also got tons out of your article in the most recent Bulletin.

thanks!

A simpler explanation would be that the leaks occurred, as they usually do, because of bureaucratic infighting–between the FBI and the CIA and mostly likely within the CIA as well. This isn’t to say that the CIA didn’t get caught up in its own seeming limitless exercise of power and like most bureaucracies, intensified its futile efforts when it didn’t get the results it wanted.

Another reason I don’t find Ashforth’s performative model very helpful is that it probably is more useful describing the ways closed or autocratic societies maintain power internally. This model doesn’t work as well in the U.S. Let me be clear –it’s not that I don’t think there are many instances in which we are well served in talking about the performativity of many state functions –press conferences and hearings come to mind. I just don’t think the torture network is the best example. Unchecked bureacracy run amok? Sure.

As for the effects of the theatricality on terrorist networks and others external to the U.S., I am not sure the revelations of our torturne network did anything other than confirm long-standing assumptions about U.S. abuses of power, etc.

“We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.”

The memo also includes an appendix which Bybee mentions only once on his page 24, which is the 13,136th word in the memo. Here is how he describes the content and purpose of the appendix:

“Given the highly contextual nature of whether a set of acts constitutes torture, we have set forth in the attached appendix the circumstances in which courts have determined that the plaintiff has suffered torture, which include the cases from which these seven acts are drawn. While we cannot say with certainty that acts falling short of these seven would not constitute torture under Section 2340, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate the law.”

The appendix is the last section of the memo and it begins on his page 47 with the 25,715th word. Its title is:

“Cases in which U.S. courts have concluded the defendant tortured the plaintiff:”

The 11th paragraph, in my view, mentions waterboarding. It says:

“Plaintiff spent eight years in solitary or near solitary confinement. He was threatened with death, blindfolded and beaten while handcuffed and fettered. He [Continued on Page 49] was denied sleep and repeatedly threatened him with dealt. At one point, while he was shackled to a cot, the guards placed a towel over his nose and mouth and then poured water down his nostrils. They did this for six hours. During this incident, the guards threatened him with death an electric shock. Afterwards, they left him shackled to his cot for six days. For the next seven months, he was imprisoned in a hot, unlit cell that measured 2.5 square meters. During this seven-month period, he was shackled to his cot ? at first by all his limbs and later by one hand or one foot. He remained shackled in this manner except for the briefest moments, such as when his captors permitted him to use the bathroom. The handcuffs cut into his flesh. See Hilao v. Estate of Marcos, 103 F.3d 789, 790 (9th Cir. 1996). The court did not, however, appear to consider the solitary confinement per se to constitute torture. See id. at 795 (stating that [“]to the extent that [the plaintiff??s] years in solitary confinement do not constitute torture, they clearly meet the definition of prolonged arbitrary detention.”).”

I hurt inside when I read this long list of acts that the court concluded was torture. The only one not classified as torture was solitary confinement.

I am sorry to take up so much space, but this memo seems to be in support of your topic.

I am not a lawyer, I would rather see than be one, but this entire memo is aimed at giving the CIA some legal cover and to protect the lawyers who wrote them as well. But they, the lawyers, knew that waterboarding was an immovable object, they could rationalize it away, they could not get around it, so they did their best, our nation was at stake they will say. But the lawyers didn??t want to go to jail so they included the citation about waterboarding. This gave them cover, but left the CIA hanging. I don??t think these guys are stupid, but they had an impossible task. And the guys responsible for the rule of law are not stupid either. So if these guys walk, without giving up someone else in the usual give and take of criminal prosecution, then everybody is guilty.

I’m not trying to be topical….