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Torturing Judge Bybee: Make Him Eat His Own Words
If the day comes that Congress finally does its duty and begins an impeachment effort against 9th Circuit Federal Appeals Judge Jay Bybee, the former Bush assistant attorney general who in 2002 authored a key memo justifying the use of torture against captives in the Afghanistan invasion and the so-called "War on Terror," it would be fitting punishment to watch him squirm as his own words as a judge were played back to him.
It was as an Appeals Court Judge Bybee, sitting on a case being heard in 2006 by the Ninth Circuit Court of Appeals, that he wrote the following words:
"The only thing we have to enforce our judgements is the power of our words. When these words lose their ordinary meaning-when they become so elastic that they may mean the opposite of what they appear to mean-we cede our own right to be taken seriously." (Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc.).
Yet causing words to become "so elastic that they may mean the opposite of what they appear to mean" was precisely the goal of the 48-page memo, just released by the Obama Administration, which Bybee wrote for the Bush/Cheney White House authorizing the use of what any ordinary person, and indeed the US Criminal Code, would define as torture against captives held in Bagram, Abu Ghraib, Guantanamo and elsewhere.
The actual Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, incorporated in 1996 by act of Congress as a part of the US Criminal Code, Title 18, Sections 2340-2340A, is quite unambiguous in its proscription. As Bybee notes in his memo, the Convention Against Torture defines torture as:
"...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Now we know that what US CIA agents, military interrogators, and even prison guards charged with "softening up" detainees, were doing to captives included repeated waterboardings (over 100 times in the case of some captives), slamming into walls while leashed to a neck restraint, enforced sleeplessness for as long as 11 days at a time, subjection to prolonged periods of extreme heat or cold, attacks by dogs, being locked in a box with biting insects, etc. ad nauseum.
Yet Bybee, in his capacity as counsel to the president in the office of the Attorney General, went to great creative lengths to make the words in that act "elastic" to the point that they "lose their ordinary meaning."
For example, in his memo Bybee wrote:
"We...conclude that certain acts may be cruel, inhumane or degrading, but still not produce pain and suffering of the requisite intensity to fall within Sec. 2340A's proscription against torture."
Then, because he saw that that term "severe" in the statute was problematic, Bybee went out of his way to try to make it mean something more extreme. He found a legal case involving a hospital that was being sued for refusing to admit an emergency medical patient, concluding that severe pain would have to be pain "equivalent to (sic) intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death."
Obviously, when someone says they have a "severe headache" or tells the doctor that they have a "severe pain" in their lower back, they aren't talking about facing death, organ failure of impairment of bodily function. They are using the word in its "ordinary meaning" to communicate that they are hurting badly. But then Asst. Attorney General Bybee isn't interested in what Judge Bybee called "the ordinary meaning" of words. He's looking for weasel words. He's trying to get words to be "elastic," and to mean "the opposite of what they appear to mean."
But Bybee also recognized in the event that Bush or his subordinates were someday to be hauled before a court and prosecuted for war crimes, he would need to offer them a second line of defense, so, ever the good mob attorney, the future appellate court judge offered up this beauty:
"To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act."
What this means, writes Bybee, is that, "If the defendant [the government torturer] acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted with only general intent" but not "specific intent" to cause pain." Put another way, he writes, "As a theoretical matter therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent."
How's that for elastic? Let's imagine a killer who fires a gun at a victim, hitting him square between the eyes and killing him. He could offer up the Bybee Defense, arguing that when he pointed his gun towards the victim, at a range of 10 feet, he knew that death was "reasonably likely" to result from his actions, "but no more." Using Bybee's reasoning here, he should not be convicted, or even charged with first-degree murder, because he lacked "specific intent" to kill.
But Bybee, noting that a jury might not buy such a line of defense, offers up yet another rationale for torture not being torture. He writes, in the memo:
"Furthermore, a showing that an individual acted with a good faith belief that his conduct would not produce a result that the law prohibits negates specific intent."
Call this the Faith-Based No Torture Defense. According to FBNTD, if you don't believe you are torturing someone, you aren't torturing them. Here Bybee turns to case law with, not a torture case, but rather the example of a defendant in a mail fraud trial, who successfully argued that if he had a good faith belief that the material he was mailing was truthful, he wasn't guilty of mail fraud. But of course, torture isn't mail fraud, and the evidence of the pain and suffering being inflicted at the hands of the torturer is right there before his eyes, whatever he may "believe."
