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EMTALA and the torture memos

Just as no one ever expects the Spanish Inquisition, I'm sure no one ever expected that EMTALA would be used like this....

Jack Goldsmith, now a law professor at Harvard, used to head the Justice Department's Office of Legal Counsel.  He's famous for having retracted John Yoo's "torture memo" of August 1, 2002, on the grounds that it was "legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary." [p. 151]

One of the ways that it was flawed, Goldsmith reveals in his book about his time at OLC, was its definition of torture.  According to the memo, in order for pain inflicted on a prisoner to amount to torture, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  Goldsmith doesn't think this assertion had very much legal authority to back it up.  Which isn't surprising, given that the description of pain was not derived from any authority having to do with torture, but instead was lifted from EMTALA's definition of the kind of pain severe enough to constitute an "emergency medical condition" triggering a requirement for most US hospitals and doctors to provide certain kinds of medical treatment.  Goldsmith calls this use of EMTALA's language in the Torture Memo  "clumsy definitional arbitrage" that "didn't seem even in the ballpark" for definining what kinds of severe pain might amount to torture [p. 145]

Fascinating.  Creative use of authority like this is why some lawyers make the big bucks, are given top-level jobs in government, and occasionally suffer professional humiliation.

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