The Obama Adminisration published, without much redaction, memos outlining interrogation tactics reportedly in advance of a court ruling that would order them to be declassified. Here is a link:

Obama consulted widely on memos - Mike Allen - POLITICO.com

I have very mixed emotions about this. I worry that it places our CIA operatives in an impossible position. I worry that it undermines our abilty to be protected. I think operatives are less likely to do all they can, even with government authority, because they will worry that they will face prosecution, next time. Who are we going to get to do those jobs?

I think this makes us less safe and as someone living in an area that is likely to be the subject of another attack, this is not something that is just a vague concern. Perhaps if I were back in Oklahoma it would be easier to focus on the hypothetical instead of the likelihood of actual danger. People in this area have our lives on the line, everyday, simply by virtue of showing up to work. Moreover, I've got kids in NYC. I want my government to keep them safe. Sometimes I wonder if the President thinks the war is over.

I "get" that there looked to be a court ruling coming down the pike but in my opinion, I think our President should have gone down swinging on this. If he is ordered to do it, so be it. I think this is more about politics than protecting us.

If transparency was all that important to him, how about letting the public (and congressmen) read the stimulus bill before passing it?

That's a question worth repeating.

ECO, I think the only think you "worry" about is running out of things to run down the President with. Either that or you are in sore need of some xanax.

Anxiety is a very serious illness and you seem to be in a constant state of high anxiety.

The sky has not fallen yet. We still have the opportunity to put Newt back in power.

It has been shown that torture is an ineffective way of gathering useful information.

This needs to come to light because we need to reclaim a respectful position in the world community if we are going to be able to accomplish the things we want to accomplish.

Are you speaking from personal experience? That's kinda what you went through when Bush was president, isn't it? That's what I thought.

I think ECO raised some good questions. Why don't you address her concerns in an intelligent way instead of criticizing her for posting this factual article and expressing her concerns? Liberals pride themselves in being intelligent, well, give an intelligent answer instead of putting her down. I know it's difficult, but you can do it!

Perhaps if you would lead by example... which has been sorely lacking up to this point.

Did not the news report, yesterday or earlier, a story relating the decision has already been made not to seek prosecution on any operatives who were following the tactics sanctioned by their government? Seems I saw such an article, and if my admittedly faulty memory is functioning well, it seems the operatives were advised they were in the clear before the stories came out.

I suspect there's not one who is losing sleep over fear of prosecution, unless he or she acted well beyond their authorized scope of authority. such a person ight have need to worry yet, but your run of the mill harsh methods inquisitor is not in harm's way from the law.

Just an opportunity to drag the Bush Administration through the mud for a news cycle and pacify the America Sucks crowd. The left can spit, scream and squeal in their attempts to portray Bush and Cheney as evil and sinister, they're not. They were intent on preventing another attack and were successful. We'll see how the smartest president in history does.

William A. Jacobson
Associate Clinical Professor of Law, Cornell Law School, Ithaca, NY
Thursday, April 16, 2009

No Prosecution Because No Crime
The Obama administration released today four memoranda detailing the legal analysis regarding interrogation techniques, most notably involving Abu Zubaydah. There is a lot of outrage regarding the interrogation techniques approved, but those are mostly non-legal issues. Some of the techniques approved, such as grabbing the collar, should not evoke moral outrage in any reasonable person. Other techniques are much more questionable, such as water boarding. I'll address these issues in a later post.

What is important to note at the outset, however, is to distinguish between the law and morality. Not everything which is immoral is illegal. To be guilty of a crime, one must violate a specific criminal law. The criminal law invoked here is 18 U.S. C. sec. 2340 and 2340A. Those who are calling for prosecution need to read the statutes. A plain reading of the language makes clear that there was no crime committed.

18 U.S.C. sec. 2340 provides the definitions of what constitutes torture (emphasis mine):

As used in this chapter--

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

18 U.S.C. sec. 2340A provides for criminal sanctions for conduct which constitutes torture as defined in sec. 2340:

(a) Offense.--Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.--There is jurisdiction over the activity prohibited in subsection (a) if--
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.--A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

The key wording in the statute is "specifically intended" and "severe." A generalized intend to cause harm, but not necessarily severe pain or suffering, is not a crime. Similarly, a specific intent to cause some, but not severe, pain or suffering is not a violation. There are no guidelines as to what constitutes severe pain or suffering, other than that in the case of mental pain or suffering, the effects must be of a long duration.

This is a poorly written statute, and it will be interesting to track the legislative history of why and how the key terms were inserted, and further definitions omitted. What is important for the present discussion is that the requirement of specific intent, and the use of terms such as "severe" and "prolonged" means that Congress meant to set a very high bar before there could be a prosecution. Congress clearly intended to give wide latitude to those conducting interrogations before one crossed the line into illegal torture.

The decision of the Obama administration in not prosecuting either the authors of the memoranda or those who acted in reliance on the memoranda should not be viewed as being either an act of benevolence or deal making politics. Rather, it is highly likely that the Justice Department or others determined that based on the wording of this statute, there was no crime committed, or that there likely would be valid legal defenses.

The problem is not the lawyers or those who relied on the lawyers, but the law. There will be no prosecution because under the statute as passed by Congress, there was no prosecutable crime committed.

