Crimes Of Passion

On August 27, 2014, Reuters reported:

A Texas jury on Wednesday found a father not guilty of shooting dead a suspected drunk driver who hit and killed his two sons while they pushed a truck down a country road late at night.

David Barajas, 32, had been charged with murdering Jose Banda, 20, in December 2012, after he plowed into Barajas’ sons David Jr., 12, and Caleb, 11, in a small town south of Houston after a night of drinking.

Without going into the details of Mr. Barajas’ trial or discussing the evidence or lack thereof, it was widely believed that the jury acquitted David Barajas because they understood his actions, even if they didn’t necessarily agree with them. The jury may have understood that a father who had seen what he had seen might very well have run the hundred yards to his house to get his gun and then returned to kill the drunk who had just killed his little boys. The jury may have reasoned that, after he had witnessed such a horrifying scene, no one could totally fault the father for acting so rashly, beyond the limits of the law. Maybe the jurors didn’t want to imprison him—even if he actually did kill the man who killed his sons—for his crime of passion.

We all know by now that the Senate Select Committee on Intelligence discovered horrific things related to the CIA’s detention and interrogation program. The unclassified Executive Summary of the “Findings and Conclusions” is 525 pages long, but the classified material is many times more voluminous and, we might assume, much more damaging to the CIA and the Bush administration.

Since there are plenty of places where you can go and get the gory details of what went on under the banner of Old Glory, I’ll leave that portion alone. There is only so much you can say about “involuntary rectal feeding and rectal hydration” or waterboarding or a detainee who froze to death while “partially nude and chained to a concrete floor”—and that was after he had been tortured.

Here is what I have concluded from almost a week of exploration:

A. It is obvious that many of the techniques the CIA used were in fact torture. That those involved in the program say it wasn’t torture is absolutely predictable. They have to say that. What else can they say?

B. That such techniques as were used constituted prosecutable torture was decided a long time ago. As Sheldon Whitehouse, who sat on the select committee, said on Fox “News” Sunday:

We decided waterboarding was torture back when we court-martialed American soldiers for waterboarding Philippine insurgents in the Philippine revolution. We decided waterboarding was torture when we prosecuted Japanese soldiers as war criminals for waterboarding Americans during World War II, and we decided waterboarding was torture when the American court system described waterboarding as torture when Ronald Reagan and his Department of Justice prosecuted a Texas sheriff and several of his associates for waterboarding detainees…

C. Since it was torture and since torture is a war crime (and against U.S. law), it is irrelevant whether the torture “worked.” There is no theory of justice that I know of that excuses a crime because of its associated effectiveness.

D. Since it was torture and since torturing prisoners is a crime and since somebody in government had to officially authorize the CIA to do it so comprehensively, that somebody is ultimately responsible for the crime. And that somebody is George W. Bush and no one else. Here is an exchange between Chris Wallace and Karl Rove on Fox “News” Sunday:

WALLACE: Karl…the report says that President Bush didn’t know about these enhanced interrogation techniques until 2006. You were there. Is that true?

ROVE: No, in fact, he says in his book, describes how he was briefed and intimately involved in the decision. He made the decision. He was presented I believe 12 techniques. He authorized the use of ten of them, including waterboarding.

Not surprisingly, Rove’s account perfectly matches the account of Dick Cheney, who said on Meet the Press on Sunday:

The president writes about it in his own book…This man knew what we were doing. He authorized it. He approved it. The statement by the Senate Democrats for partisan purposes that the president didn’t know what was going on was just a flat out lie.

Thus we have it that if anyone in government is potentially prosecutable for any crime, it is George W. Bush. Not Dick Cheney—as much as that would satisfy some of us—not Karl Rove, not the head of the CIA, or anyone else. The president, says Karl Rove, was “intimately” involved. Cheney said he “knew” and “approved” of what was going on.

E. Nobody in government, especially not Barack Obama’s Justice Department, is going to charge George W. Bush with a crime and then prosecute him. That’s not going to happen. Ever. People on the left clamoring for such a prosecution are, alas, wasting their time.

F. Therefore, this crime of passion will go unpunished.

Whether it should go unpunished, whether we should consider the context in which the Bush administration’s actions were set, whether we should give the benefit of every doubt to those who were confronting what Senator Dianne Feinstein called “the pervasive fear in late 2001,” is a situation much like those jurors in Texas faced in the case of David Barajas, who watched his two young boys die at the hands of a drunk driver and, if we are to believe the prosecution, shot and killed the offender.

