of immigration appeals reversed the i j s findings without sufficient explanation contrary to everything in the record ignoring important undisputed evidence and without challenging any of the i g f factual findings  s opinion is just contrary not only to the factual record but also to in terms of the legal principles that would be a state or contrarian in conflict with traditions that this court has taken over and over again factual decisions which the court also explained in manning recently requires that it be supported by reasonable substantial and probed of evidence in the record when considered as a whole and that goes back to isn't torture isn't isn't this really a question of taking section twelve dot eighteen the implementation of the convention against torture and looking through that and studying those definitions and comparing that to the facts of the case that's really essentially with this case is about is that it is applying the convention against torture to the facts of the case but for example the b s a said he wasn't given it would be a new standard other words he said well he wasn't given psychotropic mind altering substances but it doesn't matter what he wasn't subjected to it matters what he there is law donnelly in the supreme court as to whether it's in a cement violation but also in the context of torture the the international standards are that solitary confinement for more than thirty days for  with the government against himself and against the confederates that is unlawful that is a violation of the convention against torture if solitary confinement at the m c c or the m d c or florence colorado were impose government has instituted this program not as it maintains for purposes of preventing members of organized crime from getting information and directive out to their colleagues out of the prison but instead simply as a device to break people and get them to cooperate is that what we have to decide in order to reverse the be here no because the b i didn't  that issue as to on the whole i think you would remanded for them to actually reach the issue but i think you would have to find it as a matter of forever but here this defendant let's told that this was exactly what he was told over and over again if you're going to be  medical care you can't see a psychologist and you can't see a doctor until you start cooperating so those are things that make it very different things can be you know do get it within the convention now let me just say that in terms of it what the to meet with other three other prisoners in in groups of four but then broke that group up after a short period of time so that they wouldn't see see more of the same people and develop friendships and trust and so forth which which was to their to the to the stated purpose and trying to prevent collaboration crimes being engineered from the prison but there is a specific finding by the the i a e a and a statement that it's designed to evidence why can't there be substantial evidence and still be consistent with with with substantial evidence the other way but it's it's to be i e s determination because it's not real and it's it's not competing evidence it's purpose of this is so the explicitly expressed to the people there and also known in the european community in the council it's in our brief you know the only european human rights organizations the council of europe that have that have tried to get information and visit the facility but it's also one of the purposes is to break that and so it's not and i think the substantial evidence you can be a can't ignore  like finding that the purpose by an international organization that the purpose was to break and not to do the other morgue where you could not be it's it's in our briefs and it e v f to be council of europe at some point says  that that is that they want more information about that from the the italian authorities as to nightly exploits splendid but also there was expert and also expert testimony that that is one of the purposes so this program was not a lawful sanction because the intent of the program was to break prisoners psychologically course students cooperating with law enforcement officials as opposed to it to stencil purpose to isolate dangerous members of criminal organizations in order to prevent them from orchestrating in prison meant was to get him to give information about other members of the mafia repeatedly not only was he told that just initially but also when he made requests to see doctors and see psychologists because of the effect that these conditions were having on and he was told well you're you're you're non compliant because you have been collaborated with the government yet and so therefore you won't have a doctor see we don't have a psychologist so yes his it's his testimony uncontroverted it's the experts testimony and yet you know obviously passed on that issue but created all sorts of other limitations on his role in the sicilian mafia boss he was still there but the and the and the be a did not challenge or controversy a single credibility finding by the i j you have a three page b a was what is your evidence of an intent to courts or part of on the part of putting him in the program which is they put him in the program with an intent to inflict physical pain and suffering yes because that's the nature of the program itself and also when you talk about intention this court has done a number that gets down to the question of what the purpose of the program to disrupt criminal organizations and there was evidence about the design the government stated purpose of what the program was about which was this business of keeping these people isolated from one another so they couldn't commit specific intent and draws on the criminal definition so it seems to me that one question is is this program designed not medicine of course not to create any particular symptom but is it designed for the purpose or with conscious awareness that it is going to create severe mental suffering is that not a requirement torture yes but it but but and the answer is yes and yes because the conditions are imposed for the purpose of breaking prisoners even that excuse me even if they are imposed with one purpose for i've heard it said by justice department officials that one of the things that is good about mandatory minimum sentences is that it encourages cooperation that's one of the reasons why people are incarcerated for extreme lengths of time or can be under the statutes but the question is not is it something that is a harsh condition that is likely to and maybe even is intended to encourage people to change their ways as it were the question is is are these conditions either specifically designed to cause serious mental suffering is even is there of you know let's go with willful blindness or even recklessness conscious understanding that it is going to cause severe mental suffering is that a requisite for it to be torture regardless of what purposes the ultimate motive is of making a harsh regime is there not that kind of specific intent requirement even if there is meant here because yes th denial of medical care the denial of psychological care the arbitrary imposition of solitary confinement the interference with visits and making it very difficult for the defendant to communicate with his family making it almost impossible for him to do so those are all elements that are specifically designed to cause the kind of mental suffering that would make someone say ok i give up i will not cooperate with the kind of suffering that makes someone give up is not necessarily the same thing as severe mental suffering there are a lot of things that lead me to cooperate with authorities because i want to go to prison at all because i would for many people the impetus is they don't want to give up their their money and if you offer them no forfeiture they'll cooperate that doesn't mean that those things constitute severe mental suffering or that  g opinion because i stopped before the court but the rationale that the idea used and her her consideration of the full range of the criteria for torture could system squarely within it and and i think that judge would just answer your question which is that if if if someone at the m c c were suffering from a medical problem and the doctor said i can't see you one till you plead guilty or cooperate with the