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<a href="http://www.counterpunch.org/lindorff04212009.html" eudora="autourl">
http://www.counterpunch.org/lindorff04212009.html<br>
</a></font><font face="Verdana" size=2 color="#990000">April 21,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Make the Judge
Eat His Own Words <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">Jay
Bybee's Conspiracy to Torture
</b></font></h1><font face="Times New Roman, Times" size=4>By DAVE
LINDORFF <br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>f 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 href="http://www.tomjoad.org/bybeememo.htm">a key
memo</a> 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.<br><br>
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: <br><br>
</font>
<dl>
<dd>“The only thing we have to enforce our judgements is the power of our
words. When these words lose their ordinary meaningwhen they become so
elastic that they may mean the opposite of what they appear to meanwe
cede our own right to be taken seriously.” (Amalgamated Transit
Union Local 1309 v. Laidlaw Transit Services, Inc.</i>). <br><br>
</dl>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.<br><br>
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:<br><br>
<dl>
<dd>“…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. “<br><br>
</dl>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.
<br><br>
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.”<br><br>
For example, in his memo Bybee wrote:<br><br>
<dl>
<dd>“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.”<br><br>
</dl>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.”<br><br>
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.”<br><br>
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:<br><br>
<dl>
<dd>“</i>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.”<br><br>
</dl>What this means, writes Bybee, is that:<br><br>
<dl>
<dd> “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.”<br><br>
</dl>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.<br><br>
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:<br><br>
<dl>
<dd>“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.”<br><br>
</dl>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.”<br><br>
Let’s face it. This word-twisting judge, sitting in his 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.<br><br>
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:<br><br>
<dl>
<dd>“The only thing we have to enforce our judgements is the power of our
words. When these words lose their ordinary meaningwhen they become so
elastic that they may mean the opposite of what they appear to meanwe
cede our own right to be taken seriously.”<br><br>
</dl>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.<br><br>
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.<br><br>
Dave Lindorff</b> is a Philadelphia-based journalist and columnist. His
latest book is
“<a href="http://www.amazon.com/exec/obidos/ASIN/031237254X/counterpunchmaga">
The Case for Impeachment</a>” (St. Martin’s Press, 2006 and now available
in paperback). He can be reached at
<a href="mailto:dlindorff@mindspring.com">dlindorff@mindspring.com</a><br>
<br>
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