The Obama adminstration is using the “torture memos” in court. That’s right, the same legal reasoning that was so bad its authors should be prosecuted, or at least disbarred, forms the legal basis of the DOJ’s filing in Demjanjuk v. Holder.
Andrew McCarthy explains that the core of the 2002 Office of Legal Counsel argument is that torture is a “specific intent” crime, meaning that it requires an “evil motive to inflict severe pain and suffering.” Although the memo’s legal guidance was officially withdrawn in 2004, the Obama administration is still using its reasoning, even while publicly excoriating it.
McCarthy also makes an another interesting observation. Last year, the Third Circuit Court of Appeals, sitting en banc, adopted that same 2002 OLC reasoning by a vote of 10-3 in Pierre v. Attorney General. Indeed, they were fully aware that they were doing so.
One gets the idea from the media that the torture memos are thoroughly discredited. It’s hard to reconcile that with the fact that the Obama administration is still using their legal theory, and indeed that theory is binding legal precedent in Pennsylvania, Delaware, and New Jersey. It’s also hard to believe the kind of hypocrisy that would publicly press for prosecution and/or disbarment for authoring a legal theory one is using in court oneself.
(Via Instapundit.)
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