Torture legalities have to be open

Elizabeth De la Vega weighs in as a former prosecutor on the torture issue arguments for real life law as practiced by the DOJ. It is worth thinking about. Current opinions on the justification for waterboarding are secret, and legal arguments in its favor less than convincing.

The DOJ trial attorneys handling the real-life prosecution of Chuckie Taylor Jr. are, on the other hand, not confused in the least about the law of torture. Here is what they’ve had to say:
First, a defendant doesn’t get to walk merely because the indictment charges acts – such as pouring hot water over a victim’s body and administering electric shocks to his genitalia – that are not specifically prohibited by the statute.
This argument – that a person cannot know whether his conduct falls within the definition of torture unless it is expressly proscribed by Section 2340 – is precisely the one we’ve heard from Michael Mukasey with regard to waterboarding. Unfortunately for the new attorney general, however, his subordinates on the front lines consider this contention barely worthy of discussion.
For starters – and here I must interject because the prosecutors obviously found this point too basic to mention in a court filing – almost no criminal statute purports to exhaustively list all the means by which it could be violated. First degree murder, for example, is usually defined as “an unlawful killing with malice aforethought.” No laws that I’m aware of specifically proscribe, say, killing your spouse by injecting his pumpkin pie with deadly bacteria in order to cause fatal septicemia – not something my actual spouse needs to worry about, by the way – but ordinary people contemplating this course of action would know that it could well constitute first degree murder, and really ruin a good Thanksgiving dinner.
The operative word here is ordinary – which is precisely what the Justice Department attorneys stressed in their response to Taylor Jr.’s motion. The test of whether a statute provides adequate notice to a prospective defendant, they pointed out, is the same in every criminal case. As the Supreme Court held years ago, the issue is simply whether “reasonable” or “ordinary” persons could consider their conduct in light of the language of the statute and know that they were at risk for prosecution.
Can ordinary people evaluate whether certain acts or courses of action could reasonably be considered as “specifically intended to cause severe physical or mental pain or suffering” such that they would fall within the prohibition of Section 2340 – even though those acts are not itemized or described in detail?

Second, the Justice Department attorneys were equally dismissive of Taylor Jr.’s contention that the torture statute is overly vague because it does not separately define the term “severe” in the phrase “severe mental or physical pain or suffering.” This argument sounds awfully familiar as well, doesn’t it?
Unfortunately for the White House, this, too, is a common defense claim that the Supreme Court has addressed with a basic rule: When words are not defined in a statute, they “will be interpreted as taking their ordinary, contemporary, common meaning.” Nothing tricky here at all, the federal prosecutors argued in their reply to Taylor Jr.’s motion to dismiss. On the contrary, the criminal code is “replete” with instances of “statutory elements that call for juries to use common sense to evaluate terms such as severe pain, serious bodily injury, severe mental or physical pain.” The jury in the Taylor Jr. case would be equally capable of applying the common-sense meaning of “severe” to the facts of the case. The judge agreed.
Finally, what do Justice Department prosecutors and assistant US attorneys think of the notion – advanced by both defendant Taylor Jr. and the Bush administration – that the torture statute is so impossibly complex that it can only be interpreted by experts?
Not much. This is what they argued in their reply memo:
“Defendant is wrong to suggest that the torture statute presents novel questions for which courts and juries are ill-equipped.”
The DOJ lawyers prosecuting Chuckie Taylor on charges of committing and conspiring to commit torture are, of course, correct – on all of the above. And Attorney General Michael Mukasey already knows it.

Yes, Bush administration officials could claim they relied on legal opinions written by DOJ appointee Steven Bradbury. But in criminal law, the defense of reliance on advice of counsel requires good faith, proof of which would be an uphill battle when those legal opinions were kept secret because they purported to sanction conduct which has been universally condemned for centuries.

The 1% rule of Dick Cheney’s making does not work in the rule of law, and to actually institutionalize a waterboarding policy into bureaucracy is very dangerous to us all. And the rejoinder of other 1% threats or less when we do not invest in basic defense measures as defined in other posts makes the argument dishonest.