05/18/2009 | Сергій Кабуд

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Andy McCarthy on DOJ, "Torture" and the Demjanjuk Contradiction
May 6, 2009



BEGIN TRANSCRIPT
RUSH: If you've seen this story and you've only read the headline or even if you've only read the New York Times story about it, or if you've only heard the Drive-By Media discussing the story, you do not know the half of it. I'm looking at the headline here. I thought I put it at the top of the stack, but I didn't. Well, now, where the hell did I put this? Yeah, here we go. I did put it back in the stack when I shouldn't have. New York Times today: "Charges Seen as Unlikely for Lawyers Over Interrogations." Now, we're supposed to cheer. But you don't even know the half of it. If you know the details, you still don't know the half of this. "An internal Justice Department inquiry--" read Eric Holder, "--into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

"The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said." We're talking here about John Yoo, Jay Bybee and Steven Bradbury. So we're supposed to go, "Oh, good, they're not going to prosecute," but they are seeking nevertheless to destroy the livelihoods of these lawyers by asking the state bar associations where these guys live to disbar them, but you still don't know the half of it. Do you know the name John Demjanjuk? Some people pronounce it John Demjanjuk. John Demjanjuk is 89 years old. He lives in Cleveland. He is accused of being a Nazi concentration camp guard, Ivan the Terrible. He was convicted in Israel, they threw the conviction out. He's been charged with being at Sobibor, Treblinka, a couple places. He's been living in Cleveland ever since the Israeli Supreme Court threw out the conviction.

He has been requested to be extradited by Germany, to be tried in Germany for the same crime. His objection -- now, follow me on this -- his lawyers, Demjanjuk's lawyers are saying to the Justice Department, (paraphrasing) "You cannot extradite John Demjanjuk to Germany, you cannot do it because he will be tortured." Eric Holder and the Justice Department have said to Germany and Demjanjuk, "Demjanjuk, you're wrong, because Germany is going to use the same techniques on you that were proposed by Bybee and Yoo and Bradbury to interrogate Al-Qaeda terrorists." In other words, the Justice Department is denying Demjanjuk's requests to not be extradited because he will not be tortured, while saying that he will not be tortured, they are advocating that these three Bush lawyers be disbarred because they engaged in torture. This is despicable. This is not about Demjanjuk. I'm not arguing whether Demjanjuk is innocent or guilty, it doesn't matter to me. But Demjanjuk's argument is he shouldn't be extradited because he's going to be tortured. Our Justice Department says, no, it's not torture what they're going to do to you. They're going to follow the same guidelines written by Bush lawyers for detainees at Guantanamo Bay.

So that's not torture. Yet the Justice Department, Eric Holder, says those three guys, Yoo, Bradbury and Bybee, did write memos advocating and defining torture, and they want 'em punished for it. Now, you're hearing me say this, it makes no sense. Rush, it makes no sense! I know it makes no sense. It makes no sense if you're gonna apply logic here. You've got to think in terms of authoritarian tyrants to understand it. One more time. John Demjanjuk, Germany wants to try him for war crimes in World War II at concentration camps. Demjanjuk's lawyers say to the Justice Department, "Please don't extradite him, he's going to be tortured there." Our Justice Department says to Demjanjuk's lawyers, "No, he won't be tortured, they're just going to use the same procedures outlined by Jay Bybee, John Yoo and Bradbury that we used on Al-Qaeda prisons at Guantanamo Bay." They say that on Monday. Then on Wednesday they release a story to the New York Times saying that Bybee, Yoo and Bradbury must be disbarred because they wrote memos advocating brutal interrogation techniques.
BREAK TRANSCRIPT

RUSH: Now, let me be clear about something here regarding the situation with the extradition of John Demjanjuk and this whole Eric Holder business. On one day, certain kinds of torture are okay; certain days, they're not. I didn't mean to mislead and say that the Germans want to use the same tactics on Demjanjuk that they used on Al-Qaeda detainees. I don't want you to think that the Germans are going to waterboard Demjanjuk. What the Department of Justice is saying is that regardless what tactics the Germans may use, even if the Germans cause Demjanjuk to feel severe pain and suffering, this can't be torture because the Germans don't intend to torture Demjanjuk. That is, you can't have torture unless there's an evil motive to torture, and the Germans are saying, "We're not going to torture him," which is an adoption of the reasoning from John Yoo and Bybee.

