Over the weekend, news reports revealed that terror suspects are being held in a secret part of the prison at that Bagram air base for interrogation. They’re denied access to the International Committee of the Red Cross, and some have claimed they’ve been subjected to abuses, including sleep deprivation, sexual humiliation and other maltreatment similar to the sorts of interrogation abuses that occurred during the Bush administration.

Human Rights First is now calling for a full investigation of the so-called “black prison” at Bagram and the alleged abuses there.

“These allegations raise serious questions about whether reforms initiated by the Obama administration are being properly implemented and about whether they are sufficient to end torture and detainee abuse,” the organization wrote in a letter sent yesterday to Afghanistan Commander Vice-Admiral Robert Harward. “If substantiated, the alleged conduct of detaining authorities is in violation of U.S. law, including the Detainee Treatment Act, and the 2006 Army Field Manual, which is applicable to all U.S. government agencies. It is also in violation of international law, including Common Article 3 of the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture.”

The letter asks that the results of the investigation be made public and that the perpetrators of abuses be held accountable.

“They’ve made it really clear that the president right now is not supportive of a public commission of inquiry,” Killmer said in a phone conversation this morning.

Killmer has had better luck in Congress, where at least some Representatives support creating a House Select Committee to investigate torture. Although that would be more political than an independent commission, he said, at least it’s something. “There are a significant number of members of the House who know this isn’t done,” says Killmer, whose group has had more than 60 meetings with House members on the issue since June.

The religious campaign has made some headway on related issues, working with Rep. Rush Holt (D-N.J.), chair of the House Select Intelligence Oversight panel, to convince Congress to pass a bill that would require the taping of all interrogations of detainees in U.S. military custody. The House passed the bill last week as part of the 2010 Defense Authorization Act. It could be voted on by the full Congress next week.”Our constituents understand the need for videotaping interrogations,” says Kilmer, “and the videotapes have to be protected so they’re an ongoing part of our history. It’s one way of making sure it doesn’t happen again.”

The religious groups also hope to achieve a codification of the terms of President Obama’s executive order mandating that all interrogations follow the rules of the Army Field Manual, and that the U.S. basically follows the “Golden Rule” when it comes to interrogations: we don’t do to others what we wouldn’t want them to do to our soldiers.

Still, Killmer said, codifying this for the future isn’t enough. After all, we had a Convention Against Torture and that still didn’t stop the U.S. government from torturing people.

In addition to a commission that would expose everything that happened and why, Killmer and other religious leaders are exploring the possibility of asking the government for an apology.”I think it’s extremely important,” says Killmer. Other countries have taken that step, such as Canada, which apologized — and paid $10 million – to Canadian citizen Maher Arar who, with the help of bad intelligence from Canada, was sent by U.S. authorities to Syria for interrogation under torture.

“This was wrong behavior,” says Killmer of the entire U.S. “enhanced interrogation” practice. And an apology “would help grow the moral consensus that torture is wrong,” he says, something he assumed existed before 2001, but now isn’t sure.

“Dick Cheney gets more credence than I would have imagined,” says Killmer. “The American people are still wrestling with this stuff.”

Killmer and his colleagues were dismayed when a Pew Research Center poll last spring found that a majority of Catholics and even evangelicals believe that torture is sometimes necessary. “That says we have a lot to do,” says Killmer. His group has put together this short interfaith video on U.S.-sponsored torture which they plan to show at churches, synagogues and mosques across the country, in part to explain that yes, torture really is a violation of all the dominant religions in the United States, and to encourage believers to join the anti-torture campaign.

Whether religious support is ever going to be strong enough to get that official apology is another matter. Although the U.S. has apologized for some things in the past — the Japanese internment during WWII, and slavery — in both cases, it came many decades after the deed. Killmer is cautiously hopeful: “It would be terrific if this could happen much more quickly.”

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

But then he went on to say, as Glenn Greenwald tweeted yesterday, that “I think the interrogations were in violation of the Geneva Conventions and the Convention Against Torture that we ratified under President Reagan.”

Now, once you acknowledge that the CIA, at the direction of senior cabinet officials, violated international humanitarian law that requires the United States to prosecute the perpetrators, the only way to justify not investigating is to say that the executive branch of government is above the law — or, put more pragmatically, that it’s politically too messy to investigate senior leaders in the U.S. government.

Republicans didn’t hesitate to investigate when it involved Democratic President Bill Clinton, however, or to bring charges against him for lying about a personal matter. And Congress didn’t turn its backs on the Iran-Contra scandal during the Reagan administration, which led to 14 senior officials charged with crimes, and 11 convictions. And of course the Watergate affair led to the indictment and conviction of senior Nixon administration officials, and impeachment charges against the president. Congressional investigations of sitting and past administrations are far from unprecedented.

So how does McCain explain why we ought to forget the whole torture problem — which led to the deaths of a still-unknown number of detainees in custody, some of whom the CIA still can’t account for — even as he acknowledges that it violated international treaties that legally obligate us to prosecute?

“I think these interrogations helped al-Qaeda recruit,” McCain said yesterday, adding: “the damage that it did to America’s reputation in the world we’re still on the way to repairing.”

Even setting aside the legal requirements, as a practical matter, a public acknowledgment and investigation would seem to be the only way to repair that damages.

As McCain put it: “This is an ideological struggle as well as a physical one.”

