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The Justice Department’s Torture Hypocrisy
Investigate Bush lawyers' torture analysis one day, cite it favorably the next.


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Andrew C. McCarthy

The Obama Justice Department is engaged in the worst type of hypocrisy. Its Office of Professional Responsibility (OPR) is nearing completion of a 220-page report which will recommend that Attorney General Eric Holder refer former Bush administration lawyers to their state bar disciplinary committees over purported ethical lapses in the legal analysis those lawyers drafted to justify harsh interrogation techniques that critics — including President Obama himself — have labeled “torture.” The draft report, which is not public, was nevertheless reported on last night by the Washington Post and New York Times — apparently based on leaks from the Justice Department (in an ethics case, no less). Such bar referrals could result in profound professional and financial damage, potentially including disbarment — all due to actions the lawyers took in defense of the United States after the 9/11 attacks.

Yet, even as the OPR report is being finalized, even after Obama declared himself open to the possibility of criminal prosecution against the Bush officials, and even after Holder promised to conduct an investigation that would “follow the evidence wherever it takes us, follow the law wherever that takes us” (emphasis added), the Obama Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims. In fact, as the Obama Justice Department argued to that appeals court a little over a week ago, the torture law analysis in question has already been adopted by another federal appeals court.

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The legal analysis was first developed in 2002 by two lawyers from the Bush Justice Department’s Office of Legal Counsel (OLC): Jay Bybee, the former OLC chief who is now a federal appeals court judge in California, and John Yoo, Bybee’s deputy who is now a law professor at Berkeley. Construing federal anti-torture law — which is derived from the United Nations Convention Against Torture (CAT) — Bybee and Yoo’s memoranda stressed that torture is a “specific intent” crime. As the lawyers concluded after studying the relevant history, this means it was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him. It is this theory that has provoked howling on the antiwar Left, which alleges that it was the lawyers’ clever way of green-lighting unlawful prisoner abuse. 

Yet, this very theory is now being advanced by the Justice Department under Attorney General Holder. On April 23 of this year, only a day after Holder — taking his lead from the president — promised to investigate Bybee, Yoo, and other government lawyers, the Justice Department filed a brief in a case called Demjanjuk v. Holder in the U.S. Court of Appeals for the Sixth Circuit in Ohio. The brief urges the federal courts to consider the same torture analysis over which Holder is targeting the Bush lawyers with such fanfare. You can read the brief here. [A PDF will have to do: After discussing the Justice Department’s hypocrisy on NRO’s Off the Page, I can no longer locate the brief on the site where I first found it on Sunday.]

The case involves John Demjanjuk, a Nazi collaborator who has been fighting his removal from the United States for years. In a last gasp, Demjanjuk now claims, under the CAT, that his extradition would violate U.S. and international torture law. Given his advanced age, failing health, and expectations of abuse, he contends that extradition to Germany for trial and incarceration will cause him severe pain and suffering.

This claim may seem frivolous, but the government nevertheless undertook to respond to it. In so doing, prosecutors argued to the court that even if Demjanjuk were put in severe pain, there could be no torture unless he could establish that government officials had an evil motive to inflict severe pain and suffering on him. As the Holder Justice Department puts it on pp. 20–21 of the elusive DOJ brief:

[T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.”  Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”) [my bold italics and brackets]. . . .  



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