CIA Interrogation Program: Why Prosecution would be unfair

This will be a brief discussion of why I at least am against prosecution for the CIA Program.

First we need some background understanding. 

The story begins early in the "war on terror", after the attacks everyone assumed we would be hit again and there was great fear.

Six days after the Sept. 11 attacks, President Bush signed a sweeping finding that gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world.

This is fine, and what we should do, but after 9/11 it is clear that the Bush administration wanted the law pushed to their limits, the administration wanted maximium latitude and authority to carry out the war on terrror.

Second we will need to discuss the Janurary 2002 Bybee memo, and the office of the OLC. here is where the story gettings interesting. The thing about an OLC memo is its force

The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. The decisions of the Office are binding on all executive agencies.

The most important part is that highlighted party, unless overruled by the President, Attorney General or the Deputy Attorney General, if the OLC says it in a memo, then its Law for executive agencies. 

Thus we are at a point, the Bush administration wants to push interpretation of the law to the limits to fight the war on terror and asks the OLC for advice, the OLC  responds with the Bybee memo which, being an OLC memo, is now binding on all executive agencies, and what does it say?

he memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose)

as is pointed out

When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”

But what does the Fifth, Eighth and Fourteeth Amendments mean to a non U.S citizen in another country? what type of CID did the fathers intend to prevent the U.S from doing halfway across the world? A loophole may or may not have been created for the CIA. it goes as follows. 

 Treatment of Detainees

This we will break down now. What the CIA was thinking for sure obviously we don't know, but as a current Constitutional Law professor and former CIA prosecutor discusses here. 

The Bush administration's stated policy against torture is consistent with the Consititution and with state and federal statues. Even so, for several years after 9/11, a loophole may have allowed the CIA to conduct interrogations that were severe but short of torture [Bybee Memo] - according to the administration's definition. This loophole depended on a distinction between "torture" and "cruel, inhuman, and degrading treatment" (CID), two related concepts from the Convention Against Torture. Even before torture was made a federal crime, under the Constitution and other statutes, both torture and CID were illegal for interrogations within the United States. The federal statute, which was passed after the United States ratifed the Convention Against Torture, applies to torture outside the United States, making it a crmie if the offender is a United States national, or is present in the United States. This statute does not mention CID.  Therefore, in interrogations that the CIA conducted on non U.S citizens outside the United States, CID may have continued past the December 2004 Office of Legal Counsel memorandum. The CIA, unlike the Defense Department, is not controlled by the strict standards of the Uniform Code of Military Justice. As a result, the CIA may have operated in a gary zone below its definition of torture but beyond what the criminal justice system permits in the questioning of suspects and defendants. For a while, the CIA may have felt safe to use CID, but not torture, on suspected terroirsts who were afforded fewer rights than American citizens. 

The 2004  OLC memo "Levin Memo" stated in footnote 8 

While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conlcusions would be different under the standards set forth in this momorandum

as we noted the OLC memo is binding unless overruled, beyond describing the limitation of behavior for interrogators, the 2002 Bybee Memo also concluded that Common Article III did not apply to the U.S conflit with al Qaeda. 

Here is the point of a legal gray area. The OLC memo says that Common Article III of the Geneva Convention doesn't apply espeically since it states 

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Thus before 2006 the OLC had interpreted laws and statues to say that the CIA could go pretty damn far, the problem is in 2006 the Supreme Court decided Hamdan v. Rumsfeld. This is the case that found Bush's military commissions were not sufficient and couldn't be used to try Hamadan for violating the laws of war, since the commissons themselves did not meet the standards of the UCMJ and Common Article III. in its decision the Supreme Court stated that Common Article III applied to ALL aspects of the U.S conflit with al Qaeda.

Problem with Common Article III

The problem with Common Article III? its vague, (yes this is what all that back and forth with Bush when he called the geneva convention vague was about) 

as we discussed thanks to the OLC memos and their lawyers very agressive interpretation of laws, the CIA had acted under 4 years of belief that Common Article III did not apply and that CID was ok up to an extreme point. now that Common Article III appiled so did 3 important provisions

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

Here was the problem what does "outrages upon personal dignity, in particular humiliating and degrading treatment" mean? and whose perspective? the resonable person? al Qaeda? the terrorist? the reasonable terrorist? reasonable al Qaeda terrorist? Would not allowing a Muslim detainee to pray be an outrage upon personal dignity? its one thing to debate, but when you have been operating for 4 years, and must continue to do so, you want a little bit more guidance then "outrages upon pesonal dignity" espeically since it is a War Crime to violate ANY part of the Geneava Convention and the "following orders" (OLC Memo) is not an excuse. 

and we all know what that means as, Michael points out at the end of his discussion of the 2002 OLC memo

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

Indeed and there is why I will be against any repeal of the Military Commissions Act of 2006  (precluding the widest application of Common Article III). The problem is the MCA can easily be deemed unconstitutional or change, and there is no stature of limitations for War Crimes. thus any CIA officer at the bottom who trusted an OLC memo they were never allowed to see, may or may not have commited War Crimes, which they could easily be prosecuted for in 20 years if the U.S Government in order to make some of the more liberal Americans happy ever decides it needs to fully prosecute torture. 

at the very least, I don't support American's being proseucted for war crimes, because they were trying to do their job, and because some lawyers may have pushed their definitions and interpretations of law a little to hard.