High Crimes and Misdemeanors

There’s a new NYTimes piece about how the Bush administration put into place America’s torture policy. The short version is that even after the Justice Department declared torture abhorrant in Dec 2004, the Department, now Albert Gonzales "stewardship" was unleashing new classified opinions allowing it. The opinion was signed by Steven G. Bradbury who is now head of the Office of Legal Counsel at Justice. In July of this year President Bush signed an executive order authorizing "enhanced" interrogation techniques and apparently restarting the overseas "black sites" where the CIA keeps prisoners.

Kevin Drum notes that "The Times says that "most lawmakers" didn’t know about this secret opinion. That means that some of them did. I’d like to know which ones."

JB over at Balkinization notes that regardless of scandals, Supreme Court rulings, or new laws the administration keeps churning out new opinions justifying their war crimes. Scandal will not be sufficient to stop them. New laws will not be sufficient to stop them. Forcing resignations and then exerting tight controls over replacements can do something. That said, there’s some reason to worry about the new Attorney General candidate. He at least seems qualified, but according to Mike Isikoff (via Marty Lederman who provides the emphasis)

According to three sources, who asked not to be named discussing the private meetings, Mukasey said that he saw "significant problems" with shutting down Guantánamo Bay and that he understood the need for the CIA to use some "enhanced" interrogation techniques against Qaeda suspects. Mukasey also signaled reluctance with naming a special prosecutor to investigate Bush-administration misconduct, according to one participant.

Andrew Sullivan summarizes the issue nicely:

There is no doubt - no doubt at all - that these tactics are torture and subject to prosecution as war crimes. We know this because the law is very clear when you don’t have war criminals like AEI’s John Yoo rewriting it to give one man unchecked power. We know this because the very same techniques - hypothermia, long-time standing, beating - and even the very same term "enhanced interrogation techniques" - "verschaerfte Vernehmung" in the original German - were once prosecuted by American forces as war crimes. The perpetrators were the Gestapo. The penalty was death. You can verify the history here.

I don’t have that much hope that this bunch will be tried in America anytime soon. That said, they may be disappointed if their retirement plans involve a lot of European vacations.