Has the Obama Justice Department Adopted the Bybee/Yoo Interpretation of the Torture Statute?

Yes it has! At least according to Andrew McCarthy, who argues in this National Review article that the Obama administration’s brief in a case seeking to uphold its decision to deport Demjanjuk adopted the same narrow interpretation of the U.S. torture statute’s requirement of specific intent as the much-vilified Bybee/Yoo memos.

….[E]ven 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.

I am sympathetic to Deborah’s criticsm of McCarthy’s recent somewhat over-the-top letter rejecting an offer to participate in deliberations on detention policy with the Justice Department. But his legal analysis seems sound here. McCarthy is right to point out that the Yoo/Bybee memos adopted a really narrow view of specific intent under the torture statute.  This narrow view, which the Obama Justice Department appears to have adopted, was also adopted by the Third Circuit in Pierre v. Mukasey.

Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.

Still, McCarthy is right that it is very odd, if not outright hypocritical, for Obama and Holder to suggest criminal prosecutions are appropriate or even ethical charges for, at least in part, adopting interpretations of the torture statute endorsed by ten judges on the Third Circuit as well as their own Justice Department.  (By the way, John Yoo, at least, will definitely avoid any ethics reprimands).

All of this makes me think that, at least in the U.S, the criminal case against the Bybee/Yoo memos is very, very weak and even the ethics complaints are probably going nowhere (as Geoffrey Hazard seems to agree). Everyone should simply admit this is simply a disagreement (a very serious disagreement) about the legal interpretation of a statute.  In the old days (pre-2001), we used to have disagreements about questions of statutory interpretation. Today, though, we prefer to accuse people of war crimes.  I like the good old days, but then again people often call me a conservative….