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The Truth About Torture
But Congress has defined torture very narrowly. The OLC has advised officials since 2002 that some highly coercive methods—including waterboarding, which is assailed by most of the world as torture—do not violate the federal anti-torture law. Until mid-2006, the OLC also advised that interrogators could ignore the 1949 Geneva Conventions' far more sweeping ban on all "cruel" and "humiliating and degrading" treatment of prisoners. The lawyers found, and Bush declared, that Geneva did not protect stateless terrorists, such as members of Al Qaeda.
Then five Supreme Court justices gave the administration a nasty surprise. Rejecting the views of a federal appeals court, President Bush, the OLC and four other Supreme Court justices, the majority held that Geneva does protect Qaeda members and other Guantánamo detainees. This brought into play the federal War Crimes Act, under which Geneva violations can be prosecuted as federal crimes.
But any such prosecutions would probably fail. Congress has retroactively amended the War Crimes Act to block any prosecutions for brutal interrogation methods short of torture. And officials could raise a nearly airtight defense of good-faith reliance on advice of counsel—OLC memos on approved methods would be like "get out of jail free" cards.
Of course, if he carries out pardons, Bush will be attacked for cronyism and accused of a cover-up. But one of the main beneficiaries would be the next president. Absent pardons, pressure to go after GOP "war criminals" would make it very hard to unite Americans of all stripes behind solutions to the many economic and social challenges facing the country. No new president—especially if he turns out to be Barack Obama, who has made such a point of getting beyond partisan bickering—needs that.
© 2008
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Member Comments
Posted By: SharedThought @ 08/29/2008 1:19:37 PM
Comment: Whenever it appears that serious wrongdoing has been done at the REQUEST of a president, or at the request of others at high levels of the executive branch whose basic message the president BECAME AWARE of some time ago, THEN, it seems to me that the pardoning of such persons by the same president would, serve to set a precedent for future presidents to conveniently ENABLE individuals to do wrong by such a pardon. I think it would be better if, in the NEXT administration (Obama or McCain), Congress would pass a conditional amnesty that says, "Reveal ALL that happened, or remain subject to prosecution."
Posted By: halides1 @ 08/06/2008 9:40:00 AM
Comment: You raise an important point. Jordan J. Paust discusses it in his book ???Beyond the Law.??? On page 31 he discusses Article 7 of the International Covenant on Civil and Political Rights with respect to torture. He quotes a committee, which says that ???[a]mnesties are generally incompatible with??? the duties to investigate and prosecute crimes such as torture. However, amnesty is not the same thing as pardon, and the use of the word ???generally??? would seem to allow for exceptions. Granting pardons coupled with a truth commission might well run afoul of international laws (as you indicate), but it is possible that such a combination would not. I do not know enough law to be sure.
Posted By: Egypt Steve @ 08/05/2008 3:26:22 PM
Comment: You're high. The most urgent need is not simply a full accounting of what happened, urgent as that is. The most urgent need by far is to re-establish the rule of law, and to finally end the culture of impunity for crimes committed by the President and his minions that was created with Ford's pardon of Nixon. This country would be a far, far better place if Nixon had died in prison, and it would be a far, far better place of Bush were to die there, too. Unfortunately, the "serious" class that you so ably represent are terrified of that possibility. Too bad. Thanks to you and to your ilk, things will only go from bad to far, far worse.