I disagree with your conclusion, though. The UN Convention on Torture (signed by Reagan) is about as clear as you can be on this point:

“2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

That’s not to say that Bush, Bybee, et al should have just read this statute and called it a night. It means that other great leaders have struggled with the same “ticking time bomb” question for centuries, and have all come to the same conclusion: when torture is condoned – for any reason – democracy goes out the window.

Speaking of ignoring, I suggest you do just that with Steve Evan’s comment about the length of your comments. I notice that when Steve is confronted with a well reasoned argument that goes against his opinion, he resorts to personal attacks, sometimes camouflauged, sometimes not.

Hmm no takers?

Alright its established that waterboarding is torture then…

Now that we know its torture, anyone who committed it, ordered it, ignored it, or enabled it should now be prosecuted.

Ohh BTW none of that “well we thought it was legal.” Two things come to mind when I hear that.

1) If you have to ask you cant do it.
2) Ignorantia legis neminem excusat (ignorance of the law excuses no one)

Ohh BTW Dan.. good post

The correct URL is : http://www.washingtonpost.com/wp-dyn/content/article/2009/02/16/AR2009021601198.html

Remember, this is not torture to produce a confession for use as evidence in a criminal trial. It is, at worst, torture to get informaiton to prevent the murder of hundreds or thousands of innocent people.

But there is where you get to the crux of the problem. These techniques are not what you think they are. They DON’T prevent the murder of hundreds of thousands of innocent people!

These techniques originate from the Chinese who used them on American soldiers to extract FALSE CONFESSIONS! That’s the whole point of torture.

Furthermore, just look at the evidence from the memos themselves. One memo recounts how KSM was waterboarded 183 times in the month of March 2003. That’s the month he was captured in. They didn’t even bother trying to first build a rapport with him to get him to talk on his own free will. My feeling, based on what I’ve learned about KSM, he would have gladly spoken of his accomplishments. Furthermore, note one other important aspect of the fact that he was waterboarded 183 times in March 2003. If this technique was so good at breaking down a hardened terrorist, would it need to be used 183 times in one month on that same individual? One more thing to note about KSM and March 2003. What event took place in March 2003? The war in Iraq was started. Why do you think Bush ordered KSM to be waterboarded so many times in March 2003? Because he, and the interrogators, came in with a preconceived notion (that Al-Qaeda and Saddam were collaborators), and that the more KSM just couldn’t connect the two for them at the last minute, it really ticked them off, so they pressed further. Surely somewhere deeper in his mind is that golden nugget! See, Bush wanted that nugget, the one that never existed. He wanted the link between Al-Qaeda and Iraq. He always believed it, though it was never there. And because interrogators were ineffective at getting that link, he ordered torture to get that link. Of course, torture failed because it just does.

The use of torture was about getting intel on the connection between Saddam Hussein and Osama Bin Laden. The war in Iraq was a distraction from our real enemy, but Bush and his buddies really thought that Saddam was the baddest boy on the block. They couldn’t fathom the possibility that there really was no connection between the two bad boys. So they ordered torture to try and force it out of the detainees.

Remember that. Torture was used to try and get a fake link between Saddam and Al-Qaeda so it would be easier to hoodwink Americans into thinking it was okay to attack Iraq.

It is utterly reprehensible.

If the unwillingness to use waterboarding led to the deaths of your own family, and a thousand of your neighbors, would you really see the result as morally justifiable? If another major attack occurs, in which thousands are killed, and it becomes known that our refusal to torture a terrorist led to the deaths of innocents, I think it more likely under those circumstances that the person being brought up for impeachment would be the President of the US who preferred the comfort of a terrorist over the lives of Americans.

This is just fearmongering and unrealistic.

I read a piece recently on the intel America has of the Taleban right now, and let me tell you, we’re going to lose Afghanistan and Pakistan in the near future. We apparently know so little of the motivations of the Taleban. How can that be after EIGHT YEARS of fighting against them! Why hasn’t the torture that has been done at Bagram Base given us more information about who our enemy is? Seriously!

They knew that laws that prevent American government from defending its citizens would never be accepted as excusing their direct culpability for the outcome of another mass killing of Americans.

Then CHANGE the frakking laws, not subvert the current ones!

But to prosecute the people who were involved in this policy is more of an exercise in self-righteousness than a fair acknowledgement of the difficulty in making such judgments at a time when the lives of Americans were in your hands.

No. It is about adhering to the laws we purportedly believe in. Either we believe in the rule of law, or we don’t. We cannot have both.

No one in responsible positions in American government was ever held personally liable for the unconstitutional imprisonment of 100,000 innocent people. The military justification for the action was totally bogus, as was clear from the fact that the Japanese American population in Hawaii, an obviously more crucial military location, was almost entirely left alone.

FDR is still lionized by minority groups, even though he rejected the advice of his own attorney general when he signed the executive order for “relocation”, and had to be almost blackmailed (by Elbert D. Thomas, Senator from Utah, among others) to allow Jewish refugees to come into the US. Earl Warren is remembered mainly for his leading the Court to a unanimous opinion denouncing racial segregation in schools in Brown v. Topeka Board of Education. It is continuing offense against our children when we don’t teach them about the negative actions of men who were and continue to be held in high esteem. But how much good would it have done to impeach Earl Warren or FDR on those grounds?

Even if you think the judgment of Bybee and others in the Department of Justice was atrocious, taking up a cudgel against them, and in effect torturing them because you disagree with them, teaches hatred and indulgence of the will to vengeance, rather than restraint in the use of power. One of the most basic consitutional limits on criminal enforcement is that there be no ambiguity about whether the act that one is accused of was a crime based on what was known at the time. Notice that one’s actions were illegal must be objectively clear in order to meet the standard of “due process of law.” There is no justice in “victor’s justice” where the main element of a crime is that you belong to a political party different from the one that won the last election.