Where they said the CIA should not torture Al-Qaeda guys, unless they had a motive to cause them severe pain and suffering. If they didn't have this motivate it would be a complete defense to any claim of torture. So even if you inflict severe pain and suffering on someone, which is the statutory definition of torture. There is no "torture" unless the government agent is deliberately trying to inflict torture. And that was the position in the memos from John Yoo and Bybee, and it's now the Obama DoJ's position. Now, their memo said we didn't torture these guys. Our intention was not to torture them. Here, we've got Andy McCarthy who has done some great research work on this. He's on the air to explain this and clarify this, 'cause I did not mean to say that the Germans are going to waterboard Demjanjuk. Hey, Andy. Explain this to people in a way they can understand.

McCARTHY: Sure, Rush. The whole idea behind the Yoo-Bybee memos from 2002 was to avoid torture. The idea was to avoid having a situation where severe pain and suffering was inflicted on these guys, and what Yoo and Bybee point out in the memo when they discuss the state of mind that you have to have for a torture offense is that when Congress passed this torture statute and when the United States ratified the torture treaty, what they tried to do was make it a very narrow crime. And in doing that what they said was, "You can't have torture unless you specifically intend to commit the crime of torture," which means you specifically intend to inflict on somebody severe pain and suffering.

RUSH: Now, did they write that to give anybody cover who was engaged in these interrogations?

McCARTHY: Well, that's the allegation from the left. My view is they wrote it because they were asked, "What is the legal outline, the legal contours of torture?" and be sure he couldn't outline what the legal contours of torture are without saying that. And I think there's a lot of support for that view in the fact that only a year ago, the Third Circuit court of appeals -- which obviously was not to create cover for the CIA -- in a case that involved an allegation of violation of torture under the torture treaty, the Third Circuit court of appeals came up with the same analysis that Yoo and Bybee came up with. They said that even if by sending this fellow who brought the suit back to his home country, and even if he had severe pain and suffering and even died from the fact that he couldn't get correct medical treatment in the place where he was going to be sent, that wouldn't be torture because the government didn't intend for him to feel severe pain and suffering. That wasn't the point of what the extradition was.

RUSH: Okay. So where we are here is that in terms of extraditing Demjanjuk, he's subjecting because the Germans going to torture him, our DOJ is saying, "No, they don't intend to torture him so they're not going to torture him." They're using the same reasoning that they're rejecting in the Yoo-Bybee memos?
McCARTHY: Exactly right. And basically what they're saying is even if Demjanjuk does inadvertently suffer severe pain and suffering from however he's treated by the Germans, our government is satisfied that that wouldn't be torture. Even if he's in exactly the pain he'd be in if they were trying to torture him, as long as they don't intend to do it. When Yoo and Bybee said that, the left went crazy and said, "They're trying to green light torture," but yet this is exactly the position the Obama administration has taken only about ten days ago.

RUSH: So now we have the story in the New York Times saying that (paraphrased), "Ah, we've looked at this. The DOJ has looked at this. We really don't think we ought to prosecute or investigate Bybee and Bradbury and John Yoo," but they really would encourage state bar associations where they practice to disbar them because we still want to ruin their livelihood.

McCARTHY: Well, that certainly looks like the way it's going. No one's actually seen what this direct report says, and obviously, according to these reports, there's a lot going on behind the scenes to try to affect the outcome here. But you do have to worry that all of this blather about criminal prosecutions under circumstances where there's obviously no torture case here legally, could be a big feint in order to make them look magnanimous if all they do is refer these guys for bar discipline. And yet it would destroy these guys' lives professionally.

RUSH: Well, what are the odds that the bars in these states would follow through on this and issue any discipline? I mean, are they afraid of the DOJ as well? Is everybody afraid of Washington now to the point that cover comes out of Washington in terms of a suggestion or request is considered a demand?

McCARTHY: I think, Rush, that that's something to be profoundly worried about, if they can manipulate the Justice Department process in this direction. You know, the bar associations tend to be left of center to begin with.

RUSH: This, if I might remind people about last week, this is specifically why you wrote the letter to the Attorney General Eric Holder declining the invitation to participate in some bipartisan task force going forward, right? Because, among many other reasons, one of the reasons was your opinion is going to disagree with theirs and you don't want to be prosecuted down the road because you think they already had their process written, and inviting you and others that may not agree with them was just a show?

