Bush Brings Medieval Justice to America

The Bush administration has been shockingly clear regarding its intentions to medievalize American justice.  The memos vindicating torture written by high-ranking Bush administration officials should have woken up all Americans to the rising peril.  Unfortunately, the memos have gotten far less attention than they deserve.

This article, posted today by the Future of Freedom Foundation, ran in the November issue of Freedom Daily.

The Bush Torture Memos

by James Bovard

President Bush is proposing to medievalize the American legal code by permitting the use of coerced confessions in judicial proceedings. This is one of the most stunning proposals in U.S. political life since Franklin Roosevelt banned private ownership of gold in 1933. It is vital for Americans to understand the thinking that led the government to this effort to legalize barbaric treatment.

After 9/11, many Bush administration officials seemed determined to use any and every means to bludgeon people suspected of terrorism or terrorist intent. Two memos — one from the Justice Department and the other from the Pentagon — illustrate how the administration persuaded itself that it was entitled to do evil in the name of the greater good.

In June 2004, Americans learned of a memo written by the Justice Department Office of Legal Counsel at the request of White House Counsel Alberto Gonzales. The August 1, 2002, memo, which redefined U.S. torture policy, became known as the Bybee memo, after Jay Bybee, the head of the Office of Legal Counsel. Deputy Assistant Attorney General John Yoo was coauthor of the memo. The memo was titled “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A” (the U.S. anti-torture act) and was “akin to a binding legal opinion on government policy on interrogations.”

Rather than a strict interpretation of the law, the Bybee memo was a Torturers’ Emancipation Proclamation. Violating the anti-torture act carries a penalty as high as 20 years in prison. If the victim dies, the torturer can receive a death sentence. However, the Justice Department revealed that overzealous interrogators had little or nothing to fear from the law.

The memo began by largely redefining torture out of existence. It then explained why even if someone died during torture, the torturer might not be guilty if he felt the torture was necessary to prevent some worse evil. The memo concluded by revealing that the president has the right to order torture because he is above the law, at least during wartime (even if Congress has not declared war).

Justifying torture

The Bush-appointed lawyers showed that interrogators can easily be innocent of an intent to torture:

Because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective…. If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent. As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent…. Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.

The memo offered the following illustration: “In the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead.” Mailing dubious herbal medicine brochures thus helped set the standard for government employees who club prisoners to death. The memo assured would-be torturers and torture supervisors, “A good faith belief need not be a reasonable one.”

The memo stressed that mere garden-variety torment posed no legal problem for interrogators.

For purely mental pain or suffering to amount to torture … it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.

And it is easy to dodge the charge of mental torture, since

if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature.
Thus, as long as a torturer subscribes to respectable medical journals, he can immunize himself.

The memo recited the damage of 9/11 in order to justify the presumption that torture would prevent similar carnage:

Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States.

But the Justice Department’s top lawyers offered no evidence of the efficacy of torture (which both the FBI and U.S. military experts dispute).

The Justice Department stressed that even intentionally killing people during an interrogation might be okay:

The necessity defense may prove especially relevant in the current circumstances.

First, the defense is not limited to certain types of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is greater (i.e., preventing more deaths).

Second, it must actually be the defendant’s intention to avoid the greater harm….

Third, if the defendant reasonably believed that the lesser harm was necessary, even if, unknown to him, it was not, he may still avail himself of the defense….

Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

The Justice Department preemptively exonerated U.S. government officials who violate the Anti-Torture Act: “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate Section 2340A, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network.” The Justice Department did not explain why preventing a catastrophic attack is the only reason why a suspect might be maimed during interrogation.

The memo’s most revolutionary revelation was that federal criminal law does not apply to the president:

Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign…. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack…. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.
The memo stressed the uniqueness of the post–9/11 world:

The situation in which these issues arise is unprecedented in recent American history…. These attacks were aimed at critical government buildings in the Nation’s capital and landmark buildings in its financial center.

But President James Madison did not announce that the U.S. government was obliged to start torturing people after the British burned down Washington in 1814.

The memo’s absolutism would have brought a smile to despots everywhere:

As the Supreme Court has recognized … the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces. [We] will not read a criminal statute as infringing on the President’s ultimate authority in these areas.

Thus, apparently the “commander in chief” label automatically trumps laws enacted by Congress and, for that matter, the Constitution.

