When we talk today of the “torture memos,” most of us think about the later memoranda, like the infamous “Bybee Memo” of August 1, Another Tortured Memo from Jay Bybee. Nine years after he left his post as Director of the Office of Legal Counsel (OLC) in the George W. Bush. The Bybee Memo Memorandum for Alberto R. Gonzales We conclude that for an act to constitute torture as defined in Section , it must inflict pain that is .
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Indeed, imminence may be merely another way of expressing the requirement of necessity.
A memo on torture to John Yoo | Vincent Iacopino | Opinion | The Guardian
Also at this alternative link Archived at the Wayback Machine. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution.
Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. As we have previously noted, the “division of treaty-making responsibility between the Senate and the President is essentially the reverse of the division of law-making authority, with the President being the draftsman of the treaty and the Senate holding the authority to grant or deny approval.
Article 3 1 a prohibits mem to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
The Bybee memo requested by Gonzales stated: The necessity defense may prove especially relevant in the current circumstances. Code nor is it found in dictionaries.
Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.
First, the defense is not limited to certain types of harms. The guards interrogated her and regardless of the answers she gave to their questions, they burned her with cigarettes. On some occasions he was tied up and hung against windows during beatings.
As the Supreme Court noted in Cheek, “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury By leaving Section silent as to the harm done by torture in comparison to other harms, Congress allowed the necessity defense to apply when appropriate.
The adoption of such an approach suggests that torture generally is of such an extreme nature — namely, the nature of acts are so shocking and obviously incredibly painful — that courts will more likely examine the totality of the circumstances, rather than engage in a careful parsing of the statute.
If, however, other options permit the defender to retreat safely from a confrontation without having to resort mejo deadly force, the use of force may not be necessary in the first place. Archived from the original PDF on August 12, As for his meals, his captors gave him pita bread and dry cheese for breakfast, rice with dehydrated soup for lunch, and a piece of bread for dinner.
That statutory subsection, 8 U. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible. While the letter states there is little substantive difference between the definition of torture in the text of the statute or reservation and in the Convention, most of the material in this part of the memo is dedicated to explaining why the reservation to the Convention is valid and cannot be overturned.
Archived from the original on 21 January Of these, the Bybee and Bradbury memos provide important insights into the evolution of torture practices for use against so-called High Value Detainees by the CIA.
As this Part will discuss, other Western nations have generally used a high standard in determining whether interrogation techniques violate the international prohibition on torture.
A memo on torture to John Yoo
This fact can bolster and support an individual claim of self-defense in a prosecution, according to the teaching of the Supreme Court in In re Neagle, U. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive — which includes the conduct of warfare and the defense of the nation — unless expressly assigned in the Constitution to Congress, is vested in the President.
Indeed, timing is an indicator of certainty that the harm will tortue the defendant. Torture Report Live Blog”. Retrieved 19 April Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief.
The attackers then doused the vehicle with gasoline.
Another Tortured Memo from Jay Bybee | Brennan Center for Justice
The statute does not define “severe mental pain” and “severe mental suffering” separately. In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act. Based on this distinction, the administration concluded that: These events reach a different scale of destructiveness than earlier terrorist episodes, such as the destruction of the Murrah Building in Oklahoma City in In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts.
Of even greater concern to the Reagan administration was that because of its vagueness this phrase could be construed to bar acts not prohibited by the U. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. The handcuffs cut into his flesh. Or put another way, “other” signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed.
Subasic also was subjected to the teeth pulling incident.
Retrieved 28 January