McCARTHY: Yeah, especially given that the attorney general last week in a speech in Germany basically said that the position I hold -- which is that people should be held under the laws of war in Guantanamo Bay until the end of hostilities -- is a violation of the rule of law. So I'm already on notice that he thinks my opinion is a law violation. So for me to go into a meeting as a lawyer and advise the Justice Department to do something that he already has decided is against the law would imperil me just the way that these Bush administration lawyers have been basically put in the crosshairs by giving a good-faith piece of advice about what they think we should do on these national security matters.

RUSH: I'm talking with Andrew McCarthy, who is a writer-editor at National Review and National Review Online and a former prosecutor for the US attorney's office -- Southern District of New York, which is Manhattan -- and Andy led the prosecution team that convicted the blind sheik, Omar Abdel Rahman. For people just turning in, I want them to know the voice that they were listening to. So Andy, as a lawyer and as somebody who's worked in the Justice Department, you're very much aware of it power US attorneys offices have: the attorney general, the DOJ. You look at these people from Holder down and the way that they're conducting business, what are your fears? This just seems like the tip of the iceberg here with the dichotomy or the feint, if you will, with the way Demjanjuk might be treated. And yet we want to destroy the lives of American lawyers who authored the very same belief system that they're going to use to extradite Demjanjuk. What else is going on that people may not know about?
McCARTHY: Well, my biggest fear, Rush, is that we're having a repeat of what we saw in the 1990s, particularly with the "wall" regulations, which were a set of internal Justice Department guidelines that prevented the national security side of the FBI's house from communicating with criminal investigators and prosecutors like me. Those regulations created an ethos, a philosophy within the government that there were things that were more important than the national security of the United States, and making sure the left hand knew what the right hand was doing so that we could figure out what the threats were against us. And the feeling that it put in people throughout the government was that if you tried to do your job -- if you tried to push the envelope, if you tried to protect the American people, if you tried to go the extra mile to figure out what the threats against us were -- that could be professionally ruinous for you. And we saw where that led on 9/11. I don't, frankly, think it should have taken until 9/11 to figure it out because we were attacked repeatedly from 1993 going forward. And I think in terms of... You know, look. What difference does it make to somebody like me or to John Yoo or to Bybee? You know, you can ruin one lawyer or three lawyers or however many lawyers. The important thing to those of us who care about the country is, we need to have the government, as we've seen, given the threat that we're up against, moving heaven and earth to figure out what the threats are against us, to figure out where the next place we might get hit is.

RUSH: Excuse me. I get the distinct impression this administration does not think of that threat as serious at all.

McCARTHY: Well, they rhetorically suggest that it's serious but certainly if you look at what they're doing compared to what they're saying, I have to agree that you're right.

RUSH: Well, I don't know how you... That's the whole point with Obama. He says all these wonderful things, like we're going to have a chance to track every dollar of the stimulus bill, at Recovery.org. Then we learn today that the site's not going to have any worthy data until next year, and it's not even going to have to it then. It's all a joke! While he talks about protecting the country and so forth, he's making deals with Hamas, selling Israel out. He's got John Kerry out saying to Iran, "Hey, look, we're going to change our policy on regime change. We'll accept you; we'll tolerate you -- if you guys just get rid and suspend your nuclear program." These are fools. They have to know that Ahmadinejad, the Iranians, are not going to accept this, even if they said they would.

McCARTHY: Well, you make a great point, and you raised before the letter that I sent last week. Another reason that I didn't want to go to this confab on Monday was because I thought essentially it's a charade. It's sort of the difference between what they're doing and what they're saying that you've just outlined. They're contending, or they're telling people, that they're studying carefully all the issues about detainees. And yet what we're finding is that they're actually releasing detainees. About four weeks ago they released a guy outright named Binyam Mohamed who was sent back to England. He's the collaborator with Jose Padilla, the guy that was the so-called dirty bomber. He was actually planning mass murder attacks in American cities. He was held as an enemy combatant for about six years by the Bush administration. The Obama administration has just released him to England. So for all this arguing about, you know, "Should we do it in the criminal justice system or should we do it in the military system?" You could argue that all day long but I don't think anybody thought we should be releasing these guys, and yet that's what they did with him and it's what they're planning to go with these guys, the Uighurs, who they're actually talking about releasing into the United States.

RUSH: Yeah, I got this story today -- and I've got a couple minutes here and I have to go -- but it's being reported at Politico that Harry Reid is demanding specifics on where the prisoners will go and what's going to be done with them. So this story makes it seem like Harry Reid is saying to Obama, "Where exactly are these yahoos going to be placed?" Is there some resistance in Congress to this?

