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).
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.