UPDATE: Glenn Greenwald's post on the subject of non-prosecution is typical of those who don't read the statute or understand the law. Greenwald makes the point that the government, under international treaty, "shall ... submit the case to its competent authorities for the purpose of prosecution...."

That has been done. The case was submitted to the Department of Justice, which made a decision not to prosecute. Submitting a case for prosecution does not mean that there must be criminal charges brought if the prosecuting authority believes no crime was committed.

The explanation of Eric Holder as to the reason for non-prosecution unfortunately is imprecise as to the reason. I believe that when Holder says that it would be "unfair" to hold criminally liable those who relied on legal advice of DOJ, Holder simply is stating what is obvious under the statute. There needs to be "specific intent" to cause "severe physical or mental pain or suffering." But if DOJ has opined that the specific conduct did not fall under this category, then there was no "specific intent."

Is this circular? Yes, but that is the way the statute works. Those who argue that we must "respect" the law have to use that respect even when they don't like the result.

A link
Le·gal In·sur·rec·tion: No Prosecution Because No Crime

Irresponsible at best, borderline treasonous, and the word malfeasance comes to mind as well.

Waterboarding....bah Did you know our special forces undergo the treatment in training? As well as several other forms of interrogation?

If these combatants who are HELL BENT on killing Americans won't talk, and waterboarding helps the process of getting information out of them then SO BE IT!

We have become such a ***** nation I can't even believe it. Simple solution: Instead of taking prisoners - SHOOT THEM ALL. Problem solved. Either go to war and kick ass, or stay home and shuttap.

Attention everyone:

you can't get much more backwards than this.

Holy smokes!!

Bostonfar,

I would suspect you don't get out much. DaveSkater' views are actually rather tame compared to many folk.

Seriously?...both the house and senate versions of the stimulus bill have been available online for months.

No kidding!!

I thought beheading kidnap victims, IEDs, suicide bombings, flying airplanes into buildings and terrorizing innocent people by blowing them up would be worse.

It's apparent the left views conservatives with much more disdain than individuals who actually want to do harm.

Neo-libs think that anyone who doesn't walk lock-step with liberal ideology is "the enemy".

ECO, well said. The CIA was talking about how this will only empower extremist groups such as Al Qaeda how to train their crew to resist "US interrogation tactics, etc." by bringing exposing the methods we use, etc. They mentioned other things how they think this will bring more harm than good. While I don't support torture, I feel they may be right about bringing it to public spotlight. If Obama wanted to shoot down tactics privately, that's fine, but to bring our methodologies public, stupid move and issue of national security, IMO.

This isn't your Playstation games we're talking about.

there is too much tough talking cowboy rhetoric going on.

the torturing of "enemy combatants" for info is for the jack bauer types. to believe it didn't take place pre "W" is naive, but it was taking place in such a large scale fashion that it drew attention. it is a crime. i don't know if im for a criminal trial though, id be happy if we just shunned them for the rest of their lives...Cheney goes out for a bag of groceries and everybody turns there back on him. prolly wont happen though, huh? but still, it'd be pretty sweet!

I am raising a question of my own which is why ECO is in a constant state of high anxiety.

Sometimes it's hard to see what her point is because it is always the same...the sky is falling.

Yes, kill them all. But first, torture them as much as possible. What ever names fall out between torture and death, take those people, torture and kill them. Repeat as often as possible.

It's the American Way. We're the good guys.

Torture is really only good for one thing--vengence. If that's all we want, by all means, torture is great. Pliers, blow torches, medieval dental drills....go to town Hannibal, I mean Dave...have yourself a ball.

If we want to actually achieve national security and foreign policy objectives, then it's not particularly useful.

I'm not even saying we shouldn't do it. I'm just saying we shouldn't brag about it or make it the official policy. In my mind, we must do what is smart, just, and effective.

Torture as a policy isn't any of these things.

Feels good though, doesn't it?

I see the pre-9/11 head-in-sand mentality is slowing creeping back in. Okay, so anyone who is concerned about our safety is now branded a mental case of high anxiety. I've still got lots to learn about this newspeak.

I read that they aren't planning to prosecute. I guess my concern is that now that they've given one bite of the apple, they really aren't going to be able to do it, again. I am not suggesting people should break the law. (although for that matter, the Obama Administration hasn't said they aren't going to be doing some or most of the things outlined). I think I am just considering how I would feel if I were in that situation. There are a lot of people with the best intentions and they might want to avoid ever having to risk prosecution. So will that result in people avoiding that job? I don't know.

THEY didn't even read them before they were signed into law - much less the people. There is no excuse for that. You know that.

That is exactly my position. And I know the court was about to rule against him but I honestly believe he should have waited until and unless he had an order. And I'm willing to bet they could have redacted a lot more than they did but that is speculation on my part, granted.

If you promised transparency, as long as it isn't a national security interest secret, you follow through. The idea is to get more countries on our side. If we really needed to torture we can sub it out to the Israelis, or Tony Soprano but keep our hands clean.

And yes, this was done to tweak Dick Cheney's nose. Cheney has been running his mouth, trying to elevate his hero status, and attempting to undermine the new administration before it got off the ground. He has been in lockstep with Rush Limbaugh in trying to do everything possible to make the new government fail, including whispering to the Saudis what a weakass Prez we have.

Our president is doing a well enough job establishing that on his own.