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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.

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Member Comments

  • Posted By: Explorer46 @ 01/14/2009 10:56:52 PM

    And not a word about the good work that was done in intelligence? Seems like the kangaroo court is already is session.

  • Posted By: rewinn @ 01/13/2009 7:02:26 PM

    @ebbolles: excellent point. A few grants of immunity is an old and useful prosecutorial tool for getting the small fish to talk. No reason not to give it a try ... unless of course one is an apologist for torturers, as the author of this article most certainly is

  • Posted By: glensarahs @ 01/10/2009 8:29:47 AM

    I think you are saying it's okay to break the law? Lovely. Many that don't break the law are scapegoats and found guilty of a crime they did not do and you want us to find innocent those guilty of great crimes that can cause terrorist acts to be thrown on us.
    Maybe you are guilty of a crime you feel was okay to commit so you say this.l

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