Today in Torture: Even If We Did Investigate Bush Lawyers, Could We Prosecute?

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Pelosi: No on torture. Photo: Getty Images

Yesterday attorney general Eric Holder released the timeline behind Bush-administration approval of controversial interrogation techniques at secret prisons, and revealed that the use of waterboarding was given the nod by then–national security adviser Condoleezza and attorney general John Ashcroft in the summer of 2002. It was not until the fall of 2003 that secretary of State Colin Powell and secretary of Defense Donald Rumsfeld were told of the use of the tactics. This fueled the conviction in Congress that it was a good-size, though secretive, faction of Bushites that pushed hard for their approval and use. While some Democratic leaders, like senators Harry Reid and Dick Durbin, have remained quiet on the prospect of investigating those men and women, House Speaker Nancy Pelosi called for a "truth commission" and railed against giving anyone immunity.

According to The Wall Street Journal, if the debate comes to prosecution, the way is "littered with potential legal problems":

There is international precedent for prosecuting officials accused of enabling war crimes. But the two main statutes that could form the basis of a U.S. prosecution have shortcomings for prosecutors. The antitorture statute sets a relatively high standard for prosecutors to meet, particularly when it comes to proving intent. Top officials could argue they relied on the legal memos that authorized the tactics and outlined how specific techniques in question wouldn't cause severe pain and suffering. The other law, the U.S. statute against war crimes, was narrowed in the Military Commissions Act of 2006, as legal scrutiny of the U.S. antiterrorism effort mounted, to give officials more protection against prosecution. The changes also were made retroactive. In addition, congressional hearings or a truth commission might involve grants of immunity to witnesses, complicating their future criminal prosecution.

Politically, a news analysis in the Times says the key to this debate for Bush, Cheney, and Obama is not whether the harsh interrogation techniques produced "high value information," as the current president's director of national intelligence Dennis Blair wrote last week, but whether the information actually prevented any attacks on American soil, as Obama's predecessors are quick to assert. The techniques and their effectiveness have been reviewed multiple times by in-house CIA investigators, so the truth is out there — it's just a matter of if, when and how it's revealed.

There's already plenty of conflicting information:

One 2005 memorandum, for example, asserts that “enhanced techniques” used on Abu Zubaydah and [Khalid Sheikh Mohammed] “yielded critical information.” But the memorandum then lists among Abu Zubaydah’s revelations the identification of Mr. Mohammed and of an alleged radiological bomb plot by Jose Padilla, the American Qaeda associate. Both those disclosures were made long before Abu Zubaydah was subjected to harsh treatment, according to multiple accounts. On Mr. Mohammed, the record is murkier. The memorandum says that “before the C.I.A. used enhanced techniques,” Mr. Mohammed “resisted giving any answers to questions about future attacks, ‘Simply noting, ‘Soon, you will know.’ ”But the same memorandum reveals in a footnote that Mr. Mohammed, captured on March 1, 2003, was waterboarded 183 times that month. That striking number, which would average out to six waterboardings a day, suggests that interrogators did not try a traditional, rapport-building approach for long before escalating to their most extreme tool.

It will likely take months for lawyers, an irate Congress, distracted White House, and defensive Bush administration to pick through and parse all of this.

Torture Cases Would Face Legal Problems [WSJ]
At The Core of Detainee Fight - Did Methods Stop Attacks? [NYT]
Harsh Methods Approved as Early as Summer 2002 [WSJ]
House Speaker Nancy Pelosi ups pressure for 'truth' panel on torture [NYDN]