[Ppnews] Jay Bybee's Conspiracy to Torture

[Political Prisoner News]

http://www.counterpunch.org/lindorff04212009.html
April 21, 2009


Make the Judge Eat His Own Words


Jay Bybee's Conspiracy to Torture

By DAVE LINDORFF

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 
<http://www.tomjoad.org/bybeememo.htm>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 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.).

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 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 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.”

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.

Dave Lindorff is a Philadelphia-based journalist 
and columnist. His latest book is 
“<http://www.amazon.com/exec/obidos/ASIN/031237254X/counterpunchmaga>The 
Case for Impeachment” (St. Martin’s Press, 2006 
and now available in paperback). He can be 
reached at <mailto:dlindorff at mindspring.com>dlindorff at mindspring.com




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