The Pentagon’s torture memo

Another memo that leaked out in June 2004 was the “Pentagon’s Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations.” This March 6, 2003, report — drawing heavily on the Bybee memo — helped establish interrogation policies for U.S. military personnel in Iraq, Afghanistan, Guantanamo Bay, and elsewhere.

The Pentagon report encouraged government officials to unchain themselves from the statute book: “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” The report stressed that “the necessity defense can justify the intentional killing of one person to save two others.” Thus, invoking the possibility of another 9/11 can automatically banish any concerns about collateral damage during interrogations.

Like the Justice Department, the Pentagon brandished the “medical journal subscription” exemption to the Anti-Torture Act: “A defendant could show that he acted in good faith by taking such steps as surveying professional literature.”

The Pentagon insisted that unless Congress specifies in a law that the president will be banned from committing specific crimes, he is presumed to be exempt from any limitation during wartime:

In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.
The Pentagon report noted, “As this authority [to torture] is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing.”

In other words, prudent torturers will possess a presidential authorization to immunize them for the pain they inflict.

The Pentagon updated American military morality, explaining why the principles of the Nuremberg war crimes trials may not apply if soldiers claim that they were “following orders.”

Interrogators who were ordered to use force would

certainly raise the defense of obedience to orders. The question then becomes one of degree. While this may be a successful defense to simple assaults or batteries, it would unlikely be as successful to more serious charges such as maiming, manslaughter, and maiming [sic]. Within the middle of the spectrum lay those offenses for which the effectiveness of this defense becomes less clear. Those offenses would include conduct unbecoming an officer, reckless endangerment, cruelty, and negligent homicide.

The fact that the Bush team placed “negligent homicide” in the “middle of the spectrum” of offenses hints at the rigor of interrogations under the new guidelines.

The report stressed that “the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” But this is immunity-by-tautology — since the Justice Department’s redefinition of torture excludes almost everything except killing and permanently maiming.

Every argument made in the Bybee and Pentagon memo against the Anti-Torture Act’s not limiting the president’s power also applies to the War Crimes Act. Dean Harold Koh of Yale Law School observed,  “If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.”

Americans must pay closer attention to the words of their rulers. These memos trumpet the Bush administration’s determination to be restrained by no law or by any accepted standard of decency. Americans cannot say that they were not warned about their government’s descent.

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.


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12 Responses to Bush Brings Medieval Justice to America

  1. Scott February 6, 2007 at 1:01 am #

    Why do you hate freedom so much, Jim?

  2. americanintifada February 6, 2007 at 2:12 am #

    “If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.”

    All of this power in the hands of a man whose facial expression displays the look of someone who is a few bricks shy of a full load. This should make us all proud to be Good Little Amerikkkans. Heil Bush!

  3. Adam S. February 7, 2007 at 12:21 pm #

    This whole article echoes perfectly why John C. Calhoun demanded that the Presidency be divided in two. He argued quite presciently that investing both domestic and foreign powers in a single executive would lead to nothing but interventionism. One executive should handle exclusively foreign matters and one domestic. We need something serious to happen with the Presidency because it’s bordering on being a 4-year dictatorship.

  4. Adam S. February 7, 2007 at 12:23 pm #

    Always remember what Winston Churchill said, “It’s not a lie. It’s a terminological inexactitude”

  5. Aleithia February 7, 2007 at 1:43 pm #

    Eye-opening article. “Intentional homicide” is what the rest of us call outright MURDER. “Pain that results in intentional homicide” is what the rest of us call “torturing to death.” As for the term “Commander in Chief,” that basically means that we live under a dictatorship rather than a presidency.

    Seems like we need to bring democracy, freedom, and fair elections to the American people. Forget anywhere else.

    Keep up your great writing.

  6. Jim February 7, 2007 at 1:48 pm #

    Aleithia – thanks for the kind words.

    I’m not sure if it would be legal to bring fair elections to America – the Federal Elections Commission might not approve.

  7. Jim February 7, 2007 at 3:21 pm #

    Adam- but even Calhoun’s system would not work if both of the “presidents” were above the law.

    That is the problem the US system of government has had for a long time.