I confess I don’t know how I would have voted if I were on that Texas jury evaluating what may have been a crime of passion by a shocked an angry father. A perfect system of justice would obviously demand that vigilantism be punished, but no man-made system of justice can be perfect. Justice is often an approximation.

In the case of torturing prisoners, I am simply not sure that I would, if I were sitting on a jury judging George W. Bush, vote to convict him. It may be clear, as Senator Feinstein put it, that the CIA’s detention and interrogation program was “morally, legally, and administratively misguided.” But it is less clear that, as she said in the report, the “pressure, fear, and expectation of further terrorist plots do not justify, temper, or excuse improper actions taken by individuals or organizations in the name of national security.” Maybe they don’t. But such a judgment is made a long way in time from the unfolding events and therefore a great emotional distance from the heat of the moment. Again, I just don’t know what I would do if the decision to convict were mine.

What I do believe, though, is that President Obama should do the country a favor and pardon his predecessor and all of those involved. That way, as many have pointed out, we could at least establish, for all time, that what was done in the months following the horrific attacks on 9/11 was, by our own lights and the lights of the international community, illegal and should never happen again.

Because, after all, crimes of passion are still crimes.



  1. I guess then, that “Stand Your Ground” is OK. And shooting anyone deemed “scary” by the shooter, is okay. And Angst-riddled teens with guns mowing down their classmates, is okay.
    Crimes of passion are okay if they’re committed by powerful rich white guys. Really? Then we’re all fucked. But then, there’s almost no justice in the US anymore. Yeah — we’re all fucked.


    • Never said any of it was “OK.” Just the opposite. My additional point was that I am ambivalent about convicting POTUS of a crime, as it relates to the issue of the CIA’s torture program. I very well might convict, after I heard all of the evidence, including testimony from the accused under cross examination. As it stands right now, I just don’t know. I am making a tentative allowance for the context of the crime, as I consider guilt and, of course, possible imprisonment. Maybe you don’t want to make such an allowance, which I understand, but I do, especially because convicting the President of the United States of such a high crime, given the circumstances of 9/11, is something that would have long-term consequences and, thus, is something we should think long and hard about.

      Moreover, I just don’t get your fairly extreme reaction to what I wrote, especially when you include “angst-riddle teens with guns mowing down their classmates, is okay.” Huh? Honestly, do you think a) that is a fair comparison and b) that I would be similarly ambivalent about such a situation?



      • You are correct, sir: I over-reacted. I do that from time to time. Still, the idea that Clinton-Lewinsky yields impeachment and Bush-Torture yields “pardon” is a bit difficult to take. I realize W can’t be impeached, but some of those turkeys should be handed over to the World court — after which they’d never be seen again. Thanks for patiently setting me straight.


        • No doubt, my friend, there is a disparity involved and it makes one furious. If it makes you feel any better, I doubt that Bush or Cheney will ever again travel to certain places in Europe, for fear that they will, indeed, face some kind of charges.


  2. At least we’re talking about it, having some kind of conversation that allows for and explores vastly different points of view.

    I firmly believe that if we cannot have dialogue about issues like racism, bigotry, gun violence, torture, climate change, nuclear weapons and a host of other similarly crucial issues, then someday other intelligent beings will look upon earth and wonder what happened to us. Why did this civilization fail?

    Maybe we are all fucked, but I’m going down talking!


    • I completely agree, Michael. Let’s discuss it, discuss it all. I am completely open to good arguments as to, say, why George W. Bush ought to be in a prison somewhere right now for his authorization of torture by the CIA and its contractors. But those had better be some damned good arguments, as far as I’m concerned. I did not like what George W. Bush did in many, many policy areas, including this one. But I can’t honestly say that he is a bad man because he made some very bad decisions. Motive, or more to the point, mens rea, is something we should consider, when we consider criminal acts like these. And I am far from convinced that Bush intended, purposely, to commit either an evil act or a criminal one, when he authorized what we now know happened.

      I’ll go down talking, too, my friend, because in the end, such free, unfettered talking is at the heart of this country’s virtues.


  3. King Beauregard

     /  December 16, 2014

    There is this argument too, and while I don’t like it, I can’t find a flaw with it either. If we take to prosecuting one President after he leaves office, then all his successors can expect to be prosecuted by their enemies after they leave office as well. That will leave us in a position where the only people who will take the job will have to know what to expect when their term is up, which will negatively impact whom we can actually get to run for President as well as their behavior in office.


