In case you haven't watched today's news, here are the "torture memos" issued by Bush-Cheney's Justice Department which enabled the top administration bosses and their underlings in the CIA to carry out illegal torture tactics on prisoners. War criminals like Dick Cheney still justify their actions with impunity. Why should he worry? The weak-kneed Obama administration, even while making the memos public, has made it clear that it intends to paper over the lawlessness of its predecessors for the sake of moving forward.
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Accidental Blogger 
11 responses to “Bush-Cheney’s Torture Memos”
Here are the words in Pres. Obama’s statement:
“In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.” (Emphasis mine).
I’m not a lawyer, and would defer to the opinions of Anna, Joe, Sanjukta and so many others vastly more qualified, but what definition of ‘good faith is in play in the phrase above. Is it weak knees or a hidden threat?
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Your question, Sujatha, may not be the rhetorical one you intended. Prof. Heller at Opinio Juris explains here and here how Obama has finessed the standard sufficiently to leave unaddressed an important question. Good faith is not the issue, according to Heller. Reasonableness is. (Here’s where I begin my tirade against the malleability of standards in law.)
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Okay. So, Obama has finessed the issue – blanket impunity for CIA operatives who practised torture in “good faith.” Does the hair splitting leave room to go after the DOJ lawyers who did the “finessing” in the memos and their bosses in the executive branch?
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I suspect that in practice “reasonable reliance” will look a lot like “rel[iance] in good faith.” Obama’s statement may have a weasely aspect to it — it’s deliberately ambiguous, so that we can all interpret it to mean whatever we prefer it to mean. But I think it would be pretty difficult to successfully prosecute CIA agents who relied on OLC/DOJ legal advice. It has to be presumptively reasonable to do so.
I don’t think this statement (at least what Sujatha has quoted) at all precludes going after lawyers who twisted the law to allow torture. An entirely different legal standard must be met, of course. But as a practical matter, I don’t think Yoo, Bybee, or anyone else is going to be prosecuted — probably for political reasons more than legal reasons.
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On the heels of Joe’s comment, this line, among others, from a piece today in the NYT: “Mr. Ensign and Gen. Hayden also argued that the prospect of prosecution would give C.I.A. agents pause when accepting legal advice about the practices they use.” “[G]ive…pause.” How quaint.
Prof. Heller’s remarks, however, dispute the notion that reliance would be presumptively reasonable, or at least the more absolute notion that reliance is per se reasonableness. If the hurdle is only a presumption, then the presumption can be, as they say, rebutted, at least in theory.
But all this talk about CIA agents fires me up again to read Mailer’s Harlot’s Ghost. None of his characters would stoop to “give pause” over the propriety of a little upside-the-head slap or two!
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I think the question arises as to whether the CIA operatives who used the procedures before the memos were issued could be rely on the ‘acting in good faith’ argument. If it took these memo to ‘clarify’ which practices could be construed as not being ‘torture’ , wouldn’t the operatives who used those practices before the memos still be subject to being tried? Will using the shield of the memos to hide behind grant them impunity?
Maybe nothing will come of these, but one can always hope.
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Grrr. I hate it when I have typos that I can’t edit after the fact.
Here’s what the previous comment should have read:
I think the question arises as to whether the CIA operatives who used the procedures before the memos were issued could rely on the ‘acting in good faith’ argument. If it took these memos to ‘clarify’ which practices could be construed as not being ‘torture’ ,wouldn’t the operatives who used those practices before the memos were issued still be subject to being tried? Will invoking the justification of the memos grant them impunity?
Maybe no prosecutions will come of these, but one can always hope that the torturers will pay heavily for their deeds.
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so Obama is proving to be mere sound after all? they say orators never make good administrators.
Is the US getting disilllusioned already? after all it’s less that a quarter since he took over.i’m curious.
we people sitting out here in india are watching him with great hope to make a difference in the Agfhan/pak/taliban problem. We surely hope he delivers – –
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I think it’s a mistake say, based on this post and comments, that “the US” is already becoming disillusioned with President Obama. The Accidental Blogger bloggers generally are further “left” (flawed but convenient shorthand) than mainstream Democrats, and as Obama is a mainstream Democrat, we harbored few illusions in terms of where he stands politically. We did, of course, expect good governance, and politics much preferable to anything we might have seen out of McCain-Palin. The public generally, meanwhile, is probably OK with a lot of Obama’s decisions with which the bloggers here tend to disagree.
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Also Joe, Obama may not be able to get his “no prosecution” wish without some scrutiny. Sen Diane Feinstein, who chairs the Senate Intelligence Committee has writtent to him saying, <a href=http://thinkprogress.org/2009/04/21/feinstein-torture-letter/”>”not so fast.” Hopefully, at the very least, the lawyers who enabled Bush-Cheney will have to answer for their connivance. Of course, true justice will only be served if we get the top guys on the dock.
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Wow, that’s something, getting Ms.Feinstein (whose husband has landed huge defense related contracts from the govt.) to jump on the ‘Senate investigation’ bandwagon. And Dick Cheney wants the release of more ‘secret documents’ from the CIA vaults- what is the world coming to, if a simple ‘no prosecution’ declaration by Obama can raise this kind of outcry. Will everyone now cry tears of joy, now that Obama has opened up the door to investigation and prosecution?
I’ve a sneaky suspicion that all of them fell for the Brer Patch/Brer Rabbit gambit.
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