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DoJ Lawyers Pulled Torture Definition from U.S. Healthcare Law
This morning, Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel appeared before the Senate Judiciary Committee to talk about his rocky time in the administration. Much of Goldsmith's difficulties, of course, centered around his efforts to revise earlier Department memos defining torture, such as the infamous 2002 "Bybee memo" (named after Goldsmith's predecessor Jay Bybee) that defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Goldsmith called that reasoning "severely flawed."
During today's hearing, Sen. Sheldon Whitehouse (D-RI) asked Goldsmith where that definition had come from. "It came from a health care statute designed to define the circumstances under which there was an emergency situation warranting health care benefits," he answered. He explained that "severe pain" is hard to define, and so the lawyers likely cast around for a way to define it -- but that the health care code probably wasn't the best place to look.
Comments (13)
anon wrote on October 2, 2007 12:56 PM:I've been upset about torture and confused by my medical bills but, now, it's all starting to make sense.
duh wrote on October 2, 2007 12:59 PM:"Turns out?" There's no revelation here. Anyone who's been paying attention to this has known this since the torture memo was released.
anon wrote on October 2, 2007 1:01 PM:This isn't news. It's well documented in Joseph Margulies' book, published in June '06.
http://www.amazon.com/Guantanamo-Abuse-Presidential-Joseph-Margulies/dp/0743286855
SPENCER wrote on October 2, 2007 1:10 PM:The thing that I'm curious about is Goldsmith's clashes with David Addington.
Addington, I believe, has never given an interview (does Fox News count?).
squid696 wrote on October 2, 2007 1:17 PM:I am an attorney and I remember making this observation at the time when the document became public. There was some discussion of this at the time, but not very much. It was a convoluted argument, but I believe they looked at the medical references for a definition of "trauma" and found the most horrific definition they could find. This then became the standard for what constitued torture. Anything less was not torture.
I remember thinking at the time that was the most disgusting attempt at statutory interpretation that I had ever seen. This interpretation would have gotten you laughed at in law school and no attorney would have ever actually submitted it to a court in a brief. However, it was never intended to stand on its merits. It was intended as a CYA move to show that what Bush was doing was being done in good-faith because they hasd a legal opinion to back them up. It is truly disgusting and a perversion of the legal profession.
fuzz wrote on October 2, 2007 1:20 PM:Damn! I knew when I read that torture definition a while back that I had read it somewhere before. It's from EMTALA:
"A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in --
placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
serious impairment to bodily functions, or
serious dysfunction of any bodily organ or part, or
"With respect to a pregnant woman who is having contractions --
fuzz wrote on October 2, 2007 1:26 PM:that there is inadequate time to effect a safe transfer to another hospital before delivery, or
that the transfer may pose a threat to the health or safety of the woman or her unborn child."
Oh, I suppose it would be helpful to explain that EMTALA is the basis for whether or not a hospital emergency room can refuse treatment to a patient.
"Any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition" must be provided with "an appropriate medical screening examination" to determine if he is suffering from an "emergency medical condition". If he is, then the hospital is obligated to either provide him with treatment until he is stable or to transfer him to another hospital in conformance with the statute's directives."
The definition I quoted above is the one that defines an "emergency medical condition."
http://www.emtala.com/faq.htm
TheraP wrote on October 2, 2007 1:37 PM:Good thing these guys were not in charge of heathcare! You'd need to be half dead or half alive (take your pick) even to qualify for it!
r€nato wrote on October 2, 2007 2:19 PM:Goldsmith talked about this in a Fresh Air interview a couple of weeks or so back.
NateC wrote on October 2, 2007 4:45 PM:I hadn't heard this before. As a physician (an ICU physician at that) the definition had always struck me as ludicrous. Organ failure is often painless. If your liver or kidneys shut down you gradually become obtunded. Its generally thought to be a merciful way to go for the chronically ill to go.
Some organ failure can be painful (the skin), and some can be unbearably uncomfortable, while not technically painful (heart, lung.) Still, most of our patients in the ICU with organ failure recieve sedatives and narcotics to they can tolerate the painful procedures we do to "fix" them - not for the underlying process.
harper wrote on October 2, 2007 5:08 PM:It's always intrigued me that Yoo & Co. ignored the perfectly good definition of torture in Title 18, U.S. Code, Section 2340:
"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...."
plus some other well-considered ways to louse up a victim's mind.
Interestingly, 18 U.S.C. Sec. 2340A (a) provides that Sec. 2340 applies only "outside the United States...."
Thus, it should apply to every Blackwater or other mercenary using a qualifying "enhanced interrogation technique" on a detainee in Afghanistan, Guantanamo, Iraq, etc.
Oh, BTW torture is a 20 year federal felony, unless the torturee dies from the torture. Then the perpetrator, if convicted, "shall be punished by death or imprisoned for any term of years or for life."
Wonder if that's in the Blackwater new-employee orientation briefing....
anonymous for a moment of venting frustration wrote on October 2, 2007 5:22 PM:I've written lots on this, talked about it with lots of high-level human rights lawyers and politicos. I've blogged and taught lots about the MSM, politics, etc. -- I'm not naive. I understand the psychic shock caused by 9/11, the blood-lust reponse exploited by Cheney-Bush-Perle et al., and the info-news business. But fundamentally, part of me still just doesn't understand (or accept) why the MSM doesn't have 10 talking heads condemning torture every night, for each war-criminal they have who defends it. And I don't understand (or accept) why the reptiles we call Congresspeople aren't taking the lead in speaking out and calling for war crime tribunals, even now during war-time. How else will the US, the country I love, ever take its rightful place in history again?
hairy beavers wrote on December 21, 2007 4:06 AM:gur0287sinkxum8 hairy beavers hairy beavers