TINAFTS Reads the Torture Memo So You Don't Have To

Oliver Wendell Holmes devised the theory that the limits of the law are best understood by imagining a hypothetical “bad man” who, totally unconcerned with morals, would seek to hew to the razor’s edge of legality in his actions. The Path of the Law, 10 Harv. L. Rev. 457 (1897). Turns out the bad man isn’t hypothetical, and your taxes pay his salary.

Recently, the DoJ declassified the Memorandum for William J. Haynes II, General Counsel for the Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Military Interrogation of Alien Unlawful Combatants Held Outside The United States (March 14, 2003) (hereinafter “Torture Memo”).

We here at TINAFTS, as you may have noticed, are a bunch of sexual perverts, deep into the S&M scene, &c., &c. Naturally we read the Torture Memo with gusto, always on the lookout for pointers.

It’s disappointing, to say the least. Apparently the genitals are totally hands-off. Well, that’s not totally true. The rule of lenity applies. You can’t sever or electrocute the genitals. Impalement is probably kosher. Anyway, in the interest of providing you, the reader, with some valuable advice as we move toward final exams, we offer you this, our summary of the Torture Memo.

If you went to UC-Berkeley you could get an easy A by parroting this stuff, but as it is, we recommend that you step lightly lest you wind up in a federal penitentiary.

Did you know . . . ?

• · “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy,” period. This appears to originate in something Bill Rehnquist told Chuck Colson at a cocktail party. Something about a secret war in Cambodia? Torture Memo at 5.
• · United States v. Eisentrager, 339 U.S. 763, 775 (1950) (denying habeas petitions of German soldiers captured in China shortly after WWII) supplies the proposition that the Fifth Amendment does not apply to “aliens” period. Not “irreconcilable enemy elements,” Id. at 784, just aliens. I suppose it follows if you assume that some 14-year-old with a shepherd’s crook is an “enemy combatant”. Torture Memo at 9.
• · United States v. Nardone, 302 U.S. 379 (1937) supplies a canon of construction that “laws of general application are not read to apply to the sovereign.” Torture Memo at 15. This applies to all executive acts. Effectively, if the President does it, that means it is not illegal. Oddly, Chuck Colson is not mentioned. To be fair, Congress could overcome the presumption of executive immunity by specifically targeting the Executive in the statute, but that isn’t the case with “assault, maiming [or] interstate stalking,” Id. at 16.
• · The law against torture only applies to the police. Id.
• · If you stop short of breaking the bones in someone’s face, you have probably not inflicted a “substantial bodily injury.” Id. at 27.
• · 18 U.S.C. § 114, criminalizing what used to be called “mayhem,” requires a mens rea of MPC “purpose”. Cutting out someone’s tongue without the purpose to torture, maim, or disfigure is fine. Pouring molten lead on someone with that intent is also fine. Id. at 30.
• · “Prolonged mental harm” probably only results if you drive someone permanently nuts. Id. at 40.
• · If your express purpose was not to drive someone permanently insane, that’s fine. Id. at 42.
• · You can drug the shit out of someone as long as you did not “calculate” the drugging to produce a profound disruption of sense or personality. Id.
• · If your express purpose in committing torture was not “to commit torture,” that’s not torture. Id. at 58.
• · We’ll listen to those hippie fucks over at the European Court of Human Rights, as long as they’re giving us useful guidance like mentioning that stress positions, hooding, forced wakefulness, and “reduced diet” aren’t technically torture. Id. at 69 (citing Ireland v. the United Kingdom, Eur. Ct. H.R. (Application No. 5310/71) (1978) (identifying aforementioned techniques as “inhuman and degrading”)). But we won’t fucking cite to the case properly, forcing the wiseasses who doubt us to spend 15 minutes on the fucking internet figuring it out. P.S. No way in hell is the format the Bluebook gives (R 21.1) right.
• · If all else fails, claim self-defense. Torture Memo at 77.

I hope we learned a lot!

Why Wikipedia is fucking imbecilic.

The Drive Like Jehu CD, Drive Like Jehu, is blank on its surface except for a line of text reading "CDs really fucking blow."

I mentioned this on that Wikipedia article and they threatened to ban me. Twice.

