Further to my earlier post asking the question Should We Prosecute Bush for Torture?, check out this interview with Jonathan Turley, professor of constitutional law at The George Washington University Law School:
Key quote:
“If waterboarding is torture — and Barack Obama has said that it is torture — and torture is a war crime, then the president has committed a war crime if he did order waterboarding. You have to do some heavy lifting to avoid the simplicity of that logic.”
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This comment from Mason, who wasn't able to log in to post it:
1. “If waterboarding is torture … ” An error of omission. The correct premise should be, “If waterboarding of prisoners of war is torture.” Other possible correct premises might include “prisoners in U.S. custody” or “under U.S jurisdiction” – take your pick, but without the supporting clause, Turley’s statement of law is only half-correct.
We’re talking about torture as a legal concept, not as a colloquialism. Legally, waterboarding a puppy is not torture; waterboarding a chimpanzee is not torture; waterboarding a cadaver is not torture. Those examples may be wrong, sick and cruel, but puppies, chimps and cadavers are not covered by the relevant treaties, statutes or case law. Closer to home, at the time the Administration authorized waterboarding on three detainees, it was not at all obvious that those detainees were entitled to protection under the relevant law. Indeed, there were many cognizable arguments (arguments that many legal scholars continue to be the correct view) that those detainees were specifically excluded from the relevant law.
2. “and Barack Obama has said that it is torture …” President-Elect Obama doesn’t get to decide what is and what is not torture. The Constitution allocates the privilege of defining torture to the legislature (which writes our laws) and the judiciary (who interpret the laws). I would think those who shouted most loudly about President Bush’s supposed aggrandizement of executive powers would remember something this basic.
3. “then the president has committed a war crime …” If the Administration did not know the act was illegal or had a reasonable basis for believing the act was legal at the time of the actus reus, then no crime occurred. Congress’s and the courts’ subsequent acts that clarified the status of the detainees cannot be applied retroactively – see the no ex post facto laws clause – Article I, Sec. 9.
4. “if he did order waterboarding” Again, the error of omission. In September 2002, Congressional leaders were informed of all aspects of the administration’s interrogation program, including waterboarding techniques. No objections were raised. A larger group of Congressional leaders was also subsequently briefed. Among the leaders present were current House Speaker Nancy Pelosi; Rep. Jane Harman; and Sen. John D. Rockefeller (all Democrats). Those leaders urged the administration to explore more aggressive techniques. The available courtroom-admissible evidence regarding these meetings indicate that both political branches were involved in a collective decision making process regarding interrogation techniques of Al-Queda suspects.
Not that it changes the legal analysis, but progressives pushing for war crimes might consider if the current Madame Speaker really wants public hearings regarding her role in these matters.
Look, if you think the President and his administration committed serious crimes under U.S. law, the Constitution is pretty explicit about how to deal with it – impeachment. Absent the Constitutionally mandated method for dealing with alleged presidential crimes, we can vote every 4 years to change administrations. See Barack Obama, the election of.
A bit swamped right now and don't have a chance to respond fully yet. One thing to ponder. I noticed you mentioned scienter a couple times. Interesting. Read this article and think on it: http://www.scoop.co.nz/stories/HL0901/S00123.htm
For intent to be satisfied for you, would malice (intent to violate the law or recklessness as to the act's illegality) be enough for you? What if they ignored repeated warnings that their acts were illegal? Does this mean that the OLC becomes a get-out-of-jail free card? Whatever they say is legal — is legal?