrogation victims?:
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{Prof Brooks}:
The truly "deconstructive" cast of Bybee's interpretation of the torture statute comes in the next section, which takes up "Harm caused by or resulting from predicate acts." These acts include, "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." Since these "substances" are not further defined, Bybee sets out to make some distinctions.
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Warning: this following paragraph is so twisted, it is actually sprained, and may cause dizziness nausea or vomiting on the very sensitive and or logical
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{Bybee writing in the Torture memo}":
"This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340 (2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's....

Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense."
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Now lets let Brooks (an English and legal writing prof) grade this part of the memo:
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To use the "or" of "or other procedures"--which are of course supposed to be of the same sort--to argue that "disrupt profoundly" somehow controls and limits the meaning of "mind-altering" seems to me far from commonsensical, a parsing of vocabulary and syntax that appears arbitrary and even a bit demonic.

...the way Bybee claims to find the meaning derives from an ungoverned and unscrupulous reading that uses--very selectively--dictionary definitions to produce arcane and obfuscating interpretations. It's like a parody of a deconstructive reading written by a hostile critic.
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There's more, but this is enough and more than enough. The mere fact that Bybee needs to cite to a dictionary (as opposed to a statute or case law or even a LEGAL Dictionary or encyclopedia) is proof that he knows he's off the reservation. It is even more pathetic that he has to go dictionary-shopping (from a 1995 to a 1978 to a 1938 Webster's) because even that won't back him up.

Having recently graduated from law School myself I guarantee you if I'd turned in something so poorly reasoned and badly sourced in my first legal writing class, I very likely would be in a different line of work now. But in what passes for an Administration, this crap is now being used to set US policy and tarnish one of the few things we used to be able to be proud of our country for, it leadership on human rights
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