The legal endgame

After he vetoed H.R. 2082, the “Intelligence Authorization Act for Fiscal Year 2008,” George Bush submitted the following explanation to the House of Representatives:

"Section 327 of the bill would harm our national security by requiring any element of the intelligence community to use only the interrogation methods authorized in the Army Field Manual on Interrogations. It is vitally important that the Central Intelligence Agency (C.I.A.) be allowed to maintain a separate and classified interrogation program... While details of the current C.I.A. program are classified, the attorney general has reviewed it and determined that it is lawful under existing domestic and international law, including Common Article 3 of the Geneva Conventions."

Forgive me for taking no comfort in the claim that the Attorney General has "reviewed" and approved the classified program.

Veto or not, "harsh interrogation practices" like waterboarding will be discontinued after next January 20th if a Democrat is elected.

So all this gets curiouser and curiouser, legally speaking. Why all the fuss, if the torturers might only be in business for another ten months?

The federal criminal code (18 USC 2340A) already prohibits acts of torture "committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering... upon another person within his custody or physical control." Additional provisions describe in some detail the forms of "severe physical or mental pain or suffering" that are encompassed by the prohibition:

"(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

"(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

"(C) the threat of imminent death; or

"(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality..."

It would take a prodigious feat of dissembling to convince a sober juror that this statute doesn't prohibit "harsh interrogation techniques" like waterboarding. (Although that's what lawyers often try to do, obviously.)

The existing law further provides for "federal extraterritorial jurisdiction" if the perpetrator is a U.S. national or the alleged offender is "found within the United States, irrespective of the nationality of the victim or the alleged offender."

If convicted, defendants can be sentenced to up to 20 years in prison or, if the victim was killed, the death penalty. Any person who conspires to commit torture is subject to the same term of imprisonment, but not the death penalty. A conspiracy charge could certainly be filed against any official who authorized acts of torture.

Here's the heart of the mystery: why enact a measure like HR 2082 when the legal toolbox is already adequate to prosecute torturers and those who authorize it?

By passing this bill, Congress implies that there's some ambiguity about whether waterboarding constitutes "torture" within the meaning of the existing statute, which was adopted in 2000. [1] It's stupid, unnecessary and plays into the legal strategy for Bush's endgame, which is to preempt prosecutions of administration officials who authorized torture and create ambiguity about what the law permits.

While one can appreciate Congress' interest in using its funding authority to limit torture, a Bush veto was inevitable. There's no hint that Bush/Cheney have any concern about how the U.S. is perceived in the world, or how his position on torture may affect U.S. troops who themselves become prisoners. These are issues for future administrations, and therefore irrelevant.

Meanwhile, Attorney General Michael Mukasey has initiated an internal ethics investigation of attorneys who approved the use of waterboarding—a process that, at best, would result in nothing more than removal from office. [2]

The far better course for Congress is to aggressively pursue the appointment of an independent counsel to prosecute administration officials who authorized torture. An in-depth congressional investigation is also long overdue [3]. Until those things happen, the Democrat "majority" will be dancing to the Bush/Cheney playbook.

NOTES

[1] The media have uncritically bought into the administration's notion that waterboarding falls into some gray area under existing law. Witness today's NYT article on the veto, which downplays waterboarding as "a technique in which restrained prisoners are threatened with drowning" [my emphasis].

[2] Mukasey has declined to prosecute waterboarders and administration officials on the ground that they relied on legal advice from DOJ attorneys. This is a variation on the "only following orders" defense, which wasn't received very well at Nuremberg. The Uniform Code of Military Justice permits U.S. troops to refuse orders that require illegal acts. Subordinates have a duty to disobey laws requiring them to commit criminal offenses under federal statutes. Once again: there is no ambiguity in the federal law, and it's a mistake to imply any.

[3] As the Bush veto again illustrates, the next administration will have to take very drastic measures to disassociate itself from the Bush torture regime (as noted in more detail here, here and here). A few exemplary prosecutions of war criminals would be a good start.

PHOTO: Water torture in Antwerp, 1556 (Wikimedia).