  8. Jim February 9, 2007 at 4:28 pm #

    Here’s an email I received on this article:

    Oh cripes! James Bovard MOONBAT loony cries “” Oh help, all my lovable terrorist brothers are going to get tortured – bring them to me instead and let me kiss them before they slice my tongue and behead me!! Please?! And oh by the way, I remember when KLINTOON said that Americans had “too many personal freedoms” and we should give up some of our freedoms for the common good. But that’s OK – we MOONBAT loonies all thought that was wonderful. Besides he would have kissed and loved the terrorists too – just like me. Allah Achbar!!””
    Townhall.com Audio Player Mark Steyn music to torture Gitmo detainees by..

    [here is the link to the Townhall site –

    Charming to hear a prominent conservative columnist joking about hooking electrodes to testicles.

    I quoted the Clinton line on “too many freedoms” in both Freedom in Chains (1999) and Attention Deficit Democracy (2006), and maybe Feeling Your Pain (2006) as well.

  9. Joy February 9, 2007 at 4:52 pm #

    Boward is off his mind and obviously a terrorist lover.

  10. Jim February 9, 2007 at 5:18 pm #

    A coincidence – or do true-blue Bush supporters have trouble spelling French names?

  11. Jim February 9, 2007 at 11:59 pm #

    I received another email from JWillar*****, who sent me the “Oh Cripes!” email I posted earlier. His subject line said: “Copy and Paste This Too!” I have pasted part of his missive below – it was 42K long and I fear that posting the entire thing could overheat the WordPress blog software.
    These right-thinkers seem to think that all liberals are alike; thus, since they have labeled me liberal, I stand refuted. I would be curious to see how they reconciled the writing I did for conservative publications in the ’80s and ’90s with their notion that liberals are born & remain clueless…

    My hunch is that if these folks perused some excerpts of Lost Rights: The Destruction of American Liberty (St. Martin’s, 1994), they would pound the table and insist that the passages proved my demonology. But then, if they saw the book’s discussion on the guns and the Second Amendment, ….

    Or perhaps not. Perhaps the Bush devotees would be rejoicing at the FBI’s final assault at Waco as loudly as did many people in the Clinton White House and the Washington press corps. But only if a Republican had ordered the gassing of the children.

    The Pathology of Liberalism

    Joan Swirsky

    Liberal pathology

    I suspect that at the core of liberal “thinking” is the same kind of pathology that characterizes other mental disorders, i.e., a glitch in the brain that produces “feelings” and behavior over which liberals have no control.

    For instance, liberals are uniformly glum, not only in their grim demeanors and persistent anger, but also in their outlooks. Even in the flush of their midterm victory, they could hardly conceal their endemic rage, in spite of a brief moment of toothy, appliquéd smiles.

    This is because their worldview is uniformly negative. When things are good, they see only the bad and invoke the Misery Index cited routinely by Jimmy Carter and resurrected by the dour wannabe president John Kerry. When things could be better, they see only that things could be worse. When their theories are refuted by hard fact, they are unable to process the true from the untrue because their feelings tell them otherwise. For instance:

    In an unprecedented stellar economy – with the GDP, employment, housing sales, and consumer confidence up, and inflation, the trade deficit, and crude oil down – liberals see only the “threat” of recession.
    In measurable improvement in education, liberals see only “too much testing..”
    In the face of 3,000 lives being exterminated by Islamic terrorists on September 11, 2001, liberals see a non-existent threat.
    In the Iraq war, which has liberated 25 million people, liberals see, to quote House Speaker Nancy Pelosi, “not a war but a situation” and a “catastrophe.”
    Worse, the liberals among us see that all of our country’s problems are the fault of, yes, America!

    Liberals are like children

    Liberals, like children, live in a world of utopian dreaminess, clinging to a narrow, circumscribed reality and believing that if everyone would just be nice to each other – let’s talk, let’s chat – all the noisy death threats and pesky suicide bombings would go away, and all those grumpy grownups in the current administration would see the light.

    And so they do what children do when they’re mad at grownups. They call names..

    Who but an out-of-control child – who didn’t know any better – would compare our heroic fighting troops to Nazis? Liberal Senator Dick Durbin (D-IL) did.
    Who but a bully of a child would say that the head of his household (in this case his country) was a liar? Liberal Senator Ted Kennedy (D-MA) did.
    Who but a spoiled “princess” would call the leader of her country a failure, a fraud, and incompetent? Liberal House Speaker Nancy Pelosi (D-CA) did.
    Who but a snobby and vacuous little brat would badmouth the president on foreign soil while our troops were in harm’s way? Liberal Senator John Kerry (D-MA) did, as did liberal former presidents Jimmy Carter and Bill Clinton.
    And who but a jealous tomboy would insist, again in a time of war, that the Commander in Chief is the worst president in our nation’s history? Liberal Senator Hillary Clinton (D-NY) has done just that.

