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Attorney General Mukasey claims that President Bush doesn’t need to worry about pardoning members of his torture team because they face no serious criminal exposure. His latest statement came as my interview with Professor O’Connell was already in production. So I decided to put the question to her to get a real law scholar’s take on the question.
Attorney General Mukasey stated that there was “absolutely no evidence” that anyone involved in developing the Bush Administration’s torture policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” His statement assumes that it is a defense to the crime of torture under the War Crimes Act and the Anti-Torture Act, as well as under international law that they implement, for a person to believe he is acting in the interests of national security and in the belief that torturing is lawful. Is Mukasey right about this?
No. The prohibition on torture is absolute in all circumstances—it is a jus cogens or peremptory norm of international law. There are no exceptions to the prohibition. This is clear in the Geneva Conventions, the Convention Against Torture, and the International Civil and Political Rights Covenant. The United States is a party to all three. It is true that Israel’s Supreme Court in a very powerful decision upholding the prohibition on torture and cruel treatment did suggest that an individual interrogator might be able to mount a defense of necessity, but this part of the decision is against the clear weight of authority. It clashes with the fundamental reason for drafting the 1984 Convention Against Torture (CAT)–at that time no one doubted that torture as sport or cruelty was prohibited. The CAT was intended to clear away any last doubts that governments had the right to use torture or cruel measures to seek information for national security or to combat crime.
Even without the CAT, there is no necessity defense for coercive interrogation. Coercive methods are known to be unreliable–so how can they be “necessary”? Plus, the only interrogator who can have the intent to use coercion because it is “necessary” would have to be trained in the techniques. Otherwise, he cannot reasonably believe he will get better results than with the non-coercive methods in which we train our interrogators. Mukasey may want to preempt investigations or prosecutions by arguing that government officials received legal advice and so long as they acted in good faith on the basis of that advice, they will have a defense. He may be trying to send the message that the lawyers acted in good faith, too, in providing the advice. That’s a judgment that could only be made on the basis of all the facts and circumstances surrounding the opinions, but they remain clouded in secrecy, and Mukasey does not claim to have studied these facts and circumstances–he merely says he is “not aware” of facts that would suggest anything else. But Congressmen Conyers and Nadler immediately cited to him plenty of facts and circumstances that suggest otherwise, of which Mukasey is certainly aware. All of this makes Mukasey’s rush to a legally unsupportable judgment painfully obvious.
As I told one former CIA lawyer who asked me about the “good faith” defense in these cases, the quality of the memos is so poor, the process of producing them so at odds with government standards, and the general knowledge is so high that torture and cruelty are prohibited, that it difficult to see how good faith could possibly provide a defense.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Years ago, I lived in Montana, a land of purple sunsets, clear streams, and snowflakes the size of silver dollars drifting through the cold air. There were no speed limits and you could legally drive drunk. My small apartment in Missoula had little privacy. In order to write, I rented an off-season fishing cabin on Rock Creek, a one-room place with a bed and a bureau. I lacked the budget for a desk. My idea was to remove a sliding door from a closet in my apartment and place it over a couple of hastily cobbled-together sawhorses.
Amount by which a typical good-looking U.S. worker will out-earn a typical ugly one over a lifetime:
A Japanese inventor unveiled a new invisibility cloak that uses a material made of thousands of tiny beads called “retro-reflectum.”
A couple at a Cracker Barrel restaurant in Greenville, South Carolina, left their waitress a note telling her “the woman’s place is in the home,” in lieu of a tip.
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"She never thanked me, never looked at me—melted away into the miserable night, in the strangest manner I ever saw. I have seen many strange things, but not one that has left a deeper impression on my memory than the dull impassive way in which that worn-out heap of misery took that piece of money, and was lost."