Monday, May 18, 2009

Luban Testifies

David Luban testifies on torture to the Senate Judiciary Committee. A snippet:
The first Bybee memo also wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists “severe pain” as a symptom that might indicate a medical emergency. Mr. Yoo flips the statute and announces that only pain equivalent in intensity to “organ failure, impairment of bodily function, or even death” can be “severe.” This definition was so bizarre that the OLC itself disowned it a few months after it became public. It is unusual for one OLC opinion to disown an earlier one, and it shows just how far out of the mainstream Professor Yoo and Judge Bybee had wandered. The memo’s authors were obviously looking for a standard of torture so high that none of the enhanced interrogation techniques would count. But legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted. I should note that on January 15 of this year, Mr. Bradbury found it necessary to withdraw six additional OLC opinions by Professor Yoo or Judge Bybee...

This morning I have called the torture memos a legal train wreck. I believe it’s impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law.

3 comments:

MT said...

Luban's idea of a lawyer's duty is wonderful to contemplate, but I doubt it's true to what our system actually relies on lawyers to do. Anyway, it may turn out to be authoritative in this case and let's hope so.

MT said...

Here's a legal question: Can I authorize my own torture? Reality TV shows supposedly ask participants to sign releases. Even if a lawyer's candid professional opinion is that a contract probably is not enforceable in the jurisdiction for which he or she has been asked to write one, seemingly it's his or her job to write it. An ACLU lawyer might craft such a contract--for a same-sex marriage, say--so that it very specifically violates the law and gets annulled in court. Otherwise, there would be no ruling on the matter to appeal and have judged against the Constitution. Yoo's opinion of the Constitution seems to be that it authorizes the president in defense of the nation during war to take exceptional measures without approval by Congress beforehand. His client wanted something else. Is it really so clear what the job of the OLC is in a case like this? Says who?

helmut said...

Good question. We have serious reservations about euthanasia or assisted suicide, for example. Some consider it murder on the part of the enablers. Some a betrayal of the Hippocratic Oath. And some think of it as a final act of autonomy. The law reflects this ambiguity.