While that sounds good, remember that the Detainee Treatment Act was interpreted by the Bush administration’s Justice Department to allow such “enhanced interrogation techniques” as sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – either alone or in combination. The new “protections” in the MCA amendments are therefore not all that reassuring.

The amendments also continue to allow judges to admit hearsay evidence, even though the source of the evidence is unavailable for cross-examination by defense counsel. Classified evidence can also still be used against a defendant, although he does not have the right to see it. Protections were added, however, so that the procedures used to protect classified evidence essentially mirror those used in a civilian federal court.

This post has been updated.

The Washington Post notes today in a story setting out Cheney’s arguments that an Aug. 31, 2006 memo from Steven Bradbury, then-acting assistant attorney general in the Justice Department’s Office of Legal Counsel, said his legal conclusions relied in part on assurances from CIA general counsel John Rizzo that “interrogations conducted pursuant to the program have led to specific, actionable intelligence about terrorist threats to the United States and its interests.”

Rizzo may well have said that, but even if it were true, that doesn’t make the techniques used legal. And it certainly doesn’t bolster Cheney’s argument now that an investigation is not warranted.

A look at those legal memos of 2006 and 2007 released on Monday reveal that the government’s lawyers went out of their way to twist and turn and manipulate the applicable law to approve the techniques that they were already using, notwithstanding the fact that by 2006, the law had changed. Congress had specifically outlawed abusive interrogations, and the Supreme Court had ruled, contrary to the Bush administration’s claims, that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees.

So much for former Attorney General Alberto Gonzales’s idea that the Geneva Conventions were a “quaint” relic of the past.

In Hamdan v. Rumsfeld, the court ruled that the basic protections apply to all prisoners, even in an unconventional international conflict such as the one against al-Qaeda and the Taliban. And Congress, which by that time had grown concerned about reports of abuse and deaths of detainees in U.S. custody, in 2005 passed The Detainee Treatment Act, or DTA, prohibiting the “cruel, inhuman, or degrading treatment or punishment” of detainees and providing for “uniform standards” for interrogation.

Oddly, however, the arguments of the Justice Department’s lawyers justifying the techniques in existence remained essentially the same.

Take the July 20, 2007 OLC opinion on interrogation techniques, released for the first time on Monday. The memo defines techniques like prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while forced to stand, shackled, in diapers (and eventually in one’s own feces); which can be used in combination with restriction to a 1,000-calorie-a-day diet (half the normal minimum) and “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”; as not violating Congress’s ban on “cruel, inhuman or degrading treatment” and not violating Common Article 3’s requirement that prisoners be treated “humanely.”

How does it do that? Largely by saying that to violate the laws, the techniques must cause “serious” mental or physical harm, and the lawyers just didn’t think that the sort of mental or physical pain involved here was “serious” enough. That’s because, just as the lawyers defined “waterboarding” in the past to not cause serious harm because the harm was not prolonged for years — or at least it wasn’t when used on soldiers undergoing SERE training — this sort of prolonged-standing, half-starved sleep deprivation in diapers wasn’t going to cause “prolonged” or “severe” harm either. I don’t know how you prove that, but the lawyers seem to have just decided it.

“It’s an attempt to analyze the interrogation techniques under a different sets of norms,” American Civil Liberties Union national security project lawyer Alex Abdo explained to me yesterday. “But it’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the DTA and the Supreme Court’s decision in Hamdan.”

“At the end of the day, it seems fairly commonsensical that you can’t beat up someone for information, and yet this memo contemplates that,” Abdo says. “It’s dodging bullets fired at the CIA by Congress and the Supreme Court.”

Cheney thinks this and other memos dodged those bullets effectively, and the investigation should end there. But for those who find it cavalier the way the Justice Department decided that obviously painful, physically destructive and likely terrifying interrogation techniques were not “serious” enough to fall under the prohibitions against cruel, inhuman and degrading treatment, then who ordered those techniques to be used, how they were used and why they were approved might merit further inquiry.

