A Torturous Compromise

[Winehole23]

I know Darrin, but your figure of speech opened the door, so I had a little fun with it.

Does disbarment seem like too much to you?

[DarrinS]

I know Darrin, but your figure of speech opened the door, so I had a little fun with it.

Does disbarment seem like too much to you?

As long as their quest to punish these "evil doers" doesn't take away resources from more pressing issues, I don't care.

[LnGrrrR]

Bush was a bad president and he appointed a lot of incompetent people. But, that's not really enough, is it? We need some ing heads to roll. Am I right?

That's usually what happens when people in high positions up. Or do you want to coddle them? Tell them it's ok they messed up, they didn't know any better, want a bottle?

[Winehole23]

As long as their quest to punish these "evil doers" doesn't take away resources from more pressing issues, I don't care.

I asked about disbarment, not the show trials. The State Bar Associations get by on member fees, not public money.

Are you for or against disbarment of Bybee and Yoo?

[DarrinS]

That's usually what happens when people in high positions up. Or do you want to coddle them? Tell them it's ok they messed up, they didn't know any better, want a bottle?

No, that's the new and improved interrogation technique. Brisk genital massages followed by a stern talking to.

[ChumpDumper]

I was waiting for Yoni to attack the Bush administration's review and loudly proclaim that they are trying to tear the country apart by saying Yoo and Bybee's torture memos amount to legal malpractice.

[Yonivore]

I was waiting for Yoni to attack the Bush administration's review and loudly proclaim that they are trying to tear the country apart by saying Yoo and Bybee's torture memos amount to legal malpractice.

Actually, Chumpy, the investigation is being conducted by non-Bush appointees in the Office of Professional Responsibility. But, I'm glad you pointed out the news because, I've got a couple of articles for you. One (which I'll save for last) shows that Bush administration interrogation techniques were not a departure from those practiced by other administrations (including Bill Clinton's ins uted "torture-by-proxy" policy of so-called extraordinary rendition) since, at least, World War II and only became an issue because traitors in the intelligence community decided to try and take down Bush by leaking classified information to get idiots like you to be the screaming al Qaeda apologists you've become. Nice job.

The first is an article demonstrating the Obama administration is trying to make the same argument for deporting John Demjanjuk, a Nazi collaborator, [who claims his deportation amounts to torture] as did Bybee and Yoo in finding the harsh interrogation techniques did not amount to torture.

I know, what follows is a lot of words for you but, please, try to read them and debate the content instead of dismissing out of hand and jumping back into your regular nonsense.

Up first:

The Justice Department’s Torture Hypocrisy

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:

[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 pe ioner 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 Pe ioner 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.

Next up, a Yale Law Student write in the latest Yale Law Journal to show that Bush administration interrogation policies were not a departure from previous administrations.

Interrogation's Law

William Ranney Levi
Yale University - Law School

Yale Law Journal, Forthcoming

Abstract:

Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, cons ute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.

Accepted Paper Series

You'll have to download the .pdf [at the link] and read it but, here is a relevant section:

This Note has shown that in times of national insecurity since World War II, the law has been interpreted to permit the authorization of highly coercive interrogation methods. The current debate over interrogation law and policy is not served by the erroneous historical framework to which even the opposing parties to this debate have subscribed, namely, that a dramatic break with the past occurred in the aftermath of 2001.

Interrogation's law -- the absolute bans on vaguely defined abuse -- has provided the la ude that has, in turn, permitted the authorization of coercive interrogation since World War II. To declare that the law's mandates were clear before 9/11 but grossly misconstrued -- even repudiated -- in its aftermath, and that if only properly acknowledged will be clear yet again, is to delegate the tough questions in future interrogation dramas to the executive branch agencies discussed in this Note.

This Note has shown how, prior to 9/11, responsible officials who wished to obey the law's uncertain boundaries found sufficient la ude to authorize highly coercive interrogation techniques. In light of the past, there is little reason to expect different practicies in times of future fear. If this is troubling, then a rethinking of interrogation law and policy is necessary.

As is stated, Bush administration interrogation policies do not represent a dramatic repudiation of and stark departure from American traditions. Indeed, Levi shows that, "every interrogation method allegedly authorized since 9/11, with the possible exception of waterboarding, "was authorized at times before 9/11 and was considered to be consistent with the reigning legal framework."

Levi shows that during the period from 1949 to 1973, the CIA authorized the use of, and used, such special interrogation techniques as truth drugs, LSD, heat and cold, "electric methods," and narco-hypnosis. Towards the end of this period, it begin to rely less on severe measures to lower the source's physiological resistance and more on ways to reduce their psychological capacity to resist. This meant increased reliance on isolation, threats, disruption of sleep patterns, and use of stress positions.

