We are just learning today that the Justice Department's Office of Professional Responsibility has basically chosen to clear, in a limited sense, both John Yoo and Jay Bybee. Lower officials wanted to say that John Yoo’s and Jay Bybee’s advice was so poor that it constituted a breach of professional conduct, which would have led to all kinds of consequences, possibly even endangering their law licenses. Now they have been overruled and the judgment was downgraded to “poor judgment” which is a reprimand, but not half as bad.
But bluntly, even that is unfair. And this is something even a non-lawyer is likely to get. Let’s just take one example: torture.
Torture is banned in 18 U.S.C. §2340A, without defining it. Then in §2340 (yes, without the “A”) it defines what the term means. Are you ready for a crystal clear definition that tells us that waterboarding is clearly banned, a regular rosetta stone, giving us a gateway to clarity if not on the moral issue, at least on the law, right? Right?
Um, not exactly. Here is what the law says:
As used in this chapter - (1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
So basically torture is severe physical suffering, the threat of death, the administration of drugs, or the threat to do any of the above. Well, that is all well and good, and the stuff on death and death threats, and drugs are reasonably clear but you don’t have to be a lawyer to realize that there is an unanswered question here: just how “severe” is severe?
It’s kind of a matter of opinion, isn’t it?
It certainly is in ordinary conversation. I mean the left, who is so fond of saying, “one man’s terrorist is another man’s freedom fighter” has a curious degree of certainty on this topic.
Now sometimes lawyers come up with phrases that sound really vague to regular folks, but are in fact crystal clear to lawyers. So is that the case here?
Not that I can tell.
But it gets even worse than that. You see this is a criminal statute, and when it comes to criminal statutes a special rule of interpretation, called “the doctrine of lenity.” What it means is that all ambiguities in regard to criminal statutes are resolved in favor of the defendant. So, when a person is tried under this statute, the courts will be required to interpret the term narrowly; only the most severe conduct would be considered “severe” enough to count.
Oh, and as if that isn’t bad enough that vagueness itself is actually a constitutional problem with might invalidate the statute. They say it is void for vagueness, in those situations and it is consdered to be a violation of the Due Process Clause. This site says it well when it explains the logic behind it:
If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague. The U.S. Supreme Court has said that no one may be required at peril of life, liberty, or property to speculate as to the meaning of a penal law. Everyone is entitled to know what the government commands or forbids.
Now in truth, the courts fudge this a little. For instance, there are many laws that declare “acts against nature” illegal. Well, sheesh, what could be more vague? But the courts have upheld such laws, because, well, the specific conduct involved is so noxious I guess the courts figure you have to know it is illegal. You just stuff like sleeping with animals.
But do you still feel good that waterboarding is clearly torture under this law? It involves leaning a person back and pouring water down their nose. Because their heads are leaned back, it doesn’t go down their windpipe, it just fills your sinuses. I have no doubt it is irritating, indeed maybe even scary as crap, but severe physical suffering? Hard to say.
So next time they tell you that Yoo or Bybee was wrong to say that the statute was not being violated, you remember what the statute actually says—not the fairy tale you have been told about it.
