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The Terror Presidency
the origins of legal opinions in the Bush OLC
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Jan 16, 2009 11:52AM
One paragraph of Goldsmith's book struck my attention. I hope it was not typical of the quality of legal research done by the OLC during the Bush years but I fear that it was. It follows:
On the surface the interrogation opinions seemed like typically thorough and scholarly OLC work. But not far below the surface there were problems. One was that the opinions interpreted the term torture too narrowly. Most notorious was OLC's conclusion that in order for inflicted pain to amount to torture, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." OLC culled this definition, ironically, from a statute authorizing health benefits.
Are you freaking kidding me?! What the hell were they doing looking at health law when they were looking for legal rationale to define torture so extraordinarily? Why, of course, they were absolutely desperate!! OLC's definition was ridiculous in the extreme, but to find justification for it in a health benefit statute....Goldsmith continues:
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. It is appropriate, when trying to figure out the meaning of words in a statute, to see how the same words are defined or used in similar contexts. But the health benefit statute's use of "severe pain" had no relationship whatsoever to the torture statute.
Goldsmith concludes, "It is very had to say in the abstract what the phrase "severe pain" means, but OLC's clumsy definitional arbitrage didn't seem even in the ballpark." He lets the OLC lawyers off too easily, of course, but if a law school student tried to pull this stunt the professor would be all over them, I suspect. What were OLC lawyers trying to do if not stretch the law to fit the policy, precisely the inverse of proper procedure?
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The Terror Presidency: Law and Judgment Inside the Bush Administration
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