Torturing Judge Bybee: Make Him Eat His Own Words

Published on Tuesday, April 21, 2009 by CommonDreams.org

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 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 meaning-when they become so elastic that they may mean the opposite of what they appear to mean-we 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 black 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 meaning-when they become so elastic that they may mean the opposite of what they appear to mean-we 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. He is author of Marketplace Medicine: The Rise of the For-Profit Hospital Chains (BantamBooks, 1992), and his latest book "The Case for Impeachment" (St. Martin's Press, 2006). His work is available at www.thiscantbehappening.net