Release of Bush-era “torture” memos proves Bush wasn’t Hitler after all

Posted by: ST on April 17, 2009 at 8:51 am

The Usual Suspects on the left and in the MSM (but I repeat myself) have exploded in outrage over what was “revealed” in Bush-era “torture/interrogation” memos released yesterday by an Obama administration desperate to prove that government should be “transparent” (even though by their own standards, the only transparency they’re interested in is transparency for past administrations, not the current one).

To find out what all the “outrage” is about, go here to read the memos. Go here for the short version:

The four memos show that Justice Department lawyers authorized the Central Intelligence Agency to use such techniques as sleep deprivation, slapping, nudity and waterboarding that simulates drowning.

Lawyers also said it would be all right to put one high- ranking al-Qaeda suspect in a cramped box with what he was told would be a stinging insect. The idea was discarded, a footnote in one memo said, “for reasons unrelated to any concern” it might be unlawful.

This is what supposedly puts us on the same level as Islamofascists?

Apparently what’s in the memos is so “unlawful” that the Obama administration has decided to ….

not pursue prosecution against CIA agents who acted in “good faith” consistent with the legal advice given to the CIA at the time. This decision has infuriated ya’ll-know-who, who are all busy scratching their pointy heads this morning wondering why, with such “incriminating evidence,” the admin has decided to abandon the idea of prosecuting CIA agents.

For the answer to that, we turn to legal eagle William Jacobson, who points to the legal definition of torture, and concludes:

The key wording in the statute is “specifically intended” and “severe.” A generalized intend to cause harm, but not necessarily severe pain or suffering, is not a crime. Similarly, a specific intent to cause some, but not severe, pain or suffering is not a violation. There are no guidelines as to what constitutes severe pain or suffering, other than that in the case of mental pain or suffering, the effects must be of a long duration.

This is a poorly written statute, and it will be interesting to track the legislative history of why and how the key terms were inserted, and further definitions omitted. What is important for the present discussion is that the requirement of specific intent, and the use of terms such as “severe” and “prolonged” means that Congress meant to set a very high bar before there could be a prosecution. Congress clearly intended to give wide latitude to those conducting interrogations before one crossed the line into illegal torture.

The decision of the Obama administration in not prosecuting either the authors of the memoranda or those who acted in reliance on the memoranda should not be viewed as being either an act of benevolence or deal making politics. Rather, it is highly likely that the Justice Department or others determined that based on the wording of this statute, there was no crime committed, or that there likely would be valid legal defenses.

The problem is not the lawyers or those who relied on the lawyers, but the law. There will be no prosecution because under the statute as passed by Congress, there was no prosecutable crime committed.

I look forward to the analysis sure to come from the Volokh bloggers later. I’m also looking forward to thoughtful commentary coming from others not predisposed to viewing Bush as a modern day version of the worst kind of dictator, either. There’s room for a healthy debate and disagreement on the issue, but only if you can drown out the windbags like “legal expert” Glenn Greenwald and “rule of law advocate” Andrew Sullivan.

Related: Michael Hayden, former CIA director, and Michael Mukasey former US AG (both under Bush) pen an opinion piece titled, “The President Ties His Own Hands on Terror” – make sure to read the whole thing.

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23 Responses to “Release of Bush-era “torture” memos proves Bush wasn’t Hitler after all”

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  1. alchemist says:

    George Orwell, 1984

    “You asked me once,” said O’Brien, ‘what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.”

    The door opened again. A guard came in, carrying something made of wire, a box or basket of some kind. He set it down on the further table. Because of the position in which O’Brien was standing. Winston could not see what the thing was.

    ‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.’

    He had moved a little to one side, so that Winston had a better view of the thing on the table. It was an oblong wire cage with a handle on top for carrying it by. Fixed to the front of it was something that looked like a fencing mask, with the concave side outwards. Although it was three or four metres away from him, he could see that the cage was divided lengthways into two compartments, and that there was some kind of creature in each. They were rats.

    ‘In your case,’ said O’Brien, ‘the worst thing in the world happens to be rats…’”

  2. Severian says:

    Ah, we can always count on liberals like alchemist to completely take Orwell out of context and wrongly. If you are familiar with Orwell’s story, Winston only went to “Room 101″ after he had been severely beaten, starved, and abused in a manner our Islamist enemies would approve of. But, nice try at obfuscation, as usual.

    There is a reason Obama is releasing this now, and that’s because he’s getting nervous at the push back against his radical socialist plans, what with the tea parties and the outrage over his blatant attempt to stifle political speech and demonize conservatives and veterans. This is entirely a “what, you are upset at me…well, uh…uh…well…uh BUSH BAD!!! Look, over there, BigFoot! ManBearPig!” It’s designed to take the focus off his administrations serial failures and abuses, nothing else. As the nutroots leftists are also getting upset at him, he knows full well this will distract them like throwing a box of donuts into a WeightWatchers meeting.