    • I think that is a good way of looking at it. It’s hard enough as it is to get good people to go through the grueling process of raising all that money and putting up with a weird and lengthy process. It would be worse if all potential candidates knew with certainty that awaiting them was an opposition party hell-bent on making life as difficult as possible for them and their administration and, if they messed up, wouldn’t hesitate to impeach them or, if there wasn’t time to do that, prosecute them after their term was up.


  4. ansonburlingame

     /  December 16, 2014

    Duane and Michael Gaden,

    Both of your are right on the mark, we must be able to discuss both sides of buring issues without ……….

    Duane, you are also exactly right, in my view, to say that you cannot judge how you would “vote” if you were a member of a jury on any matter. You would be forced to sit and listen to both sides before ……… Our country is not trial my media, popular opinion, etc.

    What the Senate DEMOCRATS (and John McCain) are saying is they would have made a different decision had they been the President, immediately after 9/11. Oh Yeah?? Had passengers on United Flight ….., not taken matters into their own hands, is it possible we could still be debating a Presidential (or Vice Presidential) order to shoot down that plane as it approached DC?

    One thing is clear to me. The Administration went to significant legal lengths to determine if certain techniques were legal. The conclusion is that such techniques were in fact legal such as “facial slapping, sleep deprivation, being placed in uncomfortable positions and, the real kicker, waterboarding”. Those are bullets that I saw as being the “techniques” briefed to both Senate and House Intell committees and no one said “no” to any of them. True or false, I ask? Also note that ONLY members with unique clearances have the RIGHT to be briefed on highly classified matters. To say “no one asked ME” is a lame excuse today as such people were specifically excluded, based on protecting highly classified material, from such information and decision-making protocols.

    If a member of Congress votes to go to War then a King’s X later on when war becomes “hell” is another lame excuse. Go to war and then let the Executive branch actually fight it is the constitutional way to do business. What to do when the Executive branch “goes too far”, creates too much “hell” is a different matter.

    Recall Lt. Calley of Vietnam infamity. He went too far and ……. But all the “grunts” with a necklace of ears cut off the heads of enemies on a battlefield, well should we prosecute the Commanding General? Four Marines urinate on dead bodies and get caught. Again, who should be prosecuted? I could go on and on with such examples.

    On 9/11/2001 something unique happened. War in the 21st Century began and it was a whole different kind of war than we have fought before other than perhaps “Indian wars” in the nineteenth century, another form of guerrila war. Sure in hindsight we find all sorts of things done wrong, morally wrong, as we the people slaughtered innocent ……… in our war on Indians (now war on terror overseas and in America).

    Actually, Vietnam was our first war with modern “information age” technology on a battlefield. If we had applied the same scrutiny on battlefields of WWII we could easily have been calling for prosecution of many (every?) commanding general, or brigade commander, or battlion commander, or company commander on those battlefields. And the Lord only knows what our OSS might have done during WWII, much less the unprosecuted fire bombing of Dresden, Tokyo, etc., etc. Hell some might have called for prosecution of President Truman for unleashing nuclear hell on the Japanese. We are still arguing that point it seems.

    I have not heard one word, one phrase, spoken by any elected leader from 2001 and thereafter that said “be tough as hell on him, but don’t go too far!!!” All I have heard was “don’t let it happen again” and “go get the bastards doing it to us” from that time, 13 years ago. Now only one group within the Dem party is saying “you went too far”.

    Well who, exactly, is “you” in that accusation. And who in making such statements were “in the know” and failed to say STOP at the time they were told just how far we intended to go?

    It almost seems as if the details of how we fight must now be briefed, publicly, during a 21st Century war. Good luck winning one if that becomes the case. Body cameras on every soldier and “spy” on a battlefield anyone?

    I wonder right now if the Administration has briefed, a very classified brief, various members of Congress on the steps being taken to prevent killing innocents with drones? Then 10 years later some others in Congress decide to “write a report” on all done wrong, in hindsight, to prevent killing anyone other than the “target” with drone strikes. Prove to us, former President Obama, that drone strikes were effective in deterring the enemy!!!!! Or “why didn’t your brief ME” on the measures being taken!!!!

    Just consider the outrage if GOPers alone next year formed a “select committee” to investigate drone strikes right now. As well a GOP report exclusively, with maybe one lone Dem in support, condemns the CIA and Administration and the U.S. Air Force and “controllers” in Nevada, for conducting such current drone strikes, a lowly First Lieutenant, perhaps.

    Great blog, Duane and thanks for promoting an open discussion on this important matter. And of course “overuse of force”, by members of the CIA and military is similar to allegations of overuse of force by cops as well. One group tries to win a damned war and the other tries to enforce the