The armed forces also relied on narcotics and used LSD from 1958-1962. Even prisoners of war could be made to stand at attention when being interrogated and no time limit was placed on this technique. Sleep deprivation without limitation was also permitted. So was isolation. It should be noted that when these techniques were authorized for use by military interrogators in 2002, they were sanctioned only on a more limited basis and only for use on unlawful combatants, not prisoners of war.

After 1973, interrogation by proxy came to characterize U.S. policy on obtaining information from those who did not wish to give it up. The CIA continued to interpret the law as allowing the use of stress positions, disrupted sleep, solitary confinement, sensory deprivation, threats of violence, temperature manipulation, and examination of body cavities. However, with the agency under intense scrutiny at home and with the law being uncertain (international law on interrogation has been, and remains, short on specific definitions of that which it prohibits), the simplest solution was to farm out interrogations to others. Both the CIA and the U.S. military provided training in coercive interrogation techniques to its proxies.

By the early 1990s, with the end of the Cold War, both the CIA and the military had discontinued such training. But soon the challenges posed by terrorism caused the U.S. to develop a new proxy interrogation regime -- extraordinary rendition. According to Levi, starting in 1995 the rendition of terrorists from one state to another became routine. The CIA would assist with logistical support in the detention and transfer and then, in the words of its former inspector general, "use the fruits" of interrogations conducted by foreign intelligence services, such as the Egyptians and Saudis, employing whatever coercive techniques they chose to.

Thus, when Phillppe Sands (to take one particularly dishonest commentator on the subject) declares that "the U.S. military's long-established constraints on cruelty and torture dating back to President Lincoln in 1863, were. . .cir vented" and "discarded" and that the newly authorized interrogation program "turned its back on this tradition," he is not telling the truth.

But Levi also insists that what he calls "the Bush administration's flawed and careless legal work" also has contributed to the perception that something unprecedented was afoot. He argues, for example, that the "torture memo," with its dubious legal definition of torture and its argument that, as Commander-in-Chief, the president has complete discretion to authorize interrogation by torture despite a federal criminal statute to the contrary, "made it appear that for coercive interrogation to be considered lawful, the existing legal regimes had to be eviscerated. . ."

This too is false. The reality, Levi argues persuasively, is that "all former and present laws on interrogation. . .are vague and contestable, and thus, when context demands, manipulable." If this is problematic, he concludes, "then a rethinking of interrogation law and policy is necessary."

I'm sure you can get someone to help you with the big words.

[ChumpDumper]

Actually, Chumpy, the investigation is being conducted by non-Bush appointees in the Office of Professional Responsibility.

Democrats and liberal groups seem far from ready to close the books on the alleged wrongdoings of the Bush administration if an internal ethics report, as expected, recommends that Department of Justice lawyers who authored the so-called "torture memos" not face criminal prosecution.

In a matter of weeks, the DOJ could finalize its draft report, now 200 pages long, in an investigation that began five years ago.

I'll definitely add the Office of Professional Responsibility if you like. Would that make you happy? The investigation started under Bush. Are you denying this?

The rest is just regurgitated blogs.

I called this way too easily.

I appreciate the fact that the blogs you ripped off also ignore existing case law, which is what this is all about. They might want to consider another line of work. Yoo and Bybee probably will have to soon enough.

[Yonivore]

I'll definitely add the Office of Professional Responsibility if you like. Would that make you happy? The investigation started under Bush. Are you denying this?

Nope but, many government Departments (DOJ included) have independent offices to investigate internal affairs. OPR is that office in DOJ.

The rest is just regurgitated blogs.

I called this way too easily.

Actually, it's not. One is a Yale Law Journal Note -- not a blog.

The other is an opinion article written by the man who prosecuted the first World Trade Center bombers.

I appreciate the fact that the blogs you ripped off also ignore existing case law, which is what this is all about. They might want to consider another line of work. Yoo and Bybee probably will have to soon enough.

You cited a law that relates to criminal prosecutions not enemy combatants.

Then, you say a recent court decision makes U. S. vs. Parker relevant, after the fact.

Got any other case law?

And, why is the DOJ now arguing -- using the same law as was used by Bybee and Yoo -- that deporting a Nazi collaborator to a place where he is certain to receive worse treatment than Khalid Sheik Mohammed ever did, isn't torture.

You didn't bother reading...just say it. You're illiterate. No shame in that.

[ChumpDumper]

You cited a law that relates to criminal prosecutions not enemy combatants.

Wrong. The other relevant cases involving enemy combatants were covered.

Thanks for admitting you didn't read it.

[Yonivore]

Wrong. The other relevant cases involving enemy combatants were covered.

Thanks for admitting you didn't read it.

I must have missed it.

Are they cited in this thread?

[ChumpDumper]

Yep.

[Yonivore]

Yep.

Nope. Not in this thread.

Where did you cite this body of case law?

[ChumpDumper]

Sorry, I thought you asked if it was in the other thread in which the Texas case was discussed at length.

It's there.

Go read it for the first time.

