I don't know about you, but I really don't see what's so vague about the so-called torture memos and why people aren't in jail yet. The historic precedence has been set for waterboarding prosecutions and Dick Cheney boasts that they waterboarded prisoners. When did one plus one stop equaling jail time?
In 1947, the United States prosecuted and imprisoned Japanese officer Yukio Asano for war crimes subsequent to his waterboarding of a U.S. civilian. Senator Teddy Kennedy has reminded his colleagues in a 2006 debate what happened back then: "Asano was sentenced to 15 years of hard labor. We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II.”
When American soldiers utilized the practice against Vietnamese captives in 1968, the Washington Post ran a front-page photo and deemed it a “fairly common” practice. After the story broke, an Army investigation ensued, though the use of this suspect technique did not abate. Navy SEALs and Army Special Forces used in in training exercises – that whole SERE thing we keep hearing about – to toughen up our soldiers so that they are ready for what the savages might do.
Fast forward to 1983. President Ronald Reagan... you may have heard of him... had his Department of Justice prosecute Texas sheriff James Parker and three of his deputies for the waterboarding they participated in. The sheriff got 10 years in the pokey, with the deputies serving four each.
Despite their existence, these cases were not cited as precedence by any of the torture memo authors as they sought to give the Bush Administration legal cover for the enhanced interrogation methods already underway. Human rights attorney Scott Horton said, “To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the '20s, a series of prosecutions at the [post-World War II] Tokyo Tribunal (in many of which the death penalty was sought) and another court-martial in 1968. These precedents could have been revealed in just a few minutes of computerized research using the right search engines. It's hard to imagine that (John) Yoo and (Jay) Bybee didn't know them. So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis.”
In fact, the 1987 Convention Against Torture deems it criminal for any “person acting under the color of law” 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.”
It all seems so clear. Again I ask, why aren't people in jail yet? The Office of Professional Responsibility thinks the Bybee-Yoo crew should perhaps be disbarred for their lapses in judgment, but that's really about it. Of course, Attorney General Eric Holder is where the buck will stop and he has yet to render his opinion. So there's still a teeny tiny glimmer of hope.
Rachel Maddow and Newsweek's Michael Isikoff broke it all down last night:
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