Decreasingly relevant pop culture review part CCXV

Now I am listening to "Do You Love Coffee?"

It is not about coffee.

It is about a girl.

Who knew?

Decreasingly relevant pop culture review part CCXIV

Right now I am listening to Braid's "I'm Glowing And You're The Reason" off of their 1999 singles/rarities collection Movie Music. I didn't really realize it before, but on paying closer attention to the lyrics it is not a love song, or a song about a girl.

It is about nuclear war. "It's snowing out of season/And you're the reason." Geddit?

Maybe this is trite.

Today I got a cup of coffee with the legend, "Careful, the beverage you're about to enjoy is extremely hot."

What about this beverage, though? Is it hot?

Why does my disposable coffee cup have to be cluttered with this ass-kiss, I'm-okay-though-right-guys?, pointless non-warning, in addition to all the other unnecessary crap that they've printed on it?

It would seriously be sufficient to have a sign up at the store that says "COFFEE IS HOT." Three words, no problem.

The reason this is so prevalent, by the way, is, and not to toot my own horn here, nobody is smart enough to get the real message of the McDonald's Old Lady Vagina Melting Coffee Case, where McDonalds' sold an old lady coffee that was so hot that when she spilled it, it gave her third degree burns on her vagina. The point of that case is the following: If you knowingly supply someone with a product that you know is dangerous, beyond any reasonable usefulness, then you are liable for the consequences.

There is a secondary point, which is this: If you, as a heartless megacorporation, say, in front of a jury, that the dear sweet old lady whose vagina you have just melted off is not entitled to very much money because as an old lady she was not getting much use out of the vagina anyway, that jury will award the old lady with the melted vagina lots and lots and lots of money, just to spite you.

Then that award will be reduced on appeal and nobody will notice.

Anyway, the point of the MOLVMC case is not that you need to notify everyone, like an ass, that your traditionally hot beverage is going to be hot, but that if you are going to serve your traditionally hot beverage so much hotter than is traditional that it becomes dangerous, because you have determined that doing so is somehow better for sales, then you are setting yourself up for tragedy and loss.

This is sort of necessary to read to "get" one of the jokes in the last post.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 15. COCK-BLOCK.

(1) Whoever intentionally, in a bar, nightclub, public house, or other social establishment, through action or omission[1], directly causes another party’s inability to:

a. meet;

b. speak to;

c. make anything less than a neutral impression upon; or

d. go home with

a third party with whom the second party is interested in committing the common-law tort of gettin’ all sweaty-like in the dark, is prima facie liable for the bar shenanigan of cock-block.

(2) The injured party’s lack of a cock to block is no defense.[2]

(3) Whoever intentionally, in a bar, nightclub, public house, or other social establishment, through action or omission, allows a fourth party to come between the second and third parties who then effects the commission of prima facie cock-block, is prima facie liable for being a lousy wingman.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 228. DIBS.

(1) It is an affirmative defense to a claim of cock-block if the defendant is able to prove that:

a. the defendant saw the third party first;

b. the defendant made an announcement of “dibs” to at least one witness in a tone of voice slightly less than socially acceptable under the circumstances; and

c. the call of “dibs” was made in the reasonable expectation that someone like that would have anything to do with your lard/bony ass.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 229. HEINOUSNESS.

(1) It is an affirmative defense to a claim of cock-block if the defendant is able to prove to a substantial certainty that:

a. the plaintiff was intoxicated; and

b. had the defendant not acted, the plaintiff would have been moved to run home the next morning wearing only that clothing that was within arm’s reach at the moment, consciousness and sobriety being regained, it became clear that the other nearby naked body could be mistaken by a reasonable person for a puppet from The Dark Crystal.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 230. PSYCHO.

(1) It is an affirmative defense to a claim of cock-block if the defendant is able to prove that he had foreknowledge to a substantial certainty that had the defendant not acted, the plaintiff would have been forced to spend the next four hours hearing about the third party’s (a) parents, (b) pets, (c) abnormal hobbies, (d) history of psychiatric or psychological treatment or (e) refusal to avail oneself thereof, (f) previous spouse, (g) previous fiancé/e, (h) previous boyfriend or (i) girlfriend, (j) roommate, (k) television-watching preferences, (l) suicide attempts, (m) Republican political leanings, (n) tedious academic interest, (o) conspiracy theory, (p) religious convictions, (q) UFO abduction experience, (r ) opinions about Hollywood celebrities, (s) alimentary canal, (t) personal hygiene, (u) summer spent following Phish, or (v) any combination of two or more of the above individually or severally.

