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How a Health Benefits Law Formed the Basis For the 'Torture Memo'

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Headlined to H2 5/3/09

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Saturday, 02 May 2009 08:16

John Yoo, the author of one of the infamous Aug. 1, 2002, "torture" memos that formed the legal basis for so-called "enhanced" interrogation techniques against high-level terrorist detainees, used a statute governing health benefits when he provided the White House with a legal opinion defining torture.

Yoo's legal opinion, which was signed by Jay Bybee, the former head of the Department of Justice's Office of Legal Counsel (OLC), stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

Jack Goldsmith, who succeeded Bybee at OLC, said that Yoo, a former OLC attorney who now teaches at Chapman University in Orange, Calif., arrived at that definition by relying on statute written in 2000 related to health benefits.

"That statute defined an "emergency medical condition' that warranted certain health benefits as a condition 'manifesting itself by acute symptoms of sufficient severity (including severe pain)' such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Goldsmith wrote in his book, The Terror Presidency.



"The health benefits statute's use of "'severe pain' had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define 'severe pain.' Rather it used the term 'severe pain' as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like.... OLC's clumsily definitional arbitrage didn't seem even in the ballpark."

In his book, War By Other Means, Yoo blamed Congress for forcing him to rely upon an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.

In passing an anti-torture law, Congress only prohibited "severe physical or mental pain or suffering," Yoo wrote. "The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe...OLC interpreted 'severe' as a level of pain "equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions."

"OLC's first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including '-severe pain' where an individual's health is placed 'in serious jeopardy,' '-serious impairment to bodily functions,' or 'serious dysfunction of any bodily organ or part.'"

Goldsmith claims that after reviewing various arguments and opinions in Yoo's August 2002 "torture memo," particularly "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."

Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo's "torture memo" was "legally flawed," sloppily written, and called into question whether the White House was provided with sound legal advice.

That conclusion, along with Yoo's reliance on the health benefits statute to form a legal opinion regarding torture, may be one of the sharp critcisms of an ethics report by the DOJ's Office of Professional Responsibility (OPR), an internal DOJ watchdog that probed whether the legal work Yoo, Bybee and former OLC acting chief Steven Bradbury conducted for the White House violated "professional standards."

"On an issue that demanded the greatest of care, OLC's analysis of the law of torture in the Aug. 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary," Goldsmith wrote in his book.

When he arrived at the OLC in October 2003, Goldsmith was unaware that the CIA had, for more than a year, used interrogation methods to extract information from so-called high-level detainees held at secret prisons in European countries that, before 9/11, would have most certainly been construed as violating the United Nations Convention Against Torture, a treaty signed by the U.S. but one that Congress had made unenforceable in U.S. courts.

Goldsmith, who had worked at the Pentagon's office of general counsel, may appear to be one of a handful of individuals who challenged the White House on matters of national security matters but he was still a strong supporter of many of the administration's policies.

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Jason Leopold is Deputy Managing Editor of Truthout.org and the founding editor of the online investigative news magazine The Public Record, http://www.pubrecord.org. He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
 
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