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Last sunday, Obama's Chief Of Staff, Rahm Emanuel, said the administration didn't support prosecuting "those who devised policy" on terrorist detainee interrogations.
Two days later, President Obama reversed that position by saying this:
For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.
With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.
When Obama's Press Secretary, Robert Gibbs, was asked by the media later in the day why the President reversed his position, Gibbs gave all the following reasons - 1) Obama didn't reverse his position, 2) Gibbs didn't know why Obama reversed his position, 3) It was all so confusing that Gibbs couldn't understand what the reporters were asking him, and 4) Obama wanted to show that nobody was above the rule of law [but actually, Obama exempted the actual terrorist interrogators from prosecution, so I guess some people ARE above the rule of law]. Robert Gibbs is a piece of work.
In any case, the door is now wide open to criminal prosecutions of Bush era people. Among those who could possibly be prosecuted - the lawyers for the Office Of Legal Counsel who wrote the "torture" memos, President Bush, Attorney General Alberto Gonzales, CIA chief George Tenet, Vice President Dick Cheney, and the entire Senate Intelligence Committee from 2002-2003.
To figure out if any torture law was broken, we have to define torture. Waterboarding Khalid Shaikh Mohammed 183 times in 30 days sure sounds like torture to me, but my personal opinions don't matter. Only the law matters. I'm no lawyer, but I'll try to find a torture law that the Bushies broke.
Let's start with the definition of torture as defined by Bush's Office Of Legal Counsel (OLC). In the Augst 1, 2002 Bybee Memo, the OLC describes torture as follows:
Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.'
Under the OLC definition, almost anything goes, including waterboarding. Where did the OLC come up with this medieval definition of what constitutes torture ? They must have just made it up to justify the acts they were planning, right ?
No, they didn't. John Yoo, one of the OLC's torture memo authors, described where the OLC's legal opinion came from in a 2005 article:
While the definition of torture in the August 2002 memo is narrow, that was Congress' choice. When the Senate approved the U.N. Convention Against Torture in 1994, it stated its understanding of torture as an act "specifically intended to inflict severe physical or mental pain or suffering.'' The Senate defined mental pain and suffering as "prolonged mental harm'' caused by threats of severe physical harm or death to a detainee or third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality.'' Congress adopted this definition in a 1994 law criminalizing torture committed abroad.
The U.N. Convention Against Torture defines torture as "an extreme form of cruel and unusual punishment committed under the color of law. The Convention allows for no circumstances or emergencies where torture could be permitted." That's still not definitive, but under the UN's definition, it's pretty clear the Bushies would have violated the law. Waterboarding KSM 183 times would be considered both "cruel' and "unusual" by almost anyone.
But, as John Yoo said, the USA didn't merely sign the UN Convention Against Torture. The Senate issued several qualifying declarations, such as the following:
The United States understands mental torture to refer to prolonged mental harm caused or resulting from (1) the intentional infliction or threatened infliction of severe physical pain and suffering; (2) the administration of mind-altering substances or procedures to disrupt the victim’s senses; (3) the threat of imminent death; or (4) the threat of imminent death, severe physical suffering, or application of mind-altering substances to another.
...the Senate’s advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual, and inhumane treatment or punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to
the U.S. Constitution. The United States also opted out of the dispute-settlement provisions of CAT Article 30
This at least explains where the OLC's take on torture came from. They didn't pull it out of thin air.
The question remains- is waterboarding torture under this legal description ? According to Bush's OLC, the answer in 2002 was 'no.' I don't think I agree with them, but I'm still wondering how you can prosecute the OLC lawyers for offering their legal opinions to the Attorney General. And if the Bushies, the CIA, and the Senate were acting on those legal opinions, how can you prosecute them either ? It seems to me you'd have to prove some sort of conspiracy between the OLC lawyers and the White House, to prove they intentionally ignored existing law. That'll be a tough case to make. As for the Senate Intelligence Committee, I believe the Constitution protects them from being prosecuted for carrying out their legislative duties.
Like I said, I'm no lawyer, and this examination of the law is far from complete, but I wanted to get the ball rolling on this subject, because there's probably going to be much discussion to come.