(2) If the plaintiff and the third party have at least one of the above in common, with the exception of (m) and (u), the defense is invalid.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 231. BROS BEFORE HOS.

(1) It is an incomplete affirmative defense to a claim of cock-block if the defendant asserts that drinking with one’s friends is as a matter of social policy superior to the prospect of a few minutes of carnal abandon.

(2) A defendant who exerts the defense of bros before hos avoids whatever full penalty the court might have otherwise imposed, but is now bound, for the rest of defendant’s life, to listen when plaintiff vents about what a romantic failure plaintiff’s life has become, at whatever hour and in whatever place and manner such venting shall occur.[3]

(3) An individual who has asserted this defense is estopped from bringing suit against any other individual for violations under § 15 of this Restatement or any substantially similar tort. Ever.

RESTATEMENT (SECOND) OF BAR SHENANIGANS § 232. IL CONSIGLIERE.

(1) It is an absolute defense to a claim of cock-block if the defendant can prove to a substantial certainty that had he not interfered plaintiff would have wound up

a. in grainy,

b. semi-intelligible

c. black-and-white photographs plastered all over the front of a one-sheet less than half as funny as this one, and

d. subjected to inexplicable moral opprobrium masquerading as humor,

(2) regardless of how richly you might have deserved it. Fucking get a room.

---

[2] Some jurisdictions recognize an identical but separate offense in this case, the name of which varies but follows the form [RELEVANT ANATOMY]+[RHYMING SPORTS METAPHOR]

[3] Formerly those defendants who exerted this defense were also compelled to walk about the location at which the precipitate cock-block occurred, wearing the “White Hat of Shame.” This practice has fallen into desuetude as those inclined to exert the defense now wear the hat everywhere already, as a preemptive measure.

This is what I do for laughs these days.

COURT OF APPEALS OF MINNESOTA

David WATTS, Plaintiff

v.

Raymond DAVIES, Defendant.

15 Nov., 2007

RADETZKY, J., delivered the opinion of the Court.

On 30 May 2007, defendant Davies entreated plaintiff Watts to meet at Minneapolis drinking establishment The Library. Watts initially refused but Davies persisted, exclaiming, “Bro, I can’t hit the bars alone—I need a wingman. Come along and I guarantee I will get you laid.” Watts assented. The parties met at The Library at approximately 10:30 PM on the day in question.

Once inside, Watts made a good-faith effort to aid Davies in his attempts to, in Davies’s words, “get his mack on,” introducing him, and vouching for his freedom from disease, to no fewer than four age-appropriate women and one “cougar”. Davies’s passes were all unsuccessful. During one these failed, long-winded passes, Watts slunk away and initiated conversation with the foxy redhead, easily a “9,” sipping bourbon at the end of the bar. Over the next hour, Watts engaged aforesaid foxy redhead (hereinafter “Fox”), in scintillating repartee about Jean-Paul Sartre’s relationship with Simone de Beauvoir and the unrivalled girth of Watts’s penis. Watts and Fox agreed to retreat to an establishment with a less crunk PA “in order to get to know each other better.”

I pause to emphasize that only in the case of an utter lack of plausibility or a clear and flagrant abuse of discretion may the district court reject the jury’s findings of fact.

At the moment that Watts entered Fox’s number into his iPhone Davies, propelled by “Skull-Fuckin’ Ed” Torgerson, president of the Ishpeming, MI chapter of the Outlaws, common-law husband of Sheila Borg (Davies’s most recent failed conquest), and all-round hard ass (not a party to this lawsuit), crashed into Watts, sending the phone to the bottom of a pint of Premium, and driving Fox out of the bar.

Watts cannot remember Fox’s phone number, or her name, as “it’s Polish or something. I was pretty buzzed.” Affidavit of David Watts, ¶99.

