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.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.
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.
Source: The Justice Department’s Torture Hypocrisy
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