Bybee At Nuremberg

A reader writes:

I also just finished reading the 2002 Bybee memo. As a lawyer, one of the things that surprised me the most was Bybee arguing that "suffering" did not have a meaning independent of "pain" in the phrase "severe physical or mental pain or suffering" - in fact, he goes out of his way to change the phrase to "pain AND suffering" (page 11).

Under the canon against surplusage, courts interpret statutes so as to avoid creating surplus, redundant, or unnecessary language. Bybee clearly violates this long-established common law canon by defining "suffering" to mean the same thing as "pain." This is especially egregious because the language here is not "pain and suffering" (which could arguably be a phrase of art), but "pain or suffering," which inherently suggests that the two are different things and that the presence of either justifies a finding of torture. Instead, Bybee defines away the "suffering" element, since it is by far the more problematic. Just to be clear - this is a fundamental issue of statutory interpretation that would be clear to any first year law student.

While the canon against surplusage is by no means an absolute rule (the canons of construction are rather general guidelines to be used when interpreting statutes and they sometimes conflict with each other), these sorts of issues would definitely be considered by a lawyer in considering whether a statute covered specific conduct. That said, there is also a canon called the "rule of lenity" that strictly construes criminal statutes so that potential defendants are not unfairly punished for conduct that does not fairly fall within the law. But, there is also a canon that requires statutes to be interpreted in line with international law, if possible, which would throw open a whole litany of applicable international cases/issues/obligations, since the statute here implements the UN Convention Against Torture. I would expect an honest assessment of the torture statute to address all of these issues, especially since American courts have not ruled on the statute. By ignoring standard issues of statutory construction such as these, Bybee makes clear that he is arguing a position rather than trying to reach the correct result.