I don’t write about torture as much as I used to. But I do think a little clarification of what the law is, and what the obligations of Eric Holder and Barack Obama under the Convention Against Torture are, is in order. Further, if Mr. Holder, as expressed, wants to prosecute those who went beyond the good faith interpretation of the Department of Justice memos, then with all due respect, Mr. Attorney General, Richard B. Cheney should be a target of those investigations.

From the interview with Chris Wallace:

Chris Wallace: Let me ask you, you say you’re proud of what we did. The Inspector General’s report, which was just released, from 2004, details some specific interrogations: Mock executions. Uh, one of the detainees threatened with a handgun and with an electric drill. Uh, waterboarding Khalid Shaykh Mohammad 183 times. First of all, did you know that was going on?
Dick Cheney: I knew about the, ah, waterboarding. Um, not specifically in any one particular case but as a general policy we had approved. The fact of the matter is, the Justice Department reviewed all of those allegations. Um, several years ago. They looked at this question of whether or not somebody had an electric drill in a, uh, an interrogation session. It was never used on the individual, or they brought in a weapon, never used on the individual. The judgment was made then that there wasn’t anything there that was improper, or illegal, with respect to the conduct…

Point by point:

  • Mock executions, threatening with a handgun, threatening with an electric drill. Title 18, §2340: "As used in this chapter,[...]2) "severe mental pain or suffering" means prolonged mental harm caused by, or resulting from — [...](C) the threat of imminent death; or (D) the threat that another person will imminently be subject to death,…"
  • Waterboarding. Ruled multiply by the U.S. government and international criminal tribunals, the European Court of Human Rights, and assessed by the Special Rapporteur on Torture, the Committee Against Torture, the International Committee of the Red Cross, and in U.S. courts, to be torture under both the meaning of the Convention Against Torture, and the meaning of common Article 3 of the Geneva Conventions.
  • With respect to the OLC memoes, both by John Yoo/Jay Bybee, and by Steven Bradbury, prohibit acts which would constitute a credible threat of imminent death to the prisoner. Quoting from Yoo/Bybee 08/01/02 on Abu Zubaydah, page 11-12:

    We next consider whether the use of these techniques would inflict severe mental pain or suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or suffering as "the prolonged mental harm caused by or resulting from" one of several predicate acts. 18 U.S.C. § 2340(2). Those predicate acts are: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)(A)–(D). As we have explained, this list of predicate acts is exclusive. See Section 2340A Memorandum at 8. No other acts can support a charge under Section 2340A based on the infliction of severe mental pain or suffering. See id. Thus, if the methods you have described do not either in and of themselves constitute one of these acts or as a course of conduct fulfill the predicate act requirement, the prohibition has not been violated. See id. Before addressing these techniques, we note that it is plain that none of these procedures involves a threat to any third party, the use of any kind of druges, or for the reasons described above, the infliction of severe physical pain. Thus, the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject’s position. See id. at 9.[my bold at end]

    Clearly, the OLC, whatever else they did or didn’t do, never explicitly or implicitly, approved any technique or procedure that would be reasonably interpreted as a threat of imminent death.

  • As to waterboarding, the OLC memoes explicitly state that they are based on the information provided to the OLC by the CIA concerning the safety of the technique and it’s use, the length of individual sessions, and the length of the total interrogation comprising multiple sessions. The CIA-OIG report, footnotes at pp.21-22, makes clear that this was not complete information with respect to safety, and therefore with respect to whether or not a "reasonable person" would interpret the technique as a threat of imminent death:

    According to the Chief, Medical Services, OMS [Office of Medical Services] was neither consulted nor involved in the initial analysis of the risk and benefits of the EITs, nor provided with the OTS report cited in the OLC opinion. In retrospect, based on the OLC extracts of the OTS report, OMS contends that the reported sophistication of the preliminary EIT review was exaggerated, at least as it relates to the waterboard, and that the power of this EIT was appreciably overstated in the report. Furthermore, OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe. [my bold]

    So all three cases mentioned by Chris Wallace specifically involve threat of imminent death to a reasonable person, and Dick Cheney specifically in the quote states he was aware of the waterboarding and it was a policy he (and others) approved.

  • Mr. Cheney’s contention that the review concluded that there was nothing illegal or improper is incorrect. It concluded that a prosecution should not be pursued. Conflating those two is the classic Ollie North defense: They didn’t put me in jail so they must have concluded it was legal.

With respect to threats of imminent death, Steven Bradbury has additional opinions, and does conclude about waterboarding (5/10/05 memo at (pdf page) 43),

The sensation of drowning that we understand accompanies the use of the waterbaord arguably could qualify as a "threat of imminent death" within the meaning of section 2340(2)(C) and thus might constitute a predicate act for "severe mental pain or suffering" under the statute. Although the waterboard is used with safeguards that make actual harm quite unlikely, the detainee may not know about these safeguards, and even if he does learn of them, the technique is still likely to create panic in the form of an acute instinctual fear arising from the physiological sensation of drowning.

Although the redoubtable Mr. Bradbury goes on to debate whether or not the effects are prolonged enough to qualify as "prolonged harm", and concludes against it, based on some absolutely ludicrous interpretations of the dangers involved, the people experimented on, and so forth, it is quite clear that the dangers of waterboarding as a threat of imminent death were known when Mr. Cheney approved of its use, that in no way, shape or form did the OLC, even in its most reprehensible incarnations of Yoo and Bradbury express to the CIA that it was ever permitted to threaten imminent death or cause prolonged mental harm. Mr. Cheney, on the other hand, expressly took credit for the program, expressly approved of the explicit threats to Chris Wallace, and expressly approved of the waterboarding of Khalid Shaykh Mohammad, even exceeding the guidelines of the OLC. Clearly, Mr. Cheney fits the criteria expressed by Mr. Holder in all respects, on not remaining within the guidelines of the OLC in good faith.

So what should happen? A credible allegation of torture has been made, there are victims of torture that are available for testimony, and witnesses and documents. The name of at least one perpetrator, Richard B. Cheney, is known, as are his whereabouts and activities. The Convention Against Torture is clear on procedure, the steps are listed in a clear, temporally ordered, sequence there:

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

In other words, Mr. Cheney is to be taken into custody on the allegation of torture, at the beginning of the proceedings, before the preliminary inquiry, not at the end, and foreign governments are then to be notified as to whether or not the arresting state is going to "exercise jurisdiction", i.e. conduct investigation, prosecution, punishment, and reparations. And there is nothing in the CAT specifying that special procedures are to be taken for former members of the fourth branch of government, regular guests on Sunday talk shows, or people whose daughters claim "political controversy" or "policy debate" on TV.
U.S. Marshals, your duty is clear.