    But, we’re glad to see you can cut and paste alchemist, now all you have to do is work on it being relevant and you might just amount to something.

  3. Brontefan says:

    I absolutely agree, Severian. It is surely a red herring. With a Prez who has virtually no experience–he has not run so much as a law office–and actually signs a 1000+ page bill that neither he nor his Congress has actually read, is it any wonder so many Americans are fed up with the concept that we are working for them? I have two Senators, both liberal Dems, and when you write either one a letter, you get a standard email saying thank you for your comments. They probably throw my letters in the trash. We have elected officials who genuinely do not believe that they work for the American people, let alone their constituents. Some of us are getting fed up with the “we can/you can’t” concept perpetuated by Liberals. They can call American veterans, of which I am, terrorists but have already declared the Islamic terrorists are not to be called exactly what they are! I don’t believe I have ever felt so disenfranchised before in my adult life.

  4. Carlos says:

    It’s not at all impossible this administration doesn’t prosecute those CIA operatives and military personnel involved because they don’t want to take the chance that up to twelve people, some with a little common sense, would come up with the disturbing conclusion that what these people were doing is not, in fact, torture as defined either by the Geneva Conventions or the dictionary.

    In other words, even His Hollowness can recognize a lie occasionally.

  5. Tim says:

    alchemist overlooks key differences between the horrifying 1984 scene and the real-life “torture” allegations. First, nothing was done to any CIA detainee that could have actually physically harmed him permanently. On the other hand, if the rats had been released, Winston would have certainly suffered permanent facial damage at a minimum. Second, motives matter. There is no question that Oceania represses its citizens, and this torture is one of the extreme ways of doing so. This concept is rightly repugnant to Americans – and hopefully all people. However, the American “torture” was done to save innocent lives. For all we know, it may actually have done so. Even if the real-life actions WERE torture, it’s easy to see the lack of moral equivalence between the 1984 story and the CIA actions. Would it be wrong for the CIA to ACTUALLY torture detainees (eg, thumbscrews, rack, disfigurement) if they (a) had excellent reason to suspect the detainees had knowledge of a plot that could cost thousands of innocent lives and (b) had reasonably tried but failed to extract the information through less aggressive techniques? In my view, not only would it NOT be wrong, it would be a moral imperative – FAILING to do it would be wrong! If we are concerned over the life of one detainee, certainly we should be concerned even more over the lives of thousands of innocents. What part of that is so hard to understand? What depraved morality can possibly question its logic?

    I think torture for torture’s sake, or simply as a means of repression, is reprehensible. However, torture of a few, if necessary to save countless innocent lives, is an entirely different question.

  6. Kate says:

    I gagged myself through a C. Hitchens interview on MSN this morning. This godless one who spoke arrogantly of the tortured summed up his reasoning for the wrongness of torture by stating….”they will give you false information under duress to avoid pain” (I paraphrased). DUH! Are our agent’s six year old naive children who would take that information and then fire off missiles…..again the elites don’t get it.

    I am sure there are some really miffed liberals who are spitting mad at Holder for not throwing the book at these CIA agents, not closing down GITMO the minute Barry took office, and other things….like not setting the dogs on the tea party peasants.

  7. Severian says:

    Would it be wrong for the CIA to ACTUALLY torture detainees (eg, thumbscrews, rack, disfigurement) if they (a) had excellent reason to suspect the detainees had knowledge of a plot that could cost thousands of innocent lives and (b) had reasonably tried but failed to extract the information through less aggressive techniques? In my view, not only would it NOT be wrong, it would be a moral imperative – FAILING to do it would be wrong! If we are concerned over the life of one detainee, certainly we should be concerned even more over the lives of thousands of innocents.

    An excellent point. The same liberals who constantly use the old Marxist/socialist mantra of the needs of the many outweigh the needs of the few, who use that philosophy to suborn the rights of the individual to the that of society at large, now want us to believe that the rights of a captured terrorist are superior to the right to life of thousands or more of our fellow citizens. Tim also makes very accurate points about Wilson’s misadventures in 1984 at the hands of Oceania’s finest. Not only was Winston seriously tortured prior to being threatened with rats, there was no doubt they would have released the rats, and the reason they were brutalizing poor Winston was that he had the audacity to want to act like an individual, not because he threatened the lives or safety of others.

    But given the report put out recently by our wonderful Homeland Defense folks, apparently they view us right wing extremists the same way Oceania viewed Winston.