Davies asserted Bros Before Hos, Rest., 2d, Bar Shgns. § 231, against the cockblock count, and Watts does not raise that issue on appeal, instead assigning error on the award of damages in the second count, breach of contract, where specific performance was ordered. Watts alleges abuse of discretion, and “bro, sick!” While this court has held in the past that all that “bro” shit is compensating for something, we agree that the damage award was excessive.

On his own testimony, upon returning home from the Library, Watts took it upon himself to mitigate his damages personally to the extent that he was able. The award is accordingly reduced to a two-song lapdance at Sheik’s with a clumsy dancer with no tolerance for “handsy” guys.

The decision of the lower court is hereby AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings not inconsistent with this opinion.

---

Retro is accelerating.

Right now I am in a hotel in Madison, WI and When Harry Met Sally is on. It is the part of the movie that was intended to be "now" when the movie was made, and I noticed that the people are not dressed that unusually.

For example, I am dressed not dissimilarly to Billy Crystal.

I am not going to bother looking up the year that When Harry Met Sally came out, but I would guess 1990. I think that anything less than 25 years old should not be fair game for revival. What photographs will we laugh at?

Speed dating sucks, are you surprised?

On Friday night a group at my school put on a speed dating event to help sponsor a series of two-week internships in the field of asylum and immigration law. Because I hate our freedom and want to see the country overrun with whiny foreigners who can't stand a couple violent reprisals when they're mouthy enough to point out that their own country is run by corrupt thugs, I headed down to Dinkytown and ponied up the $8.

The event was divided into four rounds, each one lasting 50 minutes and involving 10 individuals of each sex. I missed the cutoff for round 3, which meant that I fell into the round for which at least six women had to be recruited who had just been in rounds 2 or 3.

This also meant that my friends were all in round 3, and I had to stand around drinking for an hour while everyone else in the bar was speed dating. You'd think that would have been a problem. It was: I could not get drunk enough to handle speed dating in only one hour.

When my round started, I realized that not only were most of the women repeaters, many of my opponents (yeah, opponents. Prove they're not.) had been in previous rounds. I wonder if I was the only person in round 4 not going through the whole thing twice. I wonder if anyone noticed. I wonder how sad that is.

No I don't. That's pretty sad. That's Special Olympics, "let your little brother win next time" sad.

I had not made any particular preparation for the speed dating. The rest of my peer group, here defined as "First-year law student heavy smokers" were wearing suits and had prepared unctuous, insincere responses to the inevitable comments. I brought to mind a dimly-remembered Harper's back page blurb about a speed dating event held at some scientific conference, where the participants, being nerdy, had attempted to quantify the results and determined that asking open-ended questions as early as possible is the single dispositive factor under the participants' conscious control.

I tried to keep that in mind, but there is something about playing musical chairs in a dark room while trying to seem sane that rendered the above far easier said than done. I suppose that it would have done to make certain to follow that advice right from the beginning, but as my first speed date was an organizer of the event clearly pressed into service to fill out the final round, and a member of my section, who I knew had a boyfriend not of the "speed" persuasion already, I elected to just talk shop.

Out of ten conversations, four of them were not composed totally of shop talk. One of these was with a med student with an incredibly arcane specialization that I was totally unprepared to feign interest in. Another revolved around the Russian woman's surprise that I could read Cyrillic, totally unwarranted in light of the fact that she knew beforehand that I speak Uzbek. I am continually amazed at the total lack of curiosity of Russian people for a) the rest of the former USSR; and b) the parts of Russia that they do not personally live. Then I met the girl who was apparently in every one of my classes whom I swear to God I have never seen before in my entire life. At some point I asked her what she thought of the Teletubbies, but I don't know why and the bell rang right as she started to answer.

I really don't want anybody's opinion on Teletubbies anyway, honestly. If I met someone who did have an informed opinion on them, I think I would stand up and walk away.

The last of the four non-shop conversations was about Dungeons & Dragons. Not entirely true. It was about some non-D&D RPG that even I think is square.

The way that I know that I didn't have enough to drink is that I still remember all of this, even two days later.

You need to go die.

• Local music "journalists".


• Ron Paul hippies.


• Pirates, ninjas and zombies.


• Cokeheads.


• Misbehaving celebrities.


• People who devote attention to celebrity misbehavior.


• Bill O'Reilly.


• Ironic metal "fans".

That is all.