Let's face it. This word-twisting judge, sitting in his black robes in a court that ranks just below the US Supreme Court in importance, is a disgrace not just to the US court system, not just to the legal profession, but to the English language.
He should not only be impeached and removed from his post by Congress; he should be disbarred by fellow members of his legal profession and then prosecuted as a war criminal by his former employer, the US Dept. of Justice, for his role in authorizing and promoting the use of torture by US military and intelligence agency personnel. If convicted, he should be sentenced to a long term in jail, and while confined should be forced to write 100 times a day on a blackboard:
"The only thing we have to enforce our judgements is the power of our words. When these words lose their ordinary meaning-when they become so elastic that they may mean the opposite of what they appear to mean-we cede our own right to be taken seriously."
While Bybee himself may have never personally tortured anything but the English language, his eventual prosecution for war crimes could be facilitated by a little legal research he did in that same memo. For as Bybee noted in that memo, the USA PATRIOT Act, in addition to eviscerating much of the Bill of Rights, also amended Section 2340A of the US law prohibiting torture to include the offense of "conspiracy to commit torture"--and if Bybee's memo doesn't meet the definition of conspiracy, I don't know what the word conspiracy means.
Hey, I never thought I'd find myself commending the PATRIOT Act, but here's one little piece of it that we should not be trying to rescind.
- Posted in
23 Comments so far
Show AllObama basically signals nothing major on any front--a minor tweak, the same crew of jaded elites and lots of worn platitudes.
He will do his best to skate.
Obama is a man of low moral character when it comes to the rule of law.
Typical attorney. All they do is twist words in order to find ways to get around the law.
Yesterday on CNN, former astronaut, Edgar Mitchell said that aliens from outer space visit earth. That they are here and have nothing but evil intent for humankind is given support by the mere existence of Judge Jay Bybee.
Mitchell described the ALIENS as usually taking on the appearance of white obese baldheaded bespectled, generally grub like USA men, who have never experienced physical adversity but immensely enjoy inflicting pain to and exploding human beings.
thank you, mr. lindorff, for continuing to beat the drum. surely, the pounding will begin soon. rarely does a news story, released on a thursday or friday, gain momentum over the week-end. it's nice to see this one going strong. perhaps we're seeing history unfold before our eyes. after the last eight years, it would indeed be refreshing. and karma doing what it's supposed to be doing.
granted, obama needs to have a bit placed in his mouth and shown direction by the american people, but consider the fact that he's the one who threw this giant bread crumb our way, and regardless of the fact that he's bailing out his billionaire buddies and wants to trim a mere hundred mil out of the budget (a minuscule bread crumb), this unfolding event is happening because of a bit of brilliant gamesmanship. give him some credit. not much, but some.
After I read your apologies, I recalled that it was said that Hitler was fond of dogs.
Unless it is necessary for Obama to channel the outrage growing over his shrugging this off by finding a sacrificial lamb to diffuse the momentum about this and all other issues Obama has proved to be channelling Bush... Don't expect anything.
Why should we have to put all our effort, energy and focus into forcing Obama to do the right thing on every issue? Does he not know any better? After all, it isn't like any of his appointees reflect American opinion on the issues, much less his base. He pays more attention to compromising with the totally discredited Right, while he ignores us or with a voice of irritation, claims he "gets it".
What's it going to take for you to get it. We are just another special interest group to Obama that he lectures to about shared responsibility when it comes to social security "entitlements".
Obama and Emmanuel have said fairly clearly that they are not going to investigate or prosecute any of the conspirators. Also, the Obama administration has said that even if charges are brought against them by another country, they will provide full legal defense for them.
Meanwhile, they will continues to investigate the morally courageous whistleblowers like Thomas Tamm, Mark Klein, and several brave military personnel - all of which have faced financial ruin defending themselves and total loss of any hope for any future gainful employment.