President Obama’s decision yesterday to grant immunity to the CIA officers who carried out the plan has now laid the responsibility for the entire program of “extreme interrogations” squarely in the lap of the government’s lawyers.  That means former Attorney General Alberto Gonzales and the Justice Department’s Office of Legal Counsel — the legal brain trust for the White House and the Bush administration’s senior policymakers. How exactly those lawyers came to write the memos that granted legal authority to torture prisoners, in violation of well-established domestic and international law, is now the missing piece of the puzzle.

Were they instructed by the White House to reach particular conclusions? Or were they engaged in a good-faith legal analysis? These questions are critical to determining whether their conduct — or anyone else’s — was criminal.

So far, President Obama and Attorney General Eric Holder, however, have shown no inclination to open a criminal investigation of the matter, despite the many calls from human rights and civil liberties groups to appoint an independent prosecutor. Both have said repeatedly that they want to look forward rather than backward. As President Obama said in his letter to the CIA employees yesterday:  “This is a time for reflection, not retribution. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”

That cannot be the end of the inquiry, however; Congress has an important oversight role to play.  Yesterday, Sen. Patrick Leahy (D-Vt.) acknowledged that when he  reiterated his call for a “Commission of Inquiry” to “take a thorough accounting of what happened . . . to own up to what was done in the name of national security, and to learn from it.”

As Leahy put it:

The Office of Legal Counsel issues legal opinions that are binding on the executive branch.  With this awesome power comes the responsibility to provide objective unbiased advice – and to get it right.  We cannot continue to look the other way; we need to understand how these policies were formed if we are to ensure that this can never happen again.

Unfortunately, Leahy knows — and has admitted — that he does not have bipartisan support he needs to convene a broad “Commission of Inquiry,” and the Republican objections to such a plan have been voiced loud and clear. But Leahy also knows, as I’ve written before, that he does not have to wait to try to overcome those objections, while the clock is ticking on the statute of limitations for many of these shocking crimes — including torture.

As the chairman of the Senate Judiciary Committee, Leahy could announce today that the committee will convene its own investigation into how these legal memos came to be drafted, who ordered them, exactly what directions were given, and how and why the law was interpreted and manipulated to justify actions that even many Republicans now look back at with disgust and horror.

Although the Justice Department’s Office of Professional Responsibility has completed an inquiry into the OLC lawyers’ conduct, the attorney general has so far refused to release the results, and they’ve reportedly been sent to the former OLC lawyers for comments and amendments. That doesn’t exactly inspire confidence that the final product will provide an objective account of what happened, even if it is finally released.

There is no reason to wait any longer to learn what really happened.  The time for the Senate Judiciary Committee to investigate is now.

If warranted, prosecutions could follow.

Horton’s sources tell him that the decision is to be announced today in a Spanish criminal court. The prosecutors reportedly will also ask Judge Baltasar Garzón, who has gained an international reputation for prosecuting other high-profile torturers, to step aside. Apparently, they think it’s awkward that he’s also presiding over the terrorism case of five Spaniards who were held at the U.S. detention facility at Guantanamo Bay — and might have been tortured there. Others want Garzon to step aside apparently out of concern that some in the U.S. media, which have derisively covered some of the judge’s previous prosecutions of foreign officials — such as former Chilean dictator Augusto Pinochet — might view his focus on prosecuting torture as “a sort of personal frolic of Judge Garzón,” Horton reports.

While the indictments expected today are sure to put a crimp in any vacation plans to Spain for the six former Justice Department lawyers — in addition to Gonzales, they include former Office of Legal Counsel lawyers John Yoo and Jay Bybee, as well as Vice President Dick Cheney’s former chief of staff, David Addington — more importantly, it’s sure to ratchet up the pressure on U.S. lawmakers to respond to the growing body of evidence that senior American officials broke the law.

