Wednesday, May 6, 2009

Commentary: The Justice Department’s Torture Hypocrisy



WASHINGTON, May 6, 2009 -- As part of the blog's ongoing coverage of national security issues, I'd like to bring attention to the Justice Department’s hypocrisy concerning torture.

Columnist Andrew C. McCarthy says it is a case where the Obama Justice Department investigates Bush lawyers’ torture analysis one day, then cites it favorably the next.

Let me start by telling you about McCarthy.

Andrew C. McCarthy is a former Assistant United States Attorney for the Southern District of New York.

He was most notable for leading the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombing and planning a series of attacks against New York City landmarks.

McCarthy also contributed to the prosecutions of terrorists who bombed U.S. embassies in Kenya and Tanzania, resigning from the Justice Department in 2003.

McCarthy is currently a senior fellow at the Foundation for Defense of Democracies, serving as the director of the FDD's Center for Law and Counterterrorism. He has served as an attorney for Rudy Giuliani, and is also a conservative opinion columnist who writes for National Review and Commentary.

In an article published on the National Review Web site today, McCarthy says even as the Justice Department considers the discipline of former Bush administration lawyers over their legal analysis drafted to justify harsh interrogation techniques, the Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims.

Paraphrased in part, I have included below pertinent segments of McCarthy's article:
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 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.

The Justice Department says 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.

This is precisely the theory that Bush lawyers 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.
McCarthy concludes that given that the Bush DOJ memos in question display a careful 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.

Source: The Justice Department’s Torture Hypocrisy

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Anonymous Tom Shardlow said...

Andrew McCarthy may be an attorney, but he does not understand the concept of "specific intent" or he is being intentionally duplicitous. First, there is a world of difference between a police officer who shoots a criminal who is trying to kill him (although death or great pain is very likely to result), and a police officer who inflicts great pain or death on a prisoner in an attempt to extract a confession. In neither case is the officer motivated by a desire to see the suspect in pain or dead. However, in the second case the officer clearly has the "specific intent" to inflict the pain, whether or not the pain is being inflicted for sadistic purposes, and that is all that is required for "specific intent" to be present. Therefore, there is no inconsistency between the Obama Justice Department arguing that torture is a specific intent crime, and the Bybee/Yoo misuse of the concept to argue that a person is not guilty of torture (no matter how extreme or extended the pain is inflicted)if the person inflicting the pain is motivated by a desire to obtain information.

More important is the second error in McCarthy's reasoning. Even assuming that the Obama Justice department accepted one part of the Bybee/Yoo memo, that hardly means that they have to accept all of it. The principal criticism of the Bybee/Yoo memo has nothing to do with the concept of "specific intent," but rather the approval of the idea that the living hell resulting from unlimited application of the techniques approved therein somehow did not result in torture. The Bybee/Yoo memo approves of the government keeping an individual naked, throwing ice cold water on him, keeping him in a cold room to the point of near hypothermia, keeping him awake for up to 11 days, waterboarding him to the extent that he might die from "water poisoning" if electrolytes were not added to the water, and choking the individual to the point that a Dr. needed to be present because an emergency tracheotomy might be necessary. Whether or not you approve of the idea of torturing believed Al Quaida terrorists or not, what the Bybee/Yoo memo approved was torture in anybody's book. And, we would sure call it torture if some other government or a terrorist organization used the same techniques in the same manner in order to extract information from one of our soldiers. Regardless of whether you agree with my analysis, the Justice Department's very unsurprising position that torture is a specific intent crime has nothing to do with the particular techniques (and more important, combination of techniques) approved in the Bybee/Yoo memo, and therefore cannot be said to be hypocritical. Oh, and by the way, the Bybee/Yoo memo was disowned by the Bush Justice Department before Obama was even elected to the Senate.

7:06 PM EDT  
Anonymous MoJo said...

Your premise is flawed from your first sentence, as Mr. McCarthy is more than just an attorney, he was the Assistant United States Attorney for Southern District of New York. He prosecuted and won convictions against the terrorist known as the Blind Sheik and others.

I believe the argument McCarthy makes can be simplified to this: the liberals in the Obama administration think they should be able to have it both ways. In this case, they condemn harsh interrogation on one hand, then argue that harsh interrogation is OK on the other.

Minus the rhetorical digression, it is as simple as that... hypocrisy.

9:13 PM EDT  

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