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.
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:
Quote:
[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]. . . .
The Justice Department brief goes on to elaborate that, even accepting for argument’s sake all his claims of anticipated physical abuse, Demjanjuk had failed to state a legal torture claim because he had not shown that German officials had deliberately created and maintained conditions that were specifically intended to cause severe pain and suffering: “To the extent that German authorities may inadvertently cause Petitioner to experience any degree of discomfort during the course of a criminal prosecution or incarceration, this is not cognizable under CAT. See 8 C.F.R. § 1208.18(a)(5) (act causing unintended or unanticipated severity of pain and suffering not torture).”
This is precisely the theory that Bybee and Yoo outlined in the memos that the Justice Department is now citing as a premise for subjecting them to ethical rebuke — and that Obama and Holder have intimated may be grounds for prosecution. Bybee and Yoo reasoned that unless CIA interrogators specifically meant to inflict severe pain and suffering on the high-level al Qaeda detainees they were interrogating, there could be no legally viable claim of torture.
It is, moreover, highly significant that the Justice Department, in its Demjanjuk brief, so heavily relied on the Third Circuit’s Pierre case. Pierre was a decision of the entire Third Circuit federal appeals court sitting en banc (i.e., all 13 judges). The case involved a refugee under an order for deportation to his native Haiti for imprisonment. He fought removal under the CAT, claiming that, due to various maladies, he would suffer excruciating pain and die if sent to a Haitian jail, where he would unquestionably be denied necessary medical care. The Justice Department did not seriously dispute Pierre’s allegations. But it countered that, even assuming their validity, there could be no torture because a government official’s knowledge that an action, such as denying treatment, “might cause severe pain and suffering” is insufficient under governing law. To establish torture as a matter of law — as opposed to a matter of demagoguery — an additional showing of a deliberate purpose to cause severe pain and suffering is required.
By a whopping 10–3 margin, the Third Circuit judges agreed with that argument. The “knowledge that pain and suffering will be the certain outcome of conduct,” the Pierre majority held, was “not enough for a finding of specific intent” to torture — the exactingly high mental state prescribed in the CAT and the torture statute. To prove torture, it would be necessary for a prosecutor to show “the additional deliberate and conscious purpose of accomplishing” severe pain and suffering. Without an evil motive to torture the victim, there is no torture even if great pain and suffering result.
That this was the controversial Bybee/Yoo theory was not lost on the Pierre Court. The three minority judges pointed out that the majority was adopting it even though the Justice Department’s OLC, under new management in 2004, had withdrawn the 2002 Bybee/Yoo guidance. That point, however, only underscores the persuasiveness of the Bybee/Yoo position. The 2004 OLC’s retraction declined to condemn the Bybee/Yoo guidance — it just refused to stand behind it and opined, after some hemming and hawing, that it was not “useful to try to define the precise meaning of ‘specific intent’ ” for torture. To the contrary, the Pierre court determined — as had Bybee and Yoo — that this was exactly the difficult question that needed answering. Looking at much of the same law and ratification history that Bybee and Yoo had studied, the ten judges in the Pierre majority came to precisely the same conclusion: essentially, preferring the controversial 2002 OLC guidance to the 2004 OLC retraction. Furthermore, even the three judges who preferred to 2004 OLC analysis agreed that there could be no torture without proof that a government agent acted with the “knowledge or desire” that severe pain or suffering would result.
This Third Circuit legal theory is the exact same legal theory the Obama administration has urged the federal court to adopt in Demjanjuk, where it is fending off torture allegations. It is, simultaneously, the exact same legal theory developed by Bybee and Yoo — the legal theory that forms the basis for the Obama administration’s signaled determination to condemn morally, and potentially to prosecute criminally, its political adversaries.
Given that the Bush DOJ memos in question evince an assiduous effort not to cross the line into torture — i.e., they demonstrate the very opposite of the evil motive to inflict torture that the Obama DOJ has just told a top federal court is necessary to establish a violation — it is simply shameful for the Justice Department to be pursuing this partisan witch-hunt.
Investigate Bush lawyers’ torture analysis one day, cite it favorably the next.