government everyone would have a problem with that and that's what we have here program it's with within us as a sub subsection that deals with mind altering substances or other procedures calculated to disrupt the sensors and that might be waterboarding or might  be you know breaking a person down by not letting them sleep for ten days it's it's it's it's it's sort of a we're a term like god is is informed by the company it keeps which is mind altering substances i don't think that's directed either i would never read this is directed at the tire program well if you have a look you have some if you have solitary confinement combined with a lack of air and a lack of light and systematic denial of communication with family members and denial of medical care i think you get there rather easily but you know even if it's not easily it still gets there and i think that to look at the full range of six and a half year period for someone to be exposed to this is a violation it meets the definition of what you know again be you know the th circuit found that this very best doesn't that does not count for something not when they're implemented in a way that is clearly has a has an alternative purpose that it's expressed explicitly over and over again to the defendant that the expert is behalf of the attorney general i st wanted to clarify that i don't think that there's any dispute here under the law of the court that this is going to be reviewed for substantial evidence and at the board that this in that being reviewed subject to certain conditions before and will be subject to them again the question is whether those conditions meet the legal definition of torture isn't it yes that's better than a no vote that stain over a review is it not internally it's a factual question whether he will be subjected to torture in the future but here i think there's no real dispute is there about what he will be subjected to the question is whether that amounts to torture right so is that not a legal question that we would review de novo or at best for your position and application of law to not particular well there may be some factual disputes there and we can talk about what they are but the ultimate question is whether these conditions meet the legal definition of torture isn't it yes i have actually that's correct  clarified a little bit more on rebuttal but my assumption is the entire program does that or the way he was where some of his request was were taken he wanted to see a psychologist about his and the like the rest a big definition it seems to me it's very hard to see how this case gets the mental suffering challenged on in that particular section subsection four it doesn't and there were no procedures designed to impede his personality i'm sorry i'm summarizing the exactly exact language is made just to help you out the exact languages in order to constitute torture mental pain or suffering must be prolonged mental harm caused by or resulting from a list of things one of which is the administration or application of either mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality that's the language that i think that worker is asking you about think in your honor thank you i mean i think the bottom line here  that there is this part of the the point of the forty one piece is to keep these criminals i feel lated because in order to stop them from perpetuating their criminal activity outside severe beatings or severe sexual violence that was used to coerce that would have what they would have said with torture but they found as a whole the presence of them was used for legitimate purpose and so that is not a testimony and i will say that i i think that speaks to the point to that that i think it's in the record that it's hard to see psychiatry in or thank allah just in the in that prison system which does not constitute torture and then i'll also say that he was treated the same way throughout so he's claiming that he refused to comply with turning over other mafia members but the beginning of his day in the forty one piece to the end he was never retaliated upon and so there was no way the sipek intent to have him turn on his mustache he other mafia members he was just treated as a standard prisoner in the forty one beast and i think korea is there evidence that the standard prisoner is told that you can't see a psychiatrist until you cooperate is that is that something that is a feature of the program no your honor but that would well isn't that something that course he was for that doesn't constitute torture in itself right right but i also he he he testifies that he was also noncompliant with the standard rules of the prison he said that he got in trouble for talking to a prison meet that he was not allowed to talk to and then he said that the he was told he couldn't see  because he was non compliant and i'm sure is whether that means noncompliant with the actual standard rules or not compliant with turning a turning over other mafia members and not so those are not the prison harsh prison systems and there is a reason that italy with their history of pervasive mafia activity have have implemented  your honor i do not know but i go ahead i'm sorry i think i think i think my guess is because there are those programs continue that if such a case such as such a claim was made it was turned down so i just wondered if that was something that you knew anything about i'm sorry i do not know but i if you would like to know more about it i'm happy to do supplemental briefing on it of course  actually i think it would be helpful frank ok i would ask the prisoner if we could have a level of course a blue state what you would likely topic of the letter to be yes yes whether whether detention at a high security maximum security or supermax security prison or detention center is as cruel and unusual punishment go ahead with your game no i just said you said ten pages your honor single spaced yes ten pages single spaced and you'll have to respond at the same time so it will be responsive but this is a matter of research that judge walker is requesting and i assume you can each do it separately and help inform the court  just a couple of things one is with respect to the standard that is to know both for application of fact to law and after and substantial evidence is only with respect to factual the as as set forth in our briefs in detail the i applied the wrong standard it with respect to torture and with respect to torture in terms of mental pain and suffering we're not just saying that that section it goes to be to anything that that that designed to inflict that and judge pooler raise that issue and we certainly adopt it but it's not just limited to the nd is in terms of prolong this is six and a half years of this type  of condition that the district leader was subjected to and it's a range of things that he was subjected to his noncompliance was clearly expressed to him as not cooperated and also and then the genny then that's  uncontroverted factual findings also with respect to the a t f the florence issues there have been some lawsuits with respect to certain constitutional rights and the courts have have changed some of the conditions there as a result of that but also the what's missing from those lawsuits it to the extent that there are any th amendment lawsuits which missing and is trenton's near is that no one is saying that people aren't florence until they cooperate no saying that people aren't florence until they do something that that that the that the state is not permitted to extract from them under the convention against torture that is the distinction here but it's not quite typical in in our system having way for law enforcement to always look for cooperation and always look for people who are in jail to say talk about crimes that they're they're aware of that occurred on the outside and to  apples and oranges your honor for this i've been i've been a defense were forty years and i do not have a single experience in this country of a client being told you can't see the doctor until you cooperate you can't get out of solitary confinement until you cooperate you can't you can't have a lighter area yourself until you cooperate never and i have represented some extraordinarily serious cases i have your clients in for hearings and probably anyone else and this is the distinction that makes this different