Justice Department's Torture Hypocrisy

Andrew McCarthy pens an illuminating expose of Obama's Justice Department's hypocrisy on the torture issue.

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.]