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OpEdNews Op Eds    H2'ed 4/20/09

Torturing Judge Bybee: Make Him Eat His Own Words

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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
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

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

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.”

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Dave Lindorff, winner of a 2019 "Izzy" Award for Outstanding Independent Journalism from the Park Center for Independent Media in Ithaca, is a founding member of the collectively-owned, journalist-run online newspaper (more...)

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