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Maureen Mahoney’s Dirty Bomb

My last post called Jay Bybee’s response to the OPR Draft, written by Maureen Mahoney, “funny” (as in, stinky) because neither the response nor Tim Flanigan’s declaration included in the response provided any details of the key July 16, 2002 meeting described in the OPR report.

But there’s something about Mahoney’s response which is even funnier (as in, makes me want to vomit from vertigo).

Mahoney spends three pages of her response (PDF pages 81 to 84) trying to justify the Bybee Memo’s unsupported reliance on a ticking time bomb scenario. After spending most of the discussion focusing on whether self-defense was viable in court (asserting, “the Memo’s intended audience would have been well aware that a ticking time bomb scenario had yet not been tested in the U.S. courts”), Mahoney tries to refute the OPR Report’s argument that the ticking time bomb scenario was not a real world scenario.

OPR states that the Memo should have discussed a real world situation in which a defendant could prove that he reasonably anticipated that torture would produce information directly responsible for preventing an immediate impending attack. But see id. at 31 n.17 (mentioning the ticking time bomb scenario as precisely such a real world situation)46

Which connects to this footnote.

Indeed, the OLC attorneys working on the 2002 Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb-a radiological weapon which combines radioactive material with conventional explosives-in New York City. It is easy for OPR, seven years removed from the horror of 9/11 to scoff at the notion of a ticking time bomb scenario, but the context in which these memos were written simply cannot be forgotten.

In other words, Maureen Mahoney, with a metaphorical straight face, points to the claim that Jose Padilla had “was believed to have built and planted a dirty bomb” to support her claim that the ticking time bomb is a realistic scenario!

Jose Padilla, of course, was arrested based on claims made by Abu Zubaydah. The dirty bomb claim–particularly the claim that Padilla had planted a dirty bomb, as opposed to just discussed the idea with Abu Zubaydah–seems to have come as a result of Abu Zubaydah’s torture. That torture was retroactively authorized by a memo signed by Maureen Mahoney’s client.

And now Mahoney is using evidence derived from that torture to argue that the claims in that memo were justified.

So to prove that this ticking time bomb thing is a “real world situation,” Mahoney points to evidence that exemplifies, instead, how easily torture reproduces the fictions that haunt the imagination of the people administering the torture. Maureen Mahoney points to one of the most glaring examples of the lies that torture produces as the “real world situation” of Yoo and Bybee as they retroactively authorized the torture that created that false “real world situation.”

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