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.