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Monday, October 11, 2010

Is Giants Baseball Really Torture? What Does John Yoo Think?

Posted By on Mon, Oct 11, 2010 at 1:59 PM

click to enlarge John Yoo thinks being a Phillies fan is really torture
  • John Yoo thinks being a Phillies fan is really torture
John Yoo weighs in on whether Giants baseball is, indeed, torture

With a win this afternoon in Atlanta, the San Francisco Giants can actually succeed without making life as difficult as it possibly can be -- a step back from their well-worn motto, Giants Baseball: Torture.

While this low-scoring, high-pressure team is often as enjoyable to watch as drivers' ed videos, does Giants baseball indeed constitute torture? Torture, after all, is notoriously difficult to define.

So, we called John Yoo to talk baseball.

Sadly, our calls and e-mails to the U.C. Berkeley professor and principal author of the 2003 "torture memos" have gone unanswered. But the nice thing about torture memos -- you can read them anytime. (here and here, in fact).

click to enlarge John Yoo thinks being a Phillies fan is really torture
  • John Yoo thinks being a Phillies fan is really torture
Having read through Yoo's scholarship, one could perhaps make an argument that Giants baseball does, indeed, constitute "cruel and unusual punishment" -- however, according to Yoo, should the president demand a suspect be subjected to Giants baseball, there's very little the legal community can do to stop him.

Proscriptions against "striking, beating, or wounding" mentioned in Yoo's memo hark to days in Candlestick Park -- as do any notions of freezing a victim (or sticking him in a wind tunnel with a bevy of malevolent drunks. Ah, the Candlestick nostalgia). Same goes for any precedents relating to "substantial risk of ... protracted and obvious disfigurement."

Yoo's most famous statement regarding what torture is and isn't notes that, to put it bluntly, one's tormentors have to really screw you up before the term "torture" is warranted:

In the case of serious bodily injury, the statute reaches more serious injuries to include those injuries that bear a substantial risk of death, result in extreme physical pain, as well as protracted disfigurement or the impairment of a bodily member or organ. The "impairment" of one's "mental faculty" might be construed in light of the obvious physical contact required for all other injuries listed in the statute.

While Giants past failures -- and the team's present brand of high-pressure success -- have lead many a fan to impair a particular organ -- their livers -- it's hard to think this meets Yoo's elusive definition of torture. Then again, ballpark beer prices could be a factor here.

click to enlarge John Yoo thinks being a Phillies fan is really torture
  • John Yoo thinks being a Phillies fan is really torture
John Yoo thinks being a Phillies fan is really torture
And yet, those hoping to define Giants baseball as torture have something of an in when it comes to "intent." Per Yoo, even interrogators who commit assault and murder are not legally in the wrong for torture: "As long as the interrogators do not intend to murder the detainee, they will not have run afoul of section 113 (a)(l). ..." Sure, the Giants may intend to win every game 10-0. But team management's decision to stock a pitching-rich, hitting-poor lineup -- and the team's own adoption of the motto "Giants Baseball: Torture" -- indicates that the team is performing in just the manner for which it was designed.

This is a key assumption. If so, per Yoo, "to satisfy this intent element, the interrogator would have to intend to cause other severe physical pain or suffering or to cause prolonged mental harm. Absent such intent, the interrogator would not have committed assault with intent to torture." So, if the Giants are playing in the manner they intend, then, perhaps there is something to their self-applied motto. Since, in Yoo's opinion, mental anguish as a result of "torture" can only run afoul of the law if the anguish was incurred during an action among the prohibited "acts listed in the statute." Baseball isn't on that statute, naturally -- so the question of intent becomes all-important.

And yet, in the end, those hoping to equate Giants baseball to torture strike out -- because Yoo's torture strike zone is nowhere near as wide as Eric Gregg's. Here's the professor's checklist for torture:

Thus, to establish the offense of torture, the prosecution must show that: (1) the torture occurred outside the United·States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering.

Giants fans can point to four out of the five -- but using a three-game road trip to Toronto in June to meet the first requirement seems far-fetched. Still, as any baseball fan knows, four out of five ain't bad.

That being said, Yoo's musing on mental anguish -- "Not only must the mental harm be prolonged to amount to severe mental pain and suffering -- certainly rings true for this Giants fan. What is it to be a fan of this team if not a sufferer of "mental harm" due to "prolonged ... mental pain and suffering"?

Two hours to game time. Play ball. Shudder.

Update, 2:45 p.m.
: John Yoo responded to an e-mail hoping to "talk Giants baseball":

I'm a die-hard Phillies fan, grew up in Philadelphia.  I've lived through

decades of terrible Phillies teams.  I am looking forward to the Phillies and

Giants meeting in the playoffs.


When we asked if Giants baseball constitutes torture, he responded:

Whatever Giants' fan think they are enduring, it is nothing compared to

Phillies' fans and their decades of losing teams.

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About The Author

Joe Eskenazi

Joe Eskenazi

Bio:
Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.

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