[Yonivore]

Sorry, I thought you asked if it was in the other thread in which the Texas case was discussed at length.

It's there.

Go read it for the first time.

So, you misunderstood the simple question, "are they cited in this thread?"

[ChumpDumper]

I didn't pay you much attention since you obviously didn't read the other thread in the first place and probably won't read it now.

You just aren't that important to me.

[Yonivore]

Are these them? Or, are the more?

United States v. Parker et al, CR-H-83-66 (S.D. Tex., 1983)
United States v. Lee, 744 F.2d 1124 (5th Cir. 1984)

[ChumpDumper]

Seriously, are you looking up the entire case history in FindLaw?

Of course you aren't.

There is more than enough information there to find the actual case numbers if you want them. Since the only thing you will do with them is try to find a blog about them to rip off, it's not a priority of mine to give you the full citation. After all, you tried to deny the very existence of US v. Parker as a stalling tactic.

[Yonivore]

I didn't pay you much attention since you obviously didn't read the other thread in the first place and probably won't read it now.

You just aren't that important to me.

And, yet, you've responded to just about every post I've put up in the past few years.

If you go back, you can bet that most of my posts are immediately followed by one of yours...even when I had you on ignore.

Well played. Especially after I demonstrated that I went back to the thread and looked for your posting.

Incidentally, I do sleep and it isn't always practical to catch up on what drivel's been posted here during that time so, please, accusing someone of intentionally "not reading" as some sort of dodge is pretty lame in a forum that just seems to never sleep and can split topics up into multiple threads, get off topic, change the discussion of a thread, etc...

Well played, indeed.

[Yonivore]

Seriously, are you looking up the entire case history in FindLaw?

Of course you aren't.

There is more than enough information there to find the actual case numbers if you want them. Since the only thing you will do with them is try to find a blog about them to rip off, it's not a priority of mine to give you the full citation. After all, you tried to deny the very existence of US v. Parker as a stalling tactic.

I didn't see your post about FindLaw. Care to share or do I have to go back to a thread that rolled to page two and look again?

I'm sorry, unlike you with mine, apparently, I don't digest your every post.

[ChumpDumper]

And, yet, you've responded to just about every post I've put up in the past few years.

If you go back, you can bet that most of my posts are immediately followed by one of yours...even when I had you on ignore.

Especially when I had you on ignore. There is really no difference from my point of view.

Well played. Especially after I demonstrated that I went back to the thread and looked for your posting.

Then you have already found the other cases. Bully.

Incidentally, I do sleep and it isn't always practical to catch up on what drivel's been posted here during that time so, please, accusing someone of intentionally "not reading" as some sort of dodge is pretty lame in a forum that just seems to never sleep and can split topics up into multiple threads, get off topic, change the discussion of a thread, etc...

Well played, indeed.

So the torture memo fiasco wasn't that important to you -- why do you keep droning on about it and vomiting multiple bloglets concerning it in multiple threads?

[ChumpDumper]

I didn't see your post about FindLaw. Care to share or do I have to go back to a thread that rolled to page two and look again?

That WAS my post about FindLaw. Right there. Since you have found the thread, the cases are threre. If you are going to try to stall and claim they never happened again, that's your business.

I'm sorry, unlike you with mine, apparently, I don't digest your every post.

I believe you don't understand much of anything and are just a blogbot.

[Yonivore]

Especially when I had you on ignore. There is really no difference from my point of view.

So, why do you respond?

Then you have already found the other cases. Bully.

No. Was the post later or earlier than the one in which you listed the two cases I just copied from that thread?

So the torture memo fiasco wasn't that important to you -- why do you keep droning on about it and vomiting multiple bloglets concerning it in multiple threads?

This is ing forum. Do you honestly believe anything we do here is important or will have absolutely any impact on the outcome of the topics discussed?

It's not that topics are unimportant; it's that we're unimportant.

[ChumpDumper]

So, why do you respond?

It's fun watching you squirm -- like when you pretended not to be yourself with that other screen name.

No. Was the post later or earlier than the one in which you listed the two cases I just copied from that thread?

Keep looking. I'm not going to hold your hand.

This is ing forum.

ducks?

Do you honestly believe anything we do here is important or will have absolutely any impact on the outcome of the topics discussed?

It's not that topics are unimportant; it's that we're unimportant.

I never said you weren't unimportant.

[Yonivore]

That WAS my post about FindLaw. Right there. Since you have found the thread, the cases are threre. If you are going to try to stall and claim they never happened again, that's your business.

I believe you don't understand much of anything and are just a blogbot.

So, again, those are the only two cases you're relying on when you state, "The other relevant cases involving enemy combatants were covered."

I'm guessing U. S. v. Lee is a case "involving enemy combatants?" But, even if so, since we know U. S. v. Parker doesn't but, instead, involves law enforcement and custodial suspects where are the other case(s) that would be covered by your statement, "The other relevant cases involving enemy combatants?