    All of these children – er, politicians – have gone to great lengths to undermine President Bush, often in foreign countries and always in contradiction to the unspoken but historically honored rule to support a president in time of war – or at least to refrain from insult.

    A rage that knows no bounds

    Children take things personally. “My father is bigger (stronger, smarter) than your father” is just about intolerable to the average child. “Is not!” “Is too!” is an exchange that inevitably results in either tears or fists. In 2000, when George W. Bush ascended to the presidency, the initial despair of liberals quickly morphed into childlike, irrational anger, which has obsessed them for the past six years.

    Not only have they called names, spewed insults and stamped their feet, but they’ve also lined up like-minded friends in the liberal media and leftwing think tanks to do the same. Much worse, they’ve aligned themselves with America’s mortal enemies.

    According to Vasko Kohlmayer in World Defense Review,“the affection in which [liberals] are held by our foes is neither unjustified nor surprising. They have more than earned it by systematically subverting this country’s war effort while simultaneously proffering assistance to those who have pledged to destroy us.” Kohlmayer lists some highlights of liberal treachery:

    · They have tried to prevent us from listening in on terrorists’ phone calls
    · They have sought to stop us from properly interrogating captured terrorists
    · They have tried to stop us from monitoring terrorists’ financial transactions
    · They have revealed the existence of secret national security programs
    · They have opposed vital components of the Patriot Act
    · They have sought to confer unmerited legal rights on terrorists
    · They have opposed profiling to identify the terrorists in our midst
    · They have impugned and demeaned our military
    · They have insinuated that the president is a war criminal
    · They have forced the resignation of a committed defense secretary
    · They have repeatedly tried to de-legitimize our war effort
    · They want to quit the battlefield in the midst of war.

    If nothing else proves the rigidity – indeed the pathology – of the liberal brain, it is what Kohlmayer says of liberals today: “Almost all of the current democratic leadership was actively involved in [the Vietnam anti-war] effort. Bill and Hilary Clinton, John Kerry, Ted Kennedy, Howard Dean, Chuck Schumer, Dick Durbin and Nancy Pelosi were all in one way or another personally engaged in the anti-war movement. And when at last it bore its disastrous fruit, they gloated and danced in the streets. Exhilarated and jubilant, they deemed America’s disgrace their finest hour. In their skewed world, America’s defeat came to represent their personal triumph.”

    Fathoming liberal rage

    To understand the left’s treasonous rage, it is important to understand that the most cherished value in the life of children (read liberals) is to be “liked” by their peers, a theory that Judith Rich Harris has exhaustively documented in her best-selling and revolutionary book, The Nurture Assumption.

    To be liked – according to the evangelical religion of liberalism – is not to engage in conflict, not to fight, not to judge, After all, if you fight with anyone, including Islamic terrorists, they won’t like you. And if you judge them as savages, murderers, enemies of democracy, they will fight you. So don’t judge them and they won’t fight you and everything will be hunky dory. Such are the fantastical fantasies of children (read liberals).

    They are fantasies that flourish, says writer Evan Sayet, because liberals are “wedded to the childish philosophy of ‘multiculturalism’ … the fantasy that all cultures are equally good and equally right. It is why liberals “believe we should ‘celebrate diversity,’ as if all differences – say freedom of religion and massacring all infidels – are equally worthy of celebration.”

    It is also why liberals, like children, are driven so compulsively by emotion that they simply don’t have the ability to apply rational thought when it comes to George W. Bush. To them, he is still the stronger father to whom they continue to insist: “Is not!”

    Rage trumps rationality

    The reason why liberals have remained so intractably unhinged about President Bush is not because of their ideological differences with his conservatism. It is because of their collective inadequate egos. This is no surprise because children have “developing” egos, not fully-fledged senses of themselves, their places in the world, and their worth. Children are wildly egocentric, seeing themselves as the center of the universe and having no appreciation of the vast world that lies outside their limited awareness. In fact, they echo a saying from the Talmud: “We do not see things as they are; we see things as we are.”

    In what he calls the psychopathology of the liberal mind, Lyle H. Rossiter, Jr., M.D., a psychiatrist and the author of The Liberal Mind: The Psychological Causes of Political Madness,” says:
    ….[predictable quote follows]


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