I have always thought that someone should go to jail for the torture by US agents, but I used to think it should only be the people who set it up. Now, I’m not so sure:
The C.I.A. officers used waterboarding at least 83 times in August 2002 against Abu Zubaydah, according to a 2005 Justice Department legal memorandum. Abu Zubaydah has been described as a Qaeda operative.
…
The 2005 memo also says that the C.I.A. used waterboarding 183 times in March 2003 against Khalid Shaikh Mohammed, the self-described planner of the Sept. 11, 2001, terrorist attacks.
183 times in a month? Anyone should know that this is torture. It’s obvious, that’s why the FBI pulled back:
By mid-2002, several former agents and senior bureau officials said, they had begun complaining that the CIA-run interrogation program amounted to torture and was going to create significant problems down the road — particularly if the Bush administration was ever forced to allow the Al Qaeda suspects to face their accusers in court.
Some went to FBI Director Robert S. Mueller III, according to the former bureau officials. They said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.
Hmm, I guess the FBI knows that the Nuremberg trials had shown that ‘I was just following orders’ is not a defense. Emptywheel has more, including the facts that the agents used waterboarding more than they were supposed to and used a worse version than they were authorized to. President Obama has said he won’t charge any of these people? Why? Ex-CIA director Hayden and ex Attorney General Mukasey worry that CIA agents will fear recriminations. Agents should worry if they do something this obviously illegal.
Update: Harvey Silvergate has an editorial about this:
A CIA agent, operating in good faith, could readily consider such DOJ advice to be a binding legal opinion that he could safely follow. And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal.
Hmm, this might be a good point except the CIA agents went further than the legal advice allowed and the FBI refused to participate, showing that reasonable people could see that the memo’s argument might easily be wrong.
Petunias 