Wednesday, June 18, 2008

The need for "bright lines" in law

So-called "bright lines" in law are useful to the aspiring 1-Ls; they let you state the issue, put down the rule, and show how the issue should be resolved. No muss, no fuss. Hell, enough bright lines, and even a moderately sophisticated artificial intelligence program might make a good law clerk or associate attorney.

So today we have this, as reported in the New York Times:
[T]he top lawyer for the C.I.A.’s Counterterrorist Center to Guantánamo, [...] explained that the definition of illegal torture was “written vaguely.”

“It is basically subject to perception,” said the lawyer, Jonathan M. Fredman, according to meeting minutes released Tuesday at a Senate hearing. “If the detainee dies, you’re doing it wrong.”
Well thank goodness for "bright lines". Now we know what to expect and what lines not to cross.

Furthering the education being provided for free to 1-Ls thanks to the maladministration's efforts at Guantánamo and elsewhere, then we have the concept of "mens rea"; the "guilty mind":
At the meeting, lawyers talked openly about the “need to curb the harsher operations” during visits from observers with the International Committee of the Red Cross and about moving some prisoners to keep them out of sight at those times.

And Mr. Fredman, the C.I.A. lawyer, warned his military counterparts never to videotape aggressive interrogations because they will “look ugly.” His comment came more than five years before the Justice Department opened a criminal investigation into the destruction of C.I.A. interrogation videotapes.

When the issue of "knowingly" comes up in any war crimes trials, this could be relevant.

Then there's this:

The 2002 meeting at Guantánamo showed how C.I.A. lawyers believed they had found a legal loophole permitting the agency to use “cruel, inhuman or degrading” methods overseas as long as they did not amount to torture.

In “rare instances, aggressive techniques have proven very helpful,” Mr. Fredman said, according to the minutes.

A military lawyer at Guantánamo, Lt. Col. Diane Beaver, interjected, “We will need documentation to protect us.”

“Yes,” Mr. Fredman said, “if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental.”
Cruel, inhuman, or degrading treatment (CIDT) is also banned by law and treaty. Where's the line between CIDT and torture? Well, we have the "bright line" above. If the guy kicks off (see also here and here; pictures here), then it's torture, I guess....

But I'm curious about one thing: Did Fredman get it wrong? Where's the "severely detrimental" backlash? Why aren't the good people of the country demanding war crimes trials for everyone involved, and impeaching the guy that says he signed off on this crap?!?!? Maybe because this article ran on page 3 (in my local newspaper) below the fold, and the so-called "liberal media" is ignoring it.....


Update

Ben Davis, over in a comment at Balkinization, points to this article from the Washington Post on physical evidence for the torture:

One former Iraqi prisoner, identified in the report only as Yasser, said he was subjected to electric shocks three times and sodomized with a stick. His thumbs bore round scars consistent with shocking, the report said. He would not allow a full rectal exam.

Another Iraqi, identified only as Rahman, reported he was humiliated by being forced to wear women's underwear, stripped naked and paraded in front of female guards, and was shown pictures of other naked detainees. The psychological exam found that Rahman suffered from post-traumatic stress disorder and has enduring sexual problems related to his humiliation, the report said.

The abuse of some prisoners by their American captors is well documented by the government's own reports. Once-secret documents show that the Pentagon and Justice Department allowed, at least for a time, forced nakedness, isolation, sleep deprivation and humiliation both at the detention center at Guantanamo Bay and Abu Ghraib prison.

Because the medical examiners did not have access to the 11 patients' medical histories prior to their imprisonment, it was not possible to know whether any of the prisoners' ailments, disabilities and scars pre-dated their confinement. The U.S. military says an al-Qaida training manual instructs members, if captured, to assert they were tortured during interrogation.

However, doctors and mental health professionals stated they could link the prisoners' claims of abuse while in U.S. detention to injuries documented by X-rays, medical exams and psychological tests.

"The level of the time, thoroughness and rigor of the exams left me personally without question about the credibility of the individuals," said Dr. Allen Keller, one of the doctors who conducted the exams, in an interview with the AP. "The findings on the physical and psychological exams were consistent with what they reported."

Update 2

Scott Horton weighs in with a fine article. Included is an accounting of what has happened in the cases where detainee did die:
... Fredman’s concerns [about public reaction to detainee deaths] were clearly addressed by the Bush Administration, because many people did die in detention, in conditions connected to the application of torture techniques (there are at least a dozen such cases already documented), and in none of these cases has a responsible person been punished. Did the Bush Administration ultimately decide that homicide was not a problem, either? Or perhaps it was concern about the information that would come to the surface if a prosecution were to be undertaken.
My emphasis. If such a statement needs such....

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