Senate Judiciary Hearing on Torture, Two
Whitehouse: SASC report. Great deal of disagreement with OLC analysis. Mora called 2003 OLC memo profoundly in error. To extent that it relied on memo, did not include fair analysis. Chart based on OLC opinion. Green means go column. Read Admiral Dalton, that green column was wrong legally, embarrassing. At Haynes’ direction, directed that OLC opinion supplant opinions of working group. Zelikow, you heard that copies of your memo should be collected and destroyed. What does that say?
Zelikow: Lawyers did not welcome peer review. Would shut down challenges even inside the govt.
Whitehouse: It’s our nature to quarrel with each other. Is there any suggestion you would draw that they were less than perfectly confident with their views?
Zelikow: Arguments I was making were pretty profound, their whole interpretation of CID standard raises grave consequences. They had options. Let’s take another look at this. Or, Zelikow, boy, this shows how rusty you are in practicing law. They didn’t do either of those things, C, we don’t want to talk about it.
Whitehouse: Luban. Lee decision. Texas decision. Addicott didn’t cite it. Lee describes waterboarding as torture. In 93 pages, where they dig out medicare reimbursement, they don’t find a case on point, in which the 5th circuit, calls it repeatedly torture. I’ve pressed the DOJ on this, bc I think it’s unimaginable. AG Mukasey’s response was that it wasn’t relevant under Civil Rights Act, doesn’t relate under CAT. At that time I was out of time. Civil RIghts Act has no substantive elements of its own. Vehicle for enforcing Constitutional violations. Leads directly to Constitutional standards on torture. What OLC said about it–definition also founded on Constitutional standards of US. Impossible by Congress by statute, the statute criminalizing torture cannot create a definition of torture that narrows Constitutional definition. Distinction is yet another false device. They either missed case on point. I guess we’ll find out from OPR which it was.
Luban: Lee case decided in 1983, before CAT and torture statutes. Not surprising that it didn’t exist yet.
Graham: Would it be torture to put a spider inside a jail cell who was afraid of spiders.
Luban: Conceivably.
Graham: Would you say if we put a spider in the jail cell we were torturing them.
Luban: If we knew that spiders are deadly. An ordinary person.
Graham: Mr. Addicott has a different view about torture. Do you think he is unethical.
Luban: I think he would be unethical if Read more →