Peter Friedman, Case Western Reserve University School of Law:

"It should come as no great surprise that the Red Cross has reported that the U.S. used psychological and physical coercion "tantamount to torture" on Guantanamo Bay detainees and that doctors and other medical workers helped plan interrogations in "flagrant violation of medical ethics." As Philip Carter wrote not too long ago in connection with the torture exposed at Abu Ghraib, the treatment of prisoners taken by the U.S. "wasn't a failure of implementation, as [Condoleeza] Rice and other administration defenders have admitted. It was a direct—and predictable—consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11."

Re-reading the "torture memos" prepared by the administration only confirms Carter's views. The memos are intellectually specious. The 2002 Department of Justice memorandum that advised torture of prisoners could be justified (the "Torture Memo") limited the definition of "torture" to treatment that causes pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Id. at 1. In reaching that conclusion, Jay Bybee, the memo's author, needed to interpret federal legislation prohibiting treatment of prisoners that caused "severe pain." Remarkably, he looked to 42 U.S.C. §1395w-22 for that definition. Torture Memo at 5-6. The provisions set forth in that section govern benefits under the "Medicare + Choice" plan. It's patently ridiculous to find illumination of the meaning of the term "severe pain" as used in a statute pertaining to torture in a statute pertaining to the regulation of an insurance scheme. An insurance regulation naturally is going to restrict the meaning of covered terms — one of the regulation's purposes is maintenance of the scheme's solvency. Moreover, the statute Bybee cites on this point does not define "severe pain," much less restrict it to pain that is the equivalent of that causes by organ failure or death. Rather, the only reference in the provision he cited to "severe pain" is in subsection (d)(3)(B), which states as follows:

The term "emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in—

(i) 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,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Bybee, incidentally, has been nominated to the U.S. Court of Appeals for the Ninth Circuit." [November 30, 2004; Raw Data has the post]