John Yoo, the author of the infamous Aug. 1, 2002, “torture memo” 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, according to a former Justice Department official.

Yoo’s legal opinion 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, the former head of the Department of Justice’s Office of Legal Counsel, said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, 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.”

We must put it on the record so that no subsequent president of any party, even parties that may not yet exist, shall continue in this line of thinking. The unitary executive must be killed. Our very democracy depends on it. It must die a swift death before the next president is inaugarated.

They have left us no other choice but to watch our democracy disappear. We can’t let that happen.

My motto this election season! Vote Dem! It’s the supreme court, stupid!

“In the hothouse of ideology that the OLC appears to have become…”

- Sen. Sheldon Whitehouse, National Law Journal Opinion

You got to hand it to a guy who does the analysis and feels confident enough in his work to come out and state a conclusion about the conditions that produced the result.

It’s for the record now. It’s important to leave a record especially if there will be no consequences.

Even clearly UNLAWFUL
planned courses of [mis-]conduct,
conduct which will result in deaths,
are NOT REQUIRED to be disclosed by
the lawyer in DC. But in (essentially)
every other jurisdiction in the US,
the lawyer would be REQUIRED to disclose,
to prevent the death or serious bodily
injury planned by the “client” (see
contrasting Illinois version, above).

Sickening — just as I said.

p e a c e

It embodies the majority view:

Rule 1.6. Confidentiality of Information

(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.

(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm. . .

[Emphasis supplied.]

This whole thing can, in part, be traced back to the impunity lawyers, carefully-chosen, in DC, are able to pro-offer to their nefarious clients.

Sickening.

I guess my point was that now, in order to avoid being disbarred, they would have some rationales open to them — except as to the Roosevelt precedent. That one they likely cannot skirt.

That was my point — not that they wrote the opinions “after the fact”.

Sorry for being so opaque.

p e a c e

Here is commentary from the Confidences rule in DC:

“. . .The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law; furthermore, it applies not merely to matters communicated in confidence by the client (i.e., confidences) but also to all information gained in the course of the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or would be likely to be detrimental to the client (i.e., secrets). This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of the information or the fact that others share the knowledge. It reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client. . .”

[Emphasis supplied.]

Here is the relevant portion of the Rule, itself:

Rule 1.6(c) A lawyer may reveal client confidences and secrets, to the extent reasonably necessary:

(1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or

(2) to prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client’s confidences or secrets by the lawyer.

Rule 1.6(d) When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary:

(1) to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or

(2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.

Rule 1.6(e) A lawyer may use or reveal client confidences or secrets:

(1) with the informed consent of the client;

(2) (A) when permitted by these Rules or required by law or court order; and
(B) if a government lawyer, when permitted or authorized by law. . .

[Again, emphasis supplied.]

Crap — I am out of time, here, but let me just say that getting these jokers — Yoo, Bybee or Addington, to ever use the “permissive disclosure” standard would be fruitless.

In other almost ALL other jurisdictions, the Rule 1.6(c) standard — the to prevent “death or serious bodily injury” disclosure is MANDATORY.

So too, other parts of the above DC “permissive” disclosures rules would be mandatory — required by the lawyer — in most other jurisdictions.

So we now live with a culture — a dark culture of back-room dealings, that has grown-up particularly in DC (and Nevada) — a culture that does not have reason to fear that its lawyers (if carefully-chosen to be um. . . pliable) will “dime it out” — EVEN if a CREDIBLE intent to commit murder, or torture, is disclosed by the client.

That culture could not flourish with the aid of after-the-fact, exonerating written legal opinions, at least, in New York, California, Illinois, Michigan or almost anywhere else you can imagine. It ain’t pretty, but it is true. . .

Back later.

p e a c e

Then they have made the argument, also pretty much from the beginning, that while courts can interpret the Constitution and the 8th, etc., vis a vis American citizens, when it comes to treaties with no enabling legislation (like the Geneva Conventions and kind of the Torture Conventions – although they pretty much have ignored the War Crimes Act and Torture Victims Act on that front, which is why they’ve relied on state secrets in the TVA instead of arguments) then the President has the sole and unfettered ability to decide what the words in the Conventions mean.

What left them whining was Hamdan’s ruling that the Court could and would decide not only to whom general article III of the GCs would apply, but also, while giving loads of deference, would also apply to determine if the interpretation of the treaties made sense. Apparently Yoo and others are still arguing that ” the Court is wrong” on that one, and that if Congress doesn’t add in enabling legislation, then it is up to the Exeuctive to decide.

That’s also the horrors of the DTA and MCA. Congress whored itself out to be a part of the Emperor’s club. Now we have a truly horrible situation.

Thanks Carl Levin and Harry Reid and Chuck Schumer.