The only two possibilities at this point are:
1. Of course, the US never signed the ICC treaty. But an international tribunal could still be conviened in the manner of Milsosevc and Karajic. But this is very unlikely; so,
2. A few courageous individiuals need to find a way to bring justice to the torture conspirators.
Up here in Canada, the law allows for private prosecution a criminal offenses if the Crown (ie the Attorney General, government, DA, etc) refuses to act and there is sufficient evidence to proceed.
the private prosecutor controls the proceedings from start to finish unless the Attorney General intervenes. In indictable matters, a private prosecutor may conduct the trial, including the preliminary inquiry. However, the private prosecutor requires a judge's consent under subsection 574(3) of the Code to prefer an indictment[ie felony].
http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch26.html
is there no parallel in the US?
leftist,
having recently had the greatest of pleasures in being away from this country for a month, upon my return here i find myself becoming more and more pissed with each passing day. your number 2 suggestion is spot on and perhaps is my new calling in life.
I agree with you and leftist on point number two. A lot of people do. But we speak about it in hushed tones in undisclosed locations, for obvious reasons. Perhaps one day justice will come.
-Let's imagine a killer who fires a gun at a victim, hitting him square between the eyes and killing him. He could offer up the Bybee Defense, arguing that when he pointed his gun towards the victim, at a range of 10 feet, he knew that death was "reasonably likely" to result from his actions, "but no more."
A very effective analogy Mr Lindorff, and one of your best articles.
Torturing Judge Bybee: Make Him Eat His Own Words
I can think of something else Bybee should be eating in copious quantities.
"Hey, I never thought I'd find myself commending the PATRIOT Act, but here's one little piece of it that we should not be trying to rescind."
Mr. Lindorff and I disagree on some things, but here he is absolutely correct. Good article and good conclusion.
And yes Mr. Lindorff, I didn't think I'd see you defending any part of the Patriot act either, or me....but darned if we aren't!
I think we will find that the Patriot Act does not apply to high government officials. The wording is so dense and includes so may references to other laws amended by the Patriot Act that it is incredibly difficult to analyze. I'm serious when I say it wouldn't surprise me to find that it exempts congress, the courts and the executive branch.
-it is incredibly difficult to analyze.
I'm sure the US justice dept will decypher it, just as the statute of limitations lets the criminals off the hook for many of these crimes.
From the Congressional Report on the use of Toture at Abu Ghraib:
The Geneva Convention Relative to the Treatment of Prisoners of War (GPW)6
Article 17, paragraph 4 provides the general rule for interrogation of prisoners of war:
No physical or mental torture, nor any other form of coercion, may be inflicted
on prisoners of war to secure from them information of any kind whatever.
Prisoners of war who refuse to answer may not be threatened, insulted, or
exposed to unpleasant or disadvantageous treatment of any kind.
This language replaced a provision in the 1929 Geneva Convention that stated
“[n]o pressure shall be exerted on prisoners to obtain information regarding the
situation in their armed forces or their country.”7
According to the ICRC Commentary,8 the many violations that occurred during World War II
led drafters of the 1949 Convention to expand the provision to cover “information of any kind
whatever,” and by “prohibiting not only ‘coercion’ but also ‘physical or mental
(iii) it must aim at obtaining information or a confession, or at punishing,
intimidating, humiliating or coercing the victim or a third person, or at
discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict. . . .28
Physical Torture. The U.S. Army Field Manual (FM) 34-52, Intelligence
Interrogation29 (“FM 34-52”) lists the following as examples of physical torture:
electric shock; infliction of pain through chemicals or bondage (other than legitimate
use of restraints to prevent escape); forcing an individual to stand, sit, or kneel in
abnormal positions for prolonged periods of time; food deprivation; and any form of
beating.30
The International Military Tribunal for the Far East (IMTFE) found that
Japanese soldiers had used the following forms of torture: water treatment, burning,
electric shocks, the knee spread, suspension, kneeling on sharp instruments and
flogging.31 The U.S. District Court for the District of Columbia found that U.S.
