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War Criminal’s Terrible Arguments Look Even More Terrible


Look who’s back to defend the indefensible — Mr. John Yoo:

As a member of the Justice Department’s Office of Legal Counsel at the time of the 9/11 attacks, I thought that the CIA’s proposed interrogation methods were within the bounds of the law—just barely. They did not inflict serious, long-term pain or suffering, as prohibited by the federal statute banning torture. We realized then that waterboarding came closest to the line. But the fact that the U.S. military has used it to train thousands of U.S. airmen, officers, and soldiers without harm indicated that it didn’t constitute torture. Limiting tough interrogation methods only to al Qaeda leaders thought to have actionable information, during a time when the nation was under attack, further underscored the measured, narrow nature of President Bush’s decision.

This defense of waterboarding has always been specious on multiple levels. First of all, there’s the obvious problem of consent, a concept that seems to consistently elude conservatives. The fact that it’s used in training to allow military personell to resist torture is…not a good argument that it’s not torture. It is, in fact, torture.

All this aside, the Senate’s Report renders this focus on waterboarding largely beside the point:

The Bush administration’s supporters, operating under the assumption that its most brutal “enhanced interrogation technique” was waterboarding, spent much of the past decade defending this singular practice. Waterboarding did not amount to torture, they insisted, because Navy SEALS allegedly undergo the same treatment as part of their training. Anyway, it happened just a handful of times. Marc Thiessen, the Bush administration’s torture point man, later insisted, “We waterboarded in the CIA—the CIA waterboarded three terrorists. Just three.”

The torture regimen turns out to have been carried out on a vastly broader and more depraved scale than the administration’s defenders, or even its critics, ever imagined. The Senate Intelligence Committee’s report on CIA torture, released this week, describes practices few conservative politicians or intellectuals had prepared themselves to justify. Men were shackled to walls or ceilings for days, in diapers, locked in coffins, rectally violated, subject to days of sleep deprivation, beaten, and (in one instance) murdered. Several intelligence staffers reported being traumatized by the experience.


At no point did Cheney even approach a cursory answer to questions like: How did he know that those subjected to these techniques were, in fact, terrorists? Did some elaborate judicial process exist that contained even stronger safeguards against false conviction than the imperfect American legal system? How could American intelligence staffers, dropped into foreign lands, reliably pluck out the guilty while sparing the innocent?

As we now know, they could not. ­Twenty-six of the 119 detainees turned out to be innocent. One of them was a Pakistani or Afghan man named Janat Gul. In July 2004, the CIA seized Gul, acting on a tip from local informants who claimed he knew of a terror plot. His interrogators subjected him to sleep deprivation, slammed him into walls, and forced him to stand for as long as 47 hours in a row until he suffered hallucinations that he could see and hear his wife and children. He begged to be killed. Eventually, the informant who fingered Gul admitted to fabricating his story.

The entirely predictable consequence of ends-justifies-the-means reasoning that is not only hideously immoral but fails even on its own terms.

In conclusion, I turn things over to Dean Chemerinsky:

Torture is a crime, a violation of the Federal Torture Act. Those who engaged in the torture documented in such exhaustive detail in the Senate Intelligence Committee’s torture report should be prosecuted, and those who conspired in that torture should also be prosecuted. They include UC Berkeley law professor John Yoo, says Erwin Chemerinsky, Dean of the Law School at the University of California Irvine.

Yoo was co-author of the infamous “torture memo” of 2002, when he was Deputy Assistant U.S. Attorney General in the Office of Legal Counsel of the Bush Justice Department. In the memo he declared that—in the words of Jane Mayer in her book The Dark Side, “cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.”

Yoo’s memo “directly led to the torture policy that resulted,” Chemerinsky said in an interview, citing Mayer’s evidence. “That’s being part of a conspiracy to violate a federal statute. Someone isn’t excused from criminal liability just because they work for the federal government.”

The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control.” The penalty for violating the Torture Act is imprisonment “for not more than 20 years.”

Most important for the case of John Yoo, the Federal Torture Act specifically includes conspiracy, stating that “A person who conspires to commit an offense under this section shall be subject to the same penalties . . . as the penalties prescribed for the offense.” That means Yoo could be sentenced to up to 20 years in prison if found guilty.

“I think he should be,” Chemerinsky said. “All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage? How else do we deter it in the future—except by criminal prosecutions?”

It won’t happen — but it should.

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