Yesterday, CBS News legal analyst Andrew Cohen came out in support of a truth commission along the lines of what Sen. Patrick Leahy (D-Vt.) has suggested. But as I’ve noted before, Leahy himself has expressed doubts that that’s ever going to happen, since he can’t seem to win any Republican support for it. (By the way, where’s Sen. John McCain on this?)

While Congress is hashing this all out and mulling over the latest foreign justice system courageous enough to stand up for international law — after all, the United States is under international treaty obligations to prosecute torture — Leahy and his Senate Judiciary Committee could, at the very least, convene an investigation of precisely what role the Bush Six lawyers and the rest of the Justice Department played in developing an illegal interrogation and torture policy. That would be the perfect complement to the ongoing investigation of the CIA’s role by the Senate Select Committee on intelligence, and to the Senate Armed Services Committee’s probe into the Pentagon’s role — which destroyed the “bad apple” myth and revealed that the orders came from the top.

I’ve been told there’s some support for the truth commission idea among Democrats on the Judiciary Committee, but Leahy, the committee chair, is still not aggressively pushing it.

We’ll be watching to see if the Spanish prosecution — or the additional OLC “torture memos” that may (finally) be released later this week in a FOIA case brought by the American Civil Liberties Union — changes that dynamic.

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It’s an odd way of framing the issue — and an inherent concession to the notion that what legal experts around the world widely view as lawlessness and lawbreaking by U.S. officials is merely a legitimate difference of political opinion.

This leads perfectly into Harvard Professor Charles Fried’s analysis that for the next administration to prosecute those officials who broke the law would be akin to “the night of the long knives when Hitler eliminated his closest associates and rivals.”

But since when is an independent investigation into criminal wrongdoing by public officials the same as the summary execution of political rivals?  One could argue that the impeachment of President Bill Clinton was a political prosecution, given the subject matter of his alleged perjury.  But the direct and intentional violation of domestic and international laws prohibiting torture is no trivial matter.

Upholding the rule of law was paramount when it came to investigating Clinton, as well as in the current investigation of Illinois Gov. Rod Blagojevich. But for some reason, conservatives such as Fried, his Harvard colleague Jack Goldsmith, and the Wall Street Journal’s editorial board are intent on portraying the systematic lawbreaking by the highest officials in our federal government over the last eight years as a mere political disagreement. Even Goldsmith, a former head of Office of Legal Counsel under President George. W. Bush, wrote that the legal memos justifying their actions displayed shoddy legal reasoning and were written to provide a “golden shield” that would protect government officials from future prosecutions.

As I’ve written before, this makes the memos a far less persuasive reason to refuse to investigate further.

Dahlia Lithwick, writing on the same page in The Times, has it right when she quotes Robert Jackson, the chief prosecutor for the United States at Nuremberg, saying: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

Just as the U.S. government saw fit to investigate President Richard Nixon, Clinton and many others, it would be an odd choice indeed — and a dangerous message to send to the rest of the world — if the United States were to investigate its own officials only for relatively petty crimes committed here at home, but decided to ignore egregious violations of the laws of other nations and possible crimes against humanity when they’re committed against non-Americans.

Sure, everyone wants to move on and enjoy living under an administration that has promised to faithfully execute the law. But the purpose of the criminal justice system is to bring to light the lawbreaking of the past and, in punishing it, to ensure it doesn’t happen again. It’s also to demonstrate to the public, both at home and abroad, that we’re a nation committed to the rule of law. Much as we’d all like to trust that the new administration will follow the law, the consequences of executive lawbreaking, as its victims around the world now know, are too serious to be left simply to wishful thinking.

“This sentence sends a resounding message that torture will not be tolerated here at home or by U.S. nationals abroad,” said Executive Assistant Director Arthur M. Cummings II, of the FBI National Security Division. “The FBI and our law enforcement partners will continue to investigate such acts wherever they occur.”

