David Luban's Testimony on the "Torture Memos"

Professor David Luban testified yesterday before the House Judiciary Committee.  You can find his testimony here.

Comments

[rbnn]

Mr. Luban's testimony misrepresents Yoo's statutory interpretation of 18 USC 2340 by misquoting Yoo's definition of "severe pain."

Luban states that Yoo argued "inflicting physical pain isn't illegal unless the pain reaches the level of organ failure or death." Luban testimony at 2. This is not, in fact, what Professor Yoo argued. Professor Yoo's analysis considered several statutes proscribing torture, notably 18 USC section 2340. That statute prohibits infliction under color of law of "severe . . . pain." Yoo analogizes with a number of health care statutes to conclude that these statutes "suggest" that "severe pain" must rise to a level "ordinarily associated ... with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment." Memo, pp. 38-39. Luban makes it sound like Yoo was saying that there actually had to be some organ failure involved, which was not the case.

Yoo also makes clear from the case law of the Torture Victims Protection Act that acts like burning with cigarettes; electric shocks or threat of electric shocks, and mock executions would be torture under section 2340, and so would be prohibited by that Act. See memo at 47. These are not instanes of the pain of "organ failure or death" as Mr. Luban argues.

In 18 USC 2340, Congress proscribed the infliction of severe pain. The definition of severe pain was unspecified, but is obviously more than mild pain and more than moderate pain. In the face of a lack of Congressional guidance, Yoo did the only thing he could: he looked at dictionary definitions, at the case law, at legislative history and at related statutes, including health care statutes and the Torture Victims Protection Act. As Yoo pointed out, the case law was sparse, but the legislative intention that section 2340 was intended to proscribe infliction of severe pain seemed clear. Yoo also clearly stated that "we cannot say with certainty that acts falling short of these seven [acts found to be torture in the TVPA case law] would not constitute torture under Section 2340." Memo at 47.

Thus, Yoo's analysis is entirely mischaracterized by Luban. Yoo made clear that acts need not cause "organ failure or death" to be torture, he accurately summarized the case law, he explained that the case law had not addressed certain kinds of behavior and so the precise precedents were not known, and he clarified that acts like electric shocks and burning were forbidden (I emphasize this last because for some reason Yoo gets blamed by protesters for people using electric shocks, when he explicitly says in the memo that this is illegal).

[rbnn]

Also, sorry for the typos - I find it tough to proofread in these little boxes, and there doesn't seem to be a way to edit. I hope my sense is clear.

[smaug]

Luban -- and many other critics -- also mis-state Yoo's argument about the commander-in-chief clause. Yoo does not claim that the "Commander in Chief can override any law in the statute book;" he only claims that in the conduct of a war, Congress cannot interfere with proper C-i-C authority under the guise of general criminal statutes. And interrogations of captured combatants are deemed to be part of the conduct of the war.

This is distinct from legislation that provides for courts-martial of US soldiers for certain violations of the law of war. Yoo does not challenge the legitimacy of the UCMJ on Common Article 3, for example. Rather it was argued that the Geneva Conventions did not apply to the al-Qaeda or Taliban combatants.