You might think that torture is actually presently legal in the U.S., given all the efforts by Bush and his Attorney Generals to make it so. And maybe you just don’t care that it is– or you approve– because you are a God-fearing patriotic American and you don’t take bullshit from foreigners– whatever— I don’t care. Jesus loves you, whatever, because you approve of the use of torture, and you really can’t remember or think of or imagine any reason why that would make you less of a human being than, say, believing in witchcraft or astrology. Whatever.
Back to my point: I don’t believe torture is, technically, “legal”. It is, in fact, quite illegal, no matter what Bush says it is. Then why hasn’t anybody been arrested? Who would arrest who? Because Bush is in command of the only apparatus that can enforce the law: the Attorney General’s Office and the FBI (which is accountable to it) and he has ordered it not to.
[added October 22, 2008: if a New York City cop on the beat, for example, stumbled into a group of men treating an individual the way they are, in fact, treating the detainees in Guantanamo, he would surely make an arrest and lay charges. Nobody would or could excuse the crime with a “finding”.]
If Bush or his Attorney-General issues a “finding” that torture is legal (he calls it “enhanced interrogation techniques” but no court is so stupid as to not see through that), and thereby instructs federal officials to abide by that “finding”, he hasn’t really changed any aspect of the law. What would it take to activate the apparatus on behalf of the courts? Well, how about a new executive who believes in the constitution?
Take for example any prisoner being held currently in Guantanamo, who had previously been tortured, either through rendition, or by CIA officers at locations outside of the U.S. Bush has succeeded in blocking this individuals access to any court with the power to respond to his circumstances with directives that will actually be obeyed by Federal agencies. At the moment, Bush simply ignores any legal motions he doesn’t like and then obfuscates.
Now suppose a new Chief Executive– a new President– instructs the new Attorney General (John Edwards?) to investigate whether anybody involved in the handling of prisoners by American forces or intelligence agencies or proxies has broken the law, or violated the rights of these prisoners.
I think about this a lot. I can imagine that nothing will happen, if the new President turns out to be gutless and decides that he can live with simply stopping any more torture from happening. That’s hard to imagine, however, because the lawyers for all of the prisoners being held by agents of the U.S. Federal Government will be clamoring for due process and habeas corpus and dozens of other constitutional rights we all used to think Americans treasured dearly. And I can’t see this new President doing what Bush did, which is, instructing his staff to find ways around the courts, so we can suppress the rights of these individuals. [Update: that is, in fact, exactly what Obama did.]
So imagine instead that President Obama (or Clinton) allows the attorney general to investigate and he finds out that there has been some torture going on… and he decides that his interpretation of the constitution is that torture is never allowed.
Just imagine.
[2011-03: of course, it didn’t happen. Odd, but not really surprising now that I think about it. Would a politician who was seriously intent on enforcing the law survive the primary process in the U.S.? I doubt it. ]