Curiously, Cummings doesn’t mention that Attorney General Michael Mukasey has repeatedly said that he will not investigate whether U.S. officials broke the law when they authorized the torture, abuse and humiliation of suspected terrorists in American custody.

That’s because, as Mukasey has insisted, Justice Department lawyers assured the president and his advisers that they weren’t doing anything wrong. Never mind that Vice President Dick Cheney recently publicly admitted to authorizing waterboarding, which the United States itself has long considered torture, and prosecuted as such.

The opinions of the Office of Legal Counsel in the Justice Department informed the president that he wasn’t subject to anti-torture laws, and even if he was, it’s only torture if it causes pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”  However, that probably wouldn’t include burning people with cigarettes or candle wax, which is among the tortures that Taylor authorized and was prosecuted for right here in the United States.

In short, we can rest easy that the FBI and Department of Justice stand ready to go after torturers in other countries;  investigating and prosecuting those right here at home is another matter.

So does it matter if the interrogation techniques that were used, authorized and encouraged by senior officials in the US government for use on suspected Taliban or al Qaeda detainees – as confirmed by the recent Senate Armed Services Committee Report on the Treatment of Detainees in US Custody – are called “torture”?

You bet it does.

The role of language in the ongoing debate over what to do about the Bush administration’s authorization of torture and other “extreme” interrogation techniques was the subject of a thoughtful discussion last night in New York sponsored by PEN America and the American Constitution Society.

New Yorker writer Jane Mayer, author of the highly influential book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, warned against getting hung up on the label “torture” and focusing instead on the fact that either way, this was “deliberate cruelty” and morally wrong.

But as every lawyers knows, there are consequences to the language used. The advice of lawyers may well be why, as the lawyer and Harper’s writer Scott Horton observed last night, much of the mainstream news media, including such supposedly liberal-leaning newspapers as The New York Times and The Washington Post, have steadfastly refused to use the word “torture” — even when describing waterboarding, stress positions, sleep deprivation and other interrogation techniques that were used by US officials on detainees and have long been considered torture by US authorities.

As I’ve written before, waterboarding in particular has for more than half a century been prosecuted by US authorities as a form of unlawful torture. A US federal judge has publicly made the same point. (And VP Dick Cheney recently admitted to authorizing it.) Still, producers for PBS’s Jim Lehrer News Hour told Horton, as he was being prepared to appear on that show recently, that he musn’t rush to judgment in describing the techniques while on camera. Using the word “torture” on the show, Horton understood, was verboten.

The result is that the mainstream media has allowed the Bush administration to give itself a pass, to whitewash what it did as “harsh,” “tough,” or “extreme interrogation” — which after all doesn’t sound unreasonable in a war against terror – and to consistently deny that this conduct violated the law.
As Goldsmith wrote in his book, The Terror Presidency, quoted in the recent Senate report, Bybee’s memo essentially said to administration officials: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.”

The Administration’s lawyers – Bybee, David Addington, John Yoo and AG Alberto Gonzales – all knew full well that it matters what you call it. Because if the defense of “acting under presidential authority” fails – in other words, if it turns out that the president is actually required to follow the law – then if they’d committed torture, in violation of the federal torture statute, the Geneva Conventions and the UN Convention against Torture – then they could all be in big trouble.

That is, of course, what many of them are probably worried about now, and why legal scholars and human rights advocates worry that the Bush administration will issue a blanket pardon to everyone who was involved.

After all, a lame duck can still lay eggs.

The New York Times’ Sunday lead editorial is devoted to how the new Obama administration can and should close down Guantanamo Bay shortly after Barack Obama assumes the presidency on Jan. 20.

The Times draws on the detailed recommendations of Human Rights Watch, which offers a sensible step-by-step plan for how the notorious prison can be shut down; how to repatriate the many detainees who don’t appear to pose any danger, and why those that do ought to be tried as criminals in U.S. federal courts — not as a separate category of “enemy combatants” in military commissions or in some hybrid court created specifically to try terrorists.