Saying that torture (however you define it) is unacceptable under any circumstances is easy to say, but what if real lives are at stake? After what happened on 9/11/2001, military air defense pilots know that, if the scenario is ever repeated, they could be ordered to shoot down a civilian plane, containing a hundred innocent people, in order to stop it from being used to kill even more people on the ground. The people who fought back on United Flight 93 knew that their actions could speed the death of all of the innocent passengers. If it is morally justifiable in some cases to actively kill a hundred innocent people to prevent a terrorist attack from succeeding, how can you say that it is unequivocally illegal and immoral to coerce someone through torture–without killing him–if it would provide information that would prevent that awful choice?

Remember, this is not torture to produce a confession for use as evidence in a criminal trial. It is, at worst, torture to get informaiton to prevent the murder of hundreds or thousands of innocent people. If the unwillingness to use waterboarding led to the deaths of your own family, and a thousand of your neighbors, would you really see the result as morally justifiable? If another major attack occurs, in which thousands are killed, and it becomes known that our refusal to torture a terrorist led to the deaths of innocents, I think it more likely under those circumstances that the person being brought up for impeachment would be the President of the US who preferred the comfort of a terrorist over the lives of Americans. And you can bet that George W. Bush knew that, if he were that President, the same Democrats who are attacking him now would be more than happy to crucify him.

I think that it was precisely that scenario that led people in the Bush Administration to actions that were at the edge of constitionality, and perhaps even beyond it. They knew that laws that prevent American government from defending its citizens would never be accepted as excusing their direct culpability for the outcome of another mass killing of Americans.

Let us have a debate about what should and should not be done with terrorists who mean us massive harm. But to prosecute the people who were involved in this policy is more of an exercise in self-righteousness than a fair acknowledgement of the difficulty in making such judgments at a time when the lives of Americans were in your hands.

The Times & Seasons post is about impreachment — actually the NYT editorial board’s view of impeachment. As I told you today, I think impeachment is a non-starter for political reasons. There just will not be anything close to 66 votes to convict in the Senate because Republicans won’t cooperate.

The T&S writer (Kaimi) is correct that precedents regarding impeachment are murky. Impeachment is at least as much a political action as a legal action. Although there is a loose tradition of making impeachment proceedings mimic criminal-justice standards, ultimately Congress can impeach, convict or acquit on whatever grounds it pleases. There is no one empowered to tell them otherwise. (See Clinton, William Jefferson.)

Unless there is real smoking-gun evidence of criminal behavior, I think there would be no chance of conviction. If there is such evidence, which I doubt, it would probably be easier to indict and convict Bybee in federal court.

The T&S post mostly misses the core issue about Bybee’s behavior, dismissing the question merely as one of “very very bad judgment.” It is fairly easy to make a case that the Bybee memos were substantively wrong. The question is, were they actionably wrong, and if so in what venue are they actionable?

The blog post never really addresses what Bybee’s core duty as a government lawyer was when he wrote the memos — to issue an objective adjudicatory opinion on the what the law is, based on solid analysis, not just advocate what policymakers wanted to hear. That is obviously a subjective question, but legal processes deal with subjective questions all the time and render them to bright-line judgments.

The threshhold determination will be made by the pending investigation by DOJ’s Office of Professional Responsibility. It may be that is as far as it goes, even if the language is damning. Other than state bar discipline, there really are not other enforcement mechanisms I know of that could reach Bybee, Yoo or Bradbury. That is a possibility, and state bar discipline can have real teeth. For example, I once covered a Virginia DA being investigated by a state special prosecutor, who instead of bringing criminal charges referred clear-cut evidence of wrongdoing to the state bar. The DA resigned and was disbarred.

There have been some leaked reports of the OPR investigation, and we are still waiting to see the results. I’m expecting that it will charge ethics breaches of some kind, but not refer anything for criminal prosecution. Here are the two stories (about 11 weeks old) about what OPR reportedly found:

Newsweek: http://www.newsweek.com/id/184801

WashPost: http://www.washingtonpost.com/wp-dyn/content/article/2009/02/16/AR20 09021601198.html

The Newsweek story contains this fascinating detail: “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. ”

So if there is a smoking gun, it would probably be in that paper trail. Hypothetically, an email exhange with David Addington showing improper deference to the White House might be sufficient to show a breach of ethics. A real smoking gun would be something that showed Bybee actually thought the interrogation practices were illegal, but willfully wrote a wrong opinion. (I would be shocked if there is anything so clear-cut. If there were such evidence, impeachment would be the least of Bybee’s worries, because he could be indicted for conspiracy to commit torture, a serious felony under the Torture Act.)

So my bet is that there will be some ethics allegations against Bybee. I don’t know where that might lead. I think there is enough known now for the public to form a very low opinion of Bybee’s actions. I absolutely think he should resign with some public recanting of the opinions. Unless he honestly believes — as John Yoo claims to — that there was no problem with any of the controversial opinions and how they were decided, I can’t see how he could justify putting the nation through a legal and political civil war to keep his lifetime job on the bench.

Bybee is obviously a nice guy and a smart lawyer — so smart that it is hard to give him the whole benefit of the doubt under the layman’s principle of Hanlon’s Razor. I think he just let Yoo (his subordinate) and Cheney/Addington/Gonzales use him very badly, and he wanted that judgeship a little too much.