Posted by WLS Shipwrecked:
In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton of the “Torture” memos.
It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations — they actually did something that might fall within the parameters of the statute, if their actions are found to satisfy the definition of “torture” that was readily discernible from the language of the statute.
But they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (“guilty mind) necessary to establish knowing criminal conduct. When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice. If the actions went beyond the scope of the advice given, that would open up a potential prosecution. But there is no factual record that I’m aware of suggesting that the use of enhanced interrogation techniques following the issuance of the memos was different than that described in the memos.
Prosecuting the officials who offered the advice is a different question. But what would be the charge? It can’t be “Torture” under the statute — they didn’t do anything. They simply responded in their official capacity to a question raised by another governmental entity.
I would first caution you to read the actual memos — which I suspect Andrew Sullivan has never taken the time to do.
Two things you need to take into consideration:
1) Provide a solid legal explanation about why the enhanced interrogation techniques described and authorized by the memos fall within the prohibition of ”Torture” as prescribed by 18 U.S.C. Sec. 2340 and 2340A. If they weren’t “Torture” as defined, then there is seemingly no basis for prosecuting the drafters of the memos which authorized their use.
2) How does the act of drafting of the memos setting forth a legal analysis of these interrogation techniques, and the application of the torture statute to them, fall within the prohibition of that statute — or any other statute?
It’s one thing to say that members of the previous administration should be prosecuted, it’s quite another to set forth a cogent and persuasive legal theory upon which such a prosecution would rest, and the evidence that would prove beyond a reasonable doubt the mens rea and actus reus necessary to sustain a criminal conviction.
It’s tiresome to hear critics simply say “Waterboarding is torture. Prosecute them all.”
The memos state that waterboarding, in the specific method advocated by the interrogators, does not fall within the prohibition on torture. Other forms of waterboarding might — such as that used by the Japanese in WWII that often resulted in the drowning of the person undergoing the procedure.
Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong? Reading the memos is necessary to answering this question.
How does the act of engaging in this analysis — even if the legal conclusion reached is erroneous – fall within the prohibition of any criminal statute?