McCARTHY: I think right now there's building resistance. Particularly in the House, I think Representative [Pete] Hoekstra (R-MI) and Frank Wolf (R-VA) have been pushing hard on this. I expect that other people are going to be pushing hard on it as well. It's important that people know, Rush, that we actually passed some law in 2005 that makes it illegal to bring aliens into the United States if they've had terror training or been affiliated with a terrorist organization. The Uighurs are excludable on both grounds.

RUSH: Eh, that's a Bush law. It was unjust and immoral.

McCARTHY: (laughs)

RUSH: We're not going to pay any attention to it.

McCARTHY: Right.

RUSH: Andy, I gotta run. I appreciate your calling. Thanks.

McCARTHY: My pleasure, Rush. Thanks.

RUSH: Andrew McCarthy.
BREAK TRANSCRIPT

RUSH: In Landaff, New Hampshire, this is Andrew. Great to have you, sir, thank you for waiting.

CALLER: Thank you. Mega dittos.

RUSH: Thank you, sir.

CALLER: Attorney Bybee and Attorney Yoo should not be prosecuted, disbarred or reprimanded in any way. Their client, the United States of America, for her citizens, asked their lawyers to define torture: How close to the line can you get without going over and violating the law? Just like umpires, just like in football referees define what is out of bounds, what is foul. The line is intent. The USA asked, "Where is the line?" and they decided the line is intent. And intent matters in the law very much. The difference between negligent homicide, for example, manslaughter, and murder in the first degree, is intent. Without intent, it's negligent homicide. With intent to do something else but causing a death, it may be manslaughter. And premeditation makes it capital murder, murder in the first degree.

RUSH: Okay, so what you're saying here is that the John Yoo and the Bybee memos had no intent to torture. When they put together the procedure, there was no intent to torture anybody here, and therefore it can't be said that they set out to torture? Is that your point, that they're right?

CALLER: That's correct. Exactly correct. Because just like --

RUSH: Okay. Now, here's what you have to understand, though. Now, while you and I agree on that, you also have to add the fact that Eric Holder and the Department of Justice agree to it. However, they don't agree to it when applied to the American lawyers. They only agree with that concept when John Demjanjuk faces extradition to Germany. His lawyers say, "You can't send him to Germany! He's going to be tortured." They resort to the same reasoning that Bybee and John Yoo used in their memos. "No, the Germans aren't going to torture, because they don't intend to torture Demjanjuk" -- or Demjanjuk. I've heard it pronounced both ways.

CALLER: When you... I beg your pardon. We are used to them changing the rules, though, for wanting to aid their side. For example, the administration officials who blamed their computer or somebody else for their tax returns being wrong. What were they doing? They were indicating their intent: "I did not meeeeean to not pay my taxes. Please blame something else. Please treat me differently."

RUSH: Right. That was Geithner. (paraphrased) "TurboTax screwed up! I didn't intend to cheat the government."

CALLER: Yeah, see?

RUSH: Which, of course, is patently false because he did it over a number of years.

CALLER: Yes. He's not in any way being reprimanded yet they have the audacity to try to go after these attorneys. These attorneys accurately described the crime. To torture you must want to and you must intend to and then you must do. You cannot accidentally torture somebody, and you cannot and should not be punished for advising your client that that's where the line is, that if you hit the ball this far...

RUSH: Wait a minute. You're talking about within the bounds of the law. This administration is not about that. This is about pure totalitarian politics.

CALLER: But your program is about the law, and America should be about the law.

RUSH: I agree! I agree here. But I'm saying this is why nobody cares. The New York Times story does not detail any of this. All the New York Times story says is, "Okay. They're not going to be prosecuted, Obama administration magnanimous. They're just going to recommend that maybe state bars disbar these guys or reprimand them." They still want to destroy 'em! They just want it done somewhere else other than the DoJ.

CALLER: And, and, by doing it that way, Rush, they get a lower threshold for evidence. Because if they were going to criminally prosecute, they'd have to approve beyond a reasonable doubt that these attorneys did something wrong. But if they take it to the civil level and for just disbarment, the level of scrutiny can be much lower. They can just say, "Was it merely 51% instead of beyond a reasonable doubt?"

RUSH: Right.

CALLER: Was the propensity of the evidence a little lower, and therefore we can get the equivalent of a conviction. You're not making any money in jail and you're not making any money without your law license.

RUSH: That's exactly right. That's exactly right. Well, I'm glad you called and clarified that.

CALLER: Well, thank you very much, Rush, for all you do.
END TRANSCRIPT
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