Torture and the Law

There are reports that Attorney General Eric Holder intends to prosecute low level CIA officials for acts of torture. However, these same reports indicate that prosecutions will be limited to officials who exceeded the guidelines laid out in the legal memorandums issued by the Office of Legal Counsel - the so called "Torture Memos."

On the one hand, it strikes me as unfair to prosecute officials for going a bit too far with these techniques, specifically because the torture memo's were top secret documents that were never seen by CIA field officials. It seems unfair to prosecute an interrogator who used too much water in his waterboarding technique, or who failed to give the required break between sessions, or who kept a detainee sleepless for 11 1/2 days instead of the authorized 11 days, particularly if these measures yielded the intelligence bonanzas that the Bush Administration claims.

On the other hand, I really don't care. No American citizen could have reasonably believed that it was legal to waterboard detainees - we have prosecuted waterboarding numerous times in the past - or to deprive people of sleep for up to 11 straight days, or to high chain them in a 54 degree room while naked for many hours at a time, or to throw cold water on them while they are shackled in such positions, and so forth and so on. No interrogator could reasonably believe that such actions were legal, no matter what they were told be their superiors.

What bothers me is that we're not going to go after everyone involved in this program, from the bottom up to the top. If Eric Holder only goes after people who exceeded the techniques authorized by the OLC, he is implicitly stating that what the OLC authorized is legal - even though it was previously recognized as illegal by all signatories to the Convention on Torture - and even though everyone involved knew that such conduct was illegal.

Worse, Holder will be endorsing the proposition that if a President can find (or place) a functionary in the OLC who will write a secret memorandum stating that a particular behavior is legal, then that behavior becomes legal for that reason alone. Holder will be endorsing the proposition that the President can make his own law and act in ways that the people, through their elected representatives and appointed judicial officials, have determined to be illegal - and that he can do this in secret. Holder will be enshrining the proposition that our Executive is a law unto himself.

As Glen Greenwald recently put it, this is a rather significant development in Western jurisprudence. Had President Nixon or Reagan known about this, they could have saved themselves a lot of trouble.

US and international law defined "torture" as the "intentional infliction of severe mental or physical pain or suffering." Contrary to the "specific intent" crowd, sadism is not an element of "torture." The Convention on torture expressly includes the purpose of extracting information within the definition of torture - meaning that such purposes cannot be used a legal defense. These laws were the product of many years of international negotiations and subsequent congressional action. They were signed into law by president Reagan and endorsed by every subsequent American President, including George W. Bush.

No sane person can deny that the techniques were perfornmed intentionally, or that they inflicted severe mental or physical pain or suffering. The plan, after all, according to none other than Vice President Cheney, was to "break" the detainees by "taking off the gloves." And, by their own testimony, this was accomplished.

Nonetheless, we now know that any President can set aside any such laws, and immunize the government officials who break them, by having a functionary in the OLC write a memorandum saying that such conduct is legal. The president doesn't even have to tell us that he's doing this. Apparantly, Obama can get a lawyer in the OLC to write a secret memorandum saying that his Article 1 powers authorize him to order the summary execution of American citizens, and thereby immunize officials who carry out such orders. The Bill of Rights and Federal Statues be damned.

For my part, if there is a more unamerican proposition, I've yet to hear it. And I have to ask, what does our acquiescence say about us and our alleged patriotism? If our exceptionalism, or our nationalism, or political tribalism is so strong that we'll allow criminals to rewrite our constitution rather than hold them accountable, then how much can we really love this country?

Anyway, you should look at this clip which contains readings from the torture memos. It dramatizes just how perverted and extreme the Bush administration became - in secret - and why we should not let these issues die.

Joe H.