Conyers, of course, has been pressing for a “National Commission on Presidential War Powers and Civil Liberties,” composed of experts outside government “to investigate the broad range of policies of the Bush administration that were undertaken by the Bush administration under claims of unreviewable war powers.” Unlike Sen. Pat Leahy’s (D-Vt.) proposed “Commission of Inquiry,” the House bill, which has 27 cosponsors, would not provide immunity for officials who broke the law.

Today, Conyers praised President Obama, among others, for releasing the OLC memos yesterday, but emphasized that “critical questions remain.”

“As Americans digest the awful revelations in the Bush-era OLC opinions, our nation faces a critical choice – what will we do to ensure that abuses like those described in these memos are never again ordered by our leaders or justified by our lawyers?  To me, the answer is obvious.  We must have a full investigation of the circumstances under which these torture methods were created, approved, and implemented, preferably by an independent commission as I previously proposed.  And if our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify the torture, they should be criminally prosecuted.  It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred.

Responding to an editorial in The Wall Street Journal today by former CIA Director Michael Hayden and former Attorney General Michael Mukasey criticizing the release of the memos, Conyers said:

To take just one example, today two former Bush Administration officials again took to the papers to justify these practices by claiming that the interrogation of Abu Zubaydeh had been a clear success and had led to the disruption of terrorist plots. Yet just two weeks ago, former Bush Administration officials who monitored this interrogation told reporters that ‘not a single significant plot was foiled’ as a result. The American people deserve a non-partisan answer to such fundamental questions.

Conyers also joined the growing chorus of advocates who criticized the decision to grant immunity to CIA officials who were following orders authorized by the legal memos:

Finally, I do not understand the statements by the President and the Attorney General yesterday on the issue of potential prosecutions to address the senior officials and government attorneys who crafted and approved these programs.  Further, yesterday’s statements did not address the legality of any conduct that exceeded even the minimal boundaries established by the OLC memos, or any interrogations that occurred before legal guidance was provided.

The Obama administration has acknowledged that that’s true, as Marc Ambinder writes in The Atlantic. But given the wide berth offered the CIA by the OLC lawyers, as a practical matter, most CIA officers seem to be pretty much off the hook. Whether other Bush administration officials will get off as easily remains to be seen.

So how do you determine what “shocks the conscience”? Whose conscience applies? Steven Bradbury’s? John Yoo’s? Yours or mine?

Not surprisingly, the memo says that there is no specific test for shocking the conscience, but that the case law is best read to require a determination of whether the conduct “is arbitrary in a constitutional sense” and involves conduct “intended to injure in some way unjustifiable by any government interest,” quoting a 1998 Supreme Court case, County of Sacramento v. Lewis.

So if the executive believes it has an interest in causing the injury, and CIA officers aren’t doing this simply for their own sadistic pleasure, that means it’s okay?

The most brutal torture is almost always undertaken for some purpose — usually to extract information — rather than purely out of sadism. Does that make it legal?

In its memo, the Office of Legal Counsel seems to say that it does:

Given that the CIA interrogation program is carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot ‘be said to shock the contemporary conscience’ when considered in light of “traditional executive behavior” and “contemporary practice.”

I don’t know about you, but the techniques described in these memos — repeated waterboarding (drowning); stress positions; slamming a prisoner’s head repeatedly against a wall by the collar; 180 hours straight of sleep deprivation while on a “calorie-restricted diet” and in shackles; and being locked in a tiny “confinement box” with insects crawling around — that shocks my conscience.

Anyone else?

According to Steven Bradbury, however, “[a]lthough the walling technique involves the use of considerable force to push the detainee against the wall and may involve a large number of repetitions in certain cases, we understand that the false wall that is used is flexible and that this technique is not designed to, and does not, cause severe physical pain to the detainee.”

Sure, there the collar might hurt, but ” any physical pain associated with the use of the collar would not approach the level of intensity needed to constitute severe physical pain.”  Similarly, “we do not believe that the physical distress caused by this technique or the duration of its use, even with multiple repetitions, could amount to severe physical suffering . . . ”

So how exactly does a lawyer in the Office of Legal Counsel in Washington draw that conclusion?  Do any of them try it out?

Maybe the conclusion comes from the opinion of “the medical and psychological personnel [who] are present or observing during the use of this technique…”

1) The Convention Against Torture does not apply outside the United States, or anywhere where the US does not have de facto control: hence, it does not apply to CIA “black sites”, which are in other countries. Therefore, the CIA can torture people there and not have to worry about the law.

2) However, even if the CAT did apply, it only applies if the techniques “shock the conscience” in a constitutional sense. Because the methods are derived from SERE techniques which are part of U.S. military training (albeit training for soldiers to resist torture by foreign captors), and because the techniques are “carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary harm,” the OLC concludes that they do not “shock the conscience.”