  8. Lorica says:

    This release of documents is a Clinton tactic. It is pretty apparent that he wants the drive bys to talk about these documents and not about the op-ed he wrote for these Mexican newspapers.

    But here again we see the duality of the left. It is perfectly OK to kill innocents, but it is Absolutely wrong to extract information from the guilty. Look at the Iowa Supreme court decision recently. It used the “equal protection” clause of the Iowa Constitution to secure gay marriage. Now the smoke free Iowa law excluded the Iowa Casinos. So does the same clause, equal protection, protect the bar owner who wants to save his business by allowing smokers to smoke?? No, it does not. The logic is so muddled that it cannot be followed in any way. It just makes no sense. Bars are going out of business in both Iowa and Illinois, but that’s ok because they have “clean air”. LOL – Lorica

  9. Lorica says:

    Are our agent’s six year old naive children who would take that information and then fire off missiles…..

    No Kate the 6 year old idiots who fired cruise missles at nobody in order to destroy nothing left with the Clinton administration. =)) – Lorica

  10. Not sure says:

    It’s my impression that although Obama said he wouldn’t prosecute CIA operatives who relied on the memos, he did NOT say that their author, or anyone else would not be prosecuted…

    @Tim: no real-life government would ever admit they torture only “for the sake of torture”. It’s always justified by some kind of threat, real or perceived, and always with the intent of saving “countless innocent lives”

  11. Pat says:

    My biggest concern about BHO from day one was that he was naive and weak on national security. This reaffirms my opinion.

    I like Jacobson’s reminder that what is immoral is not necessarily illegal.

    By releasing these memos, BHO has as Mukasey and Hayden assert, effectively tied not just his own hands, but those of any future president should we need to reinstate those techniques.

    So if we capture bin Laden, we can only deal with him now in a penal, law enforcement capacity rather than use effective methods for intelligence gathering.

    Bah. Weakness. Sarkozy was right.

  12. alchemist says:

    Ah, we can always count on liberals like alchemist to completely take Orwell out of context and wrongly. If you are familiar with Orwell’s story, Winston only went to “Room 101? after he had been severely beaten, starved, and abused in a manner our Islamist enemies would approve of. But, nice try at obfuscation, as usual.

    I’m sorry, I didn’t realize you wanted to read about the beatings too.

    Abu Zubaida said interrogators wrapped a towel around his neck and slammed him into a plywood wall mounted in his cell. He was also repeatedly slapped in the face, he said. After the beatings, he was placed in coffinlike wooden boxes in which he was forced to crouch, with no light and a restricted air supply, he said.

    “The stress on my legs held in this position meant my wounds both in my leg and stomach became very painful,” he told the ICRC.

    Or like this?

    Often using the detainee’s own words, the report offers a harrowing view of conditions at the secret prisons, where prisoners were told they were being taken “to the verge of death and back,” according to one excerpt. During interrogations, the captives were routinely beaten, doused with cold water and slammed head-first into walls. Between sessions, they were stripped of clothing, bombarded with loud music, exposed to cold temperatures, and deprived of sleep and solid food for days on end. Some detainees described being forced to stand for days, with their arms shackled above them, wearing only diapers.

    “On a daily basis . . . a collar was looped around my neck and then used to slam me against the walls of the interrogation room,” the report quotes detainee Tawfiq bin Attash, also known as Walid Muhammad bin Attash, as saying. Later, he said, he was wrapped in a plastic sheet while cold water was “poured onto my body with buckets.” He added: “I would be wrapped inside the sheet with cold water for several minutes. Then I would be taken for interrogation.

    It’s not 1 technique that’s the issue, it’s 12-14 techniques used to together until someone is desperate pain. You don’t have to beat someone into bruising, you can chain them in place and let gravity do that (it’s a preferred technique in muslim prisons).

    Even sleep deprivation, alone can cause such severe hallucinations that the individual can longer tell the difference between reality and illusion. Afterwords applying the insect is not all that different from applying the rat. Many reports indicate that the victim feels ‘stinging’ even though it doesn’t exist. (BTW: this was Stalin’s favorite…)

    If the brain can differentiate reality, the torture is still very much real. I understand the difference. It just seems that you’re perfectly happy letting americans stand in for wilson.

  13. Carlos says:

    And we all know how verifiably honest those detainees all are/were. BTW, does it strike anyone strange how similar all the “tortures” are described, almost like they were scripted? And those “non-combatants’” stories of how they just happened to be in the wrong place at the wrong time, just doing humanitarian work (don’t pay attention to the gun I was carrying – it was just for self-protection)? Just sayin’…

    Alchemist, you’re using a favorite stupid tactic. Sure, there were some mistakes made. But when you base your entire argument on a few mistakes and apply those mistakes to all actions you abandon your argument in favor of clouding the real issue with smoke and mirrors. Nice try, but thinking people don’t buy into that. You may wish to espouse that crap on a blog where such arguments are accepted with the unthinking acceptance shown by all those with “the vision”.

