This is a follow-up to my previous posting on the distortions of legal principles in the section on "specific intent" in the Bybee memo on the meaning of "torture." 

A lawyer with considerable experience in criminal law has written the following (which I am quoting here with his permission):

Not only do I think [Ecclesiastes] is right, there are a couple of other ways in which Bybee and Yoo (in all likelihood intentionally) mix apples and oranges. Every experienced lawyer knows the look and feel of another experienced lawyer attempting to provide plausible defense for something indefensible. That look and feel is all over this document.

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Some quick research turned up the following two cases from U.S. courts:

In re Estate of Marcos Human Rights Litigation, 910 F.Supp. 1460 (Hawaii, 1995), was a civil action by victims of President Fernando Marcos of the Phillipines, and the court found that the plaintiffs had experienced "human rights violations" including, but not limited to, "5. The 'water cure', where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation...." The court referred to the listed practices as "forms of torture" that were used in "tactical interrogation," which the court described as a "euphemism for torture, disappearance or summary execution." 910 F.Supp at 1463.

In Cavazos v. State, 160 S.W.2d 260, 261 (Tex. Crim., 1942), it was undisputed that the defendant "was carried from one jail to another by the officers; that he was made to stand for hours on tin cans with his feet bare and with his arms extended above his head; that he was slapped and kicked; that he was given electrical shocks with an iron rod charged with electricity; that he was given what is termed 'water cure' until he was willing to confess and did confess to the commission of the offense in order to escape such further treatment." The court concluded that the confession was obtained "by force and physical and mental torture" and was inadmissible.

Now, the use of the word "torture" in those two decisions is what lawyers sometimes call "dicta," because the federal statute that prohibits torture outside of the United States (18 USC 2340A) wasn't before the courts, and the issues that were before the courts didn't really require a determination of whether the "water cure" was "torture."  So the opinions aren't really "on point" and the language in the opinions has to be taken with a grain of salt.

But the fact that both a federal judge in 1995 considered the pouring of water over a prisoner's face to be a form of torture, and a Texas appeals court in 1942 felt the same way, should mean something.  That the Department of Justice never even looked for these kinds of cases speaks volumes about the "thoroughness" of their research and their desire to reach the result they wanted to reach without having to consider any pesky contrary opinions.

One of the major criticisms of the Bush Administration was that the Department of Justice had been "politicized" and that the White House had exerted too much influence over who should be prosecuted.

As a result, I'm now starting to get unnerved by the questions being addressed to President Obama about who is or is not going to be prosecuted for torture.

I think that the White House is starting to wake up to the fact that it would be better for Obama not to be directly involved in those decisions, both as a matter of politics and as a matter of policy.  The better process will be to:

1.  Let the Justice Department investigate what they believe needs to be investigated, and let the Justice Department prosecute what they believe needs to be prosecuted.

2.  If Congress is not satisfied with the prosecutions (or lack thereof), Congress can hold hearings and investigate.

3.  If the President is not satisfied with a particular prosecution, the President can issue a pardon for that particular person.

Fortunately, all that the President has done so far is talk, and he has not yet issued any pardons or any amnesty.  Let's hope it stays just talk until we see what AG Holder intends to do.

Okay, this one is complicated, so you're going to have to bear with me, but I've seen something in one of the torture memos that parallels a well-known tax evasion scam, sometimes called a "reliance defense package."  The idea is that, in order for the government to convict you of tax evasion, they need to prove that you knew that what you were doing was illegal, but if you have an opinion from a lawyer that the federal income tax does not apply to wages, then you had a good faith, reasonable basis, to believe that you were not required to pay taxes, and you can't be convicted.

Here's the weird part:  The Supreme Court decision that established that a good faith belief is a defense to charges of income tax evasion was cited in one of the torture memos.

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The release of more memos justifying the torture of prisoners by American officials provides more reasons for us to be shocked, outraged, and ashamed of our government, but there are other reasons for us to fear for our future as a society.

1.  We are one of the few (if not the only) modern industrialized nation that continues to execute people.  Until two recent Supreme Court decisions, we were among the only countries in the world to execute minors and people convicted of crimes other than murder (i.e., rape).

2.  We have a greater percentage of our population in prison than any other country, and we have more of our prisoners in long-term solitary confinement than any other country.  (Prisoners of war such as John McCain report that solitary confinement can be worse than beatings, and medical studies have shown that long-term solitary confinement can do long-term emotional and neurological damage to prisoners.)

3.  We have more guns, and more gun violence, than any other industrialized nation.

4.  We tolerate (and even express pride in) a system that denies routine medical and dental care to those unable to pay, leading to horrors like preventable amputations among diabetes sufferers and people pulling out their own rotting teeth with pliers.

5.  At Guantanamo Bay, we imprisoned hundreds of people for years without ever charging them with any crime or allowing them to communicate with lawyers or their families.

So the official sanctioning of torture was not a shocking violation of our principles, but just another expression of our violent and brutal natures.

Which also explains the lack of public outrage over both the admissions of torture and the lack of any prosecutions or consequences for the people who ordered the torture as well as those that carried it out.

Somewhat coincidentally, Newsweek magazine's 4/13/2009 cover story was "The End of Christian America."  If what we have I have described above is what could be called a "Christian America," then the sooner it ends, the better.