The ACLU went to court and forced the release of Office of Legal Council memos written under the Bush administration to provide legal cover for torture conducted by the CIA. The memos are here. The make for chilling reading, approving the use of medieval tortures on prisoners held by the US.
Republicans have embraced torture, and react with satisfaction and glee to the documentation of US torture. Most people find it appalling. A number of moderates find torture disgusting and are glad that the Obama administration has ordered it stopped but are dead set against prosecution of the torturers. For example, read Kevin Drum, Rob Farley, and Greg Laden. Newspaper editorial boards are split between torture advocates and moderates who oppose torture but also oppose prosecution of torturers. A few editorial writers are calling for what went on to be looked into and publicized–a truth and reconciliation type panel, but they are the rare wild-eyed ones.
The law here is clear. Torture is illegal under several US laws, for example:
TITLE 18 > PART I > CHAPTER 113C > Â§ 2340
Â§ 2340. Definitions
As used in this chapter–
(1) “torture” means an act committed by a person acting undepecifically 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 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 Sof Columbia, and the commonwealths, territories, and possessions of the United States.
And yet moderates argue that government agents who tortured prisoners were told that the OLC memos made it legal and protected the agents from prosecution, and that we must respect this.
As near as I can tell the moderates are making one or more of these arguments: 1) these government agents (CIA, etc.) can torture people because they the OLC memos make their actions legal, 2) that what US agents did to prisoners wasn’t torture, or that reasonable people could disagree over whether the prisoners were tortured, or 3) a combination of the two saying that the law was unclear on how much prisoners could legally be abused and the OLC memo clarifies the law and draws the line. The third argument is what the OLC normally does–interpret ambiguous or uncertain cases for the Executive.
I won’t touch argument one. The other two arguments often get combined–mostly three with a bit of two. The third argument, the ‘normal action of the OLC’ depends on two being true.
I would argue that you are reading the parsed legal language of the memos the wrong way. You read the parsed language, the detailed descriptions of the what is allowed and its limits, i.e. “For walling, a flexible false wall…” will be used and “the head and neck are supported with a rolled hood or towel” and think you are seeing the OLC clarifying ambigous law. This is not the case. What the OLC memo does is give aproval to a set maximal torture techniques, maximal under certain limits.
The torture techniques approved are protocols of torture limited to keep from killing the prisoners not to stay on right side of the law. The OLC is approving a torture regime that has been careful worked out by trial and error to inflict maximal pain, damage, and suffering without killing the prisoners or leaving obvious signs (broken bones, scars, death). The detailed protocol for beating prisoners (“walling”, slaps, grabs) was developed to keep from killing prisoners, not to prevent torturous treatment. Repeated knocking a man’s head against the wall will cause intracranial hemorrhage that kills a man and so a special beating protocol is necessary. It is surprisingly easy to kill a person by banging their head against a wall, the head is much more delicate than the limbs. Slapping and grabbing protocols are specified to prevent broken bones and also to prevent fatal contusions. A US Army report from a few years ago found dozens of homicides of detainees, many inadvertently beaten to death.
The OLC memo limits sleep deprivation to 11 days because that is the longest anyone is known to have survived under sleep deprivation. In experiments, rats have died after two weeks of sleep deprivation, it is not clear when it would kill people. So the OLC memo is endorsing maximal sleep deprivation. After two days, sleep deprivation causes progressively worse mental anguish and physical dehabilitation.
The stress positions endorsed by OLC are extremely painful and can cause permanent joint damage. Stress positions don’t leave scars and are rarely fatal, so they get OLC endorsement.
Previously released memos allow interogation up to the point of ‘major organ failure’. The typical result of ‘major organ failure’ is death of the patient. So the OLC was endorsing interogation up to but short of death.
The OLC memos approve a set of protocols designed cause extreme mental and physical anguish without killing the prisoners. The approved treatment includes many torture techniques of ancient origin, some notorious for their recent use against US soldiers in WWII, the Korean War, and the Vietnam War. The OLC wasn’t parsing ambiguous law so the ‘normal action of the OLC’ argument fails. As the government agents were using notorious torture techniques the argument that situation is ambiguous also fails. Realistically, can the people who carried this out and ignored the screams of their victims argue in court that this was not torture?