Saturday, April 18, 2009

Torture CYA?

Hilzoy makes another valuable contribution to the discussion of the torture memos, and observes that "not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos".

There's also some interesting CYA going on in the footnote on page 44 of the PDF that cites Hilao v. Estate of Marcos, a civil suit. First, there's the weaselly, "The court reached no conclusion that the technique by itself constituted torture." But the footnote continues, "However, the fact that a Federal appellate court would even colloquially describe a technique that may share some [of the] characteristics of the waterboard as 'water torture' counsels continued care and careful monitoring in the use of this technique."

Clearly, this is a "don't come crying to me if you get dinged" warning.

But the case cited is interesting. A description of the case begins: "The district court instructed the jury that it could find the Estate liable if it found either that (1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution, and 'disappearance' or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis for liability ... ". Certainly the memo constitutes at least aiding the CIA in the practice of waterboarding. And it does not take very much to conclude that it constitutes conspiring with them to evade the law. Could Bradbury have felt a bit nervous about his possible personal civil liability if any of the victims managed to gain access to the courts? Could he have been attempting to establish a pre-emptive "they didn't heed my warnings" defense?

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