I discussed the continuing debate over creating a new court to try terrorists in my piece for TWI last week.

But what struck me most about The Times’ editorial Sunday was not its detailed recommendations, which seem eminently sensible. What struck me was that even mainstream news organizations like The New York Times have all come to the conclusion that President George W. Bush and many of his closest advisers are — why mince words? — criminals.

In acknowledging that courts trying suspected terrorists may have to exclude some evidence against them that was elicited through torture, The Times writes that “it is important to remember that this is the price of Mr. Bush’s incompetent and lawless conduct of the war against terrorism. It is a price worth paying to restore the rule of law and this country’s good name.”

Yet The Times isn’t calling -– at least not yet – for prosecution or criminal investigation of Bush, former Defense Sec. Donald Rumsfeld, John Yoo or other senior advisors in the Bush administration that advocated the use of torture, “extreme” interrogation tactics and indefinite detention of people for whom we had little to no evidence that they’d done anything wrong.

Obama’s advisers have been understandably quiet as well on this issue. Yet, the more the public learns about the lawlessness that pervaded the Bush administration in its waging of the war on terror (for an excellent accounting of the torturous, frightening and bizarre techniques used on detainees, see the ACLU’s collection of interrogation documents obtained through a FOIA lawsuit), the more difficult it’s going to be to avoid the conclusion that unless those lawbreakers are held accountable, it will be hard for the United States to proclaim with any credibility its own respect for the rule of law.

To put it in the words of The Times’ editors: can the United States truly “restore the rule of law and this country’s good name” if it fails to bring those who broke the law to justice?

We’ve also long known that the Justice Dept., at the behest of a Central Intelligence Agency deeply fearful about its legal vulnerabilities, endorsed the torture techniques that CIA leadership desired. And we’ve recently learned that George W. Bush’s principal aides, including Condoleezza Rice, were aware of all the Spanish Inquisition-derived instruments of cruelty that the government was rehabilitating — as was Bush himself.

But now The Washington Post reports that in 2003 and 2004 — after those detainees had already been waterboarded — the White House explicitly authorized waterboarding in a pair of still-classified memoranda.

The memos were the first — and, for years, the only — tangible expressions of the administration’s consent for the CIA’s use of harsh measures to extract information from captured al-Qaeda leaders, the sources said. As early as the spring of 2002, several White House officials, including then-national security adviser Condoleezza Rice and Vice President Cheney, were given individual briefings by Tenet and his deputies, the officials said. Rice, in a statement to congressional investigators last month, confirmed the briefings and acknowledged that the CIA director had pressed the White House for “policy approval.”

Marcy Wheeler at FDL has the right follow-on question: Whose signature is on the memos? Wouldn’t it have to have been Bush’s? If it didn’t suffice to have Alberto Gonzales’ signature on the authorization for warrantless surveillance in March 2004 (instead of the attorney general’s), wouldn’t the president have had to be the one ordering the CIA to subject detainees to an unambiguously illegal activity?

Certainly that’s the logic of the CIA fears that undergirded the memoranda.

Consider what The Post reports:

“The suggestion that someone from CIA came in and browbeat everybody is ridiculous,” said one former agency official familiar with the meeting. “The CIA understood that it was controversial and would be widely criticized if it became public,” the official said of the interrogation program. “But given the tenor of the times and the belief that more attacks were coming, they felt they had to do what they could to stop the attack.”

The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program. A secret White House “memorandum of notification” signed by Bush on Sept. 15, 2001, gave the agency broad authority to wage war against al-Qaeda, including killing and capturing its members. But it did not spell out how captives should be handled during interrogation.

I know we’ll never ever have the war-crimes trial for Bush that is so obviously warranted. But if we did, these memos would make for powerful evidence.

Bush, Cheney, Gonzales, Yoo, Addington, Rice, George Tenet and the rest of them should think about tearing up their passports, because more and more nations are acknowledging universal jurisdiction for war crimes offenses.