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Greg Miller and Josh Meyer of The Los Angeles Times on Sunday confirmed earlier reports that Holder has reluctantly come around to thinking that he can’t avoid the fact that torture occurred at the hands of U.S. officials, and that U.S. and international law requires an investigation. Holder is reportedly only considering cases where CIA interrogators went beyond the rules established by the Bush administration’s lawyers, rather than investigating the legality of those rules themselves. But as I’ve written before, it’s not clear where such an inquiry would logically end. Investigating CIA functionaries low on the totem pole — which would involve re-opening cases previously dismissed by the Bush administration — would ultimately require looking into the orders they received from their superiors.

Previous proposals to create commissions to undertake broader inquiries — from Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) — have so far failed to win majority support in Congress.

According to The LA Times, CIA officials are already nervous about Holder’s impending probe, with some even putting off their retirement or plans to leave the agency so they can maintain access to classified information they might need for their defense, or argue that as government officials they’re immune from suit.

“Once you’re out, it gets a lot harder,” a retired CIA official told The Times.

But the President’s speech seemed primarily aimed at stopping torture abroad, which is presumably why he’s called on the State Department to get involved. But what about torture committed by our own government?

I know some are still debating which techniques constitute “torture” — such as in this scolding piece from The Washington Times — but because the Convention Against Torture, which the president was commemorating, prohibits torture AND cruel, inhuman and degrading treatment, as I’ve noted before, at this point we can put that debate aside. There’s little question that the sort of techniques engaged in by U.S. government officials — whether partial drowning, “walling,” weeks of sleep and food deprivation or locking detainees inside a tiny box with what were believed to be deadly insects is, at the very least, cruel and degrading.

It’s odd, therefore, as Marcy points out, to see the president — who vowed on his third day in office to end torture — refusing to prosecute those who engaged in acts that clearly violate the anti-torture convention he commemorated on Friday.

As Marcy put it: “Mr. President, the agency that must take the lead in stopping torture is the Department of Justice. The effective policies for stopping torture you’re looking for? They start with prosecuting torture.”

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The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.

After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:

Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.

Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?

Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.

As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.

Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:

“[T]he 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.”

In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.

Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban?  Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?

If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.

UPDATE: For more on the misleading Times’ story and a close reading of the Jim Comey e-mails, check out these excellent posts from Glenn Greenwald and Marcy Wheeler.

2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute.  After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.

My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”

But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.

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Specifically, he said: “I believe existing institutions are strong enough” such as Congress, which can conduct hearings, and “the Department of Justice and our courts can work through any violations of our laws and miscarriages of justice.”

Though he went on to decry the tendency in Washington “to point fingers at one another,” a prosecution — and particularly the appointment of an independent prosecutor — would remove from the political process the question of whether previous administration officials broke the law, and put it right back where it belongs: in the realm of a criminal investigation.

After all, Condi isn’t stupid; is this just some alternative reading of the law that we’d all overlooked? Might those creative legal minds at the Office of Legal Counsel have somehow been able to read the U.N. Convention Against Torture to mean that torture is illegal, unless the president in some extreme circumstance says it’s not?

Well, according to my review of the text of the convention, approved and sent to the Senate for ratification by President Ronald Reagan himself, and of the implementing statute passed by Congress and signed by the president, there just isn’t any such exception.

Article I of the treaty defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Okay, nothing in there about “unless the president authorizes it.”

Here’s another piece of the law that Condi may want to be mindful of, given her statements yesterday about how exceptionally scary it all was after the attacks on Sept. 11:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

and

An order from a superior officer or a public authority may not be invoked as a justification of torture.

What’s more, contrary to the arguments of former Office of Legal Counsel head Steven Bradbury and his crew, the treaty applies not only within the actual territory of the country, such as the territorial United States, which is how the recent OLC memos described it, but “When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State.”

Now if it applies on a ship or aircraft registered to the United States but in some other countries’ waters, then surely it would apply to a clandestine CIA prison, which is by definition controlled by the United States, no matter where that prison is located.

But just to clarify, the United States, to implement the CAT, enacted 18 U.S.C. §§ 2340 and 2340A, which specifically prohibit torture occurring outside the United States:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

So far, then, the statute not only doesn’t include an “unless the president authorizes it” exception, but suggests that if the president authorized it, he’s guilty, too.

Now here’s where the Convention Against Torture causes real trouble, not only for the former Bushies but for the Obama administration, which is still ignoring these key passages of the treaty:

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.

2. Such State shall immediately make a preliminary inquiry into the facts.

And Article 7:

1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

You know, it’s just looking worse and worse for Condi and President George W. Bush, not better.

Then again, you may have heard that when President Reagan signed the Convention Against Torture, the Senate did add certain reservations.  So I wondered if maybe the special “presidential authorization” exception was in one of those.

Nope.  The reservations, as explained in this memo from the Congressional Research Service, were that the United States would have to adopt a law to implement the Convention (which it did), and that “With respect to Article 16 of the Convention, the Senate’s advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual, and inhuman treatment or punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution.”

The Eighth Amendment, of course, bars “cruel and unusual punishment,”  and restraints on pre-trial interrogation are embodied in the due process clauses of the Fifth Amendment, protecting detainees from executive abuses that “shock the conscience.” (This explains the long discussion in the May 2005 memos about whether the CIA’s techniques “shock the conscience.”)

I won’t bore you further with statutory language, but I thought it was worth the exercise to go through the relevant laws and see if maybe, just maybe, Rice was actually reaching out to some hidden provision in the law that could possibly justify her comments to the Stanford students — which mimicked the infamous declaration by Richard Nixon that “when the president does it, that means it is not illegal.”

Nope, there’s nothing there.

[All emphasis in this post is mine.]

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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?