  14. Kate says:

    alchemist….it’s amazing that anyone could live through such torture…I am horrified….just horrified that these poor islamo-whacko folks whose only crime was arming themselves and causing mass mayhem on the streets of Afghanistan and maybe killing just a few GI’s, would be subjected to such intolerable, inhumane treatment.
    :((

    But seriously, Clinton can blast away a whole nation as Lorica noted and used the same scenario to justify our involvement to this day in Sarajevo. How much are we spending thru NATO to rebuild their infrastructure?

    Of course, they are waiting for that Spanish judge to adjudicate GITMO and torture….that is what they really want to do, thereby appeasing the rest of the world.

  15. Not sure says:

    So if we capture bin Laden, we can only deal with him now in a penal, law enforcement capacity rather than use effective methods for intelligence gathering.

    If “effective methods for intelligence gathering” happen to be illegal, why not use normal political process and work toward formally legalizing these torture enhanced interrogation techniques, instead of using secret memos?

  16. Severian says:

    Alchemist, only a twit like you would assign any equivalence between 1984 and our treatment of terrorists. And you once again studiously not only miss the differences in treatment, but the salient fact that Wilson was being tortured for being an individual with wants, hopes, and dreams that were not state sanctioned, not for wanting to blow up women and children.

    You are a stunning example of the kind of ethical malaise and confusion that moral relativism produces.

    And, btw, what “Americans” stood in for Wilson? We’re talking about illegal combatants here, aka terrorists, the same type of people the Geneva Conventions allow us to summarily execute. As for believing the tripe trotted out by these terrorists whenever someone is stupid enough to give them a microphone, you also conveniently ignore how the AQ training materials specifically tell them exactly how and what to lie about wrt their treatment, and this piece of trash is quoting it chapter and verse.

    You, like so many other useless fellow travelers of your ilk, are all far too willing to believe the word of the worst people humanity has to offer over your own countrymen and women who are standing between you and the barbarians. I seriously think you need to look in the mirror and ask yourself just why and when you went so far off the rails that adopting that kind of attitude actually makes you think you have superior morals to everyone else. I suspect that you, like so many other leftists, are projecting how you’d like to treat your political and ideological opponents.

  17. Andy Vance says:

    - motives matter. There is no question that Oceania represses its citizens, and this torture is one of the extreme ways of doing so

    - Wilson was being tortured for being an individual with wants, hopes, and dreams that were not state sanctioned

    Right (except the “Wilson” part). But let’s complete the thought. Why is the state repressing citizens in Orwell’s universe? Because it is inherently evil and sadistic and hates hope and happiness? Recall that in 1984 the proles are allowed to be as happy as they please, as long as they stay out of politics.

    Or is it because it has come to see hope and happiness among the Outer Party members as a threat to stability–and therefore deems repression and torture as necessary to protect itself, and, by extension, its citizens?

    Orwell’s point is that justifying the means via the ends is a road you probably don’t want to travel.

  18. Pat says:

    @Not Sure
    I’m not clear on your “illegal” stance; if you read Prof. Jacobson’s analysis, no crime occurred.

  19. Carlos says:

    Not Sure: Ya mean like His Hollowness is doing even as we speak/write (writing secret memos ’bout most everything)? The only thing that has changed in this administration as far as that goes is who is the ultimate target. With GW it was the islamofascist terrorists. With Zero (according to the DHS memo) it’s probably the right-wing terrorists that don’t believe guvmint’s the answer to more than two or three problems and that buying votes off the backs of working people just ain’t right.

  20. Charlie sfcacique says:

    The interesting thing nobody remembers is that the memos were to limit and document what means could be applied. Before that, in the Clinton era and before, do you really think that the same means (and WORSE) were not applied, but they certainly were not documented. Now, releasing these documents means that every detainee will claim he was tortured, and that there was no record of it, and their lawyers will brandish these documents to say that the detainees were tortured. This means that all of them can claim cruel and inhuman punishment as defined by the executive branch of the United States. Not a court in the USA will be able to sentence them.

  21. Joe says:

    “Bush not Hitler afterall…” Um, good luck convincing the leftist sheep…they beleive in global warming for God’s sake!

  22. gordo says:

    Ahhh, the September 10th mentality finally takes command! Oh wait, I seem to remember we weren’t waterboarding detainees before 9-11. Thank God our moral authority prevented those terrorists from crashing their hijacked planes into….uh, wait. Well, now things are ok because Bush is gone! Wow, I feel like I can finally respect my country!

    Obama’s sheer stupidity is breathtaking.