POWs during the First Gulf War were tortured in Iraq:
The torture inflicted included severe beatings, mock executions, threatened
castration, and threatened dismemberment. The POWs were systematically
starved, denied sleep, and exposed to freezing cold. They were denied medical
care and their existing injuries were intentionally aggravated. They were
shocked with electrical devices and confined in dark, filthy conditions exposing
them to contagion and infection. The POWs suffered serious physical injuries,
including broken bones, perforated eardrums, nerve damage, infections, nausea,
severe weight loss, massive bruises, and other injuries.32
"...repeated waterboardings (over 100 times in the case of some captives), slamming into walls while leashed to a neck restraint, enforced sleeplessness for as long as 11 days at a time, subjection to prolonged periods of extreme heat or cold, attacks by dogs, being locked in a box with biting insects, etc..."
Just frat boys letting off some steam, man. Good times, you know, cause everyone was, like, so upset after 911 and stuff...
"Torture" the noun and "torture" the verb are radically different. Any very unpleasant experience, such as pain, fear, disappointment, loss of function, or lack of sleep, may be torture. Billions of people experience torture as a result of disease or accident without there being a torturer. I don't think there's much to argue about concerning severity or duration. Most of us know what torture is.
"Torture" the verb has several elements. For a person P to be a torturer, P must inflict pain that can be described as torture (the noun) upon the one who experiences torture (V), but P's act cannot be what the criminal law describes as self defense or defense of another, or a battlefield action against a perceived enemy. This is because V must be in custody or otherwise disabled from attacking P or others before the act can be described as torture. P must realize that he's causing the pain, and P must be willing to cause the pain despite this awareness. Also, P must lack, objectively, sufficient justification for inflicting the pain.
It's this notion of justification that defies easy analysis. I think there could be justification if P knows the infliction of the pain (including possibly torture (noun)) will result in obtaining information or causing behavior that will allow avoiding great harm to others. It must be objectively likely that something morally and legally desirable (such as a confession or other behavior) will result from the infliction of the pain. To be justified, the pain P inflicts must be in proportion to the threat being addressed and its immediacy. Without justification, P's only possible motive for inflicting the pain is enjoyment in doing so, which everyone agrees is immoral and should be illegal.
Applying this definition to various techniques such as waterboarding, I would say whether it's torture depends on the justification. A terrorist captured after a terrorist attack shouldn't be waterboarded unless there's a threat of another attack and information from the terrorist would help to counteract the threat. On the other hand, even if no attack had occurred, if interrogators had a reasonable belief that a terrorist plot was underway and infliction of pain on someone would lead to information that could allow defeating the plot, there would be a justification for the infliction of severe pain on the someone having the information. This situation must, of course, be distinguished from criminal interrogations.
The next important concept in this discussion is the necessity of universal rules regarding justification for torture (noun). The U.S. and all other nations should refrain from any of the inflictions of pain commonly believed to be torture (verb) unless and until a sophisticated legal analysis and enforcement mechanism for justification of such infliction of pain can be deployed in international law. We've suffered a terrible loss in the propaganda war because of Guantanamo Bay and other unilateral Bush administration policies.
For a couple of reasons, the war on terror won't be appreciably hindered by the U.S. forbidding the use of commonly accepted means of torture pending adoption of universally accepted norms for justification. First, experience shows that torture seldom results in useful information or anything else of value. Second, if interrogators or guards, in the U.S. or anywhere else, thought they had a reasonable chance of preventing great loss of life if they used one or more of the techniques universally identified as torture, they would proceed to use them despite laws against them. I can't imagine that an interrogator P, having rationally determined that death of many persons, or mass destruction, could be prevented by inflicting pain on a prisoner, would choose to allow such tragedy to occur rather than expose himself to prosecution. The threat of prosecution would insure that P would employ extreme measures only if P was absolutely sure it was the only way to avert intolerable injury and destruction.
Obama will most likely try, now that his hand is forced, the old political trick of whitewash. He'll appoint a political stooge prosecutor to conduct a faux investigation and conclude that there is not enough evidence to prosecute.
I agree. When he trys to appoint Kissinger like Bush tried for the 9/11 whitewash, it will be the signal for the criminals to relax again.
Thank you David Lindorff for describing just how twisted this Jay Bybee is and of course he should loose his law lisence.
He sits on the 9th circuit court which is the most important court right under the Supreme Court and could even get appointed to the Supreme except for all of us spreading the word about how despicable he is.
Pass this article around and around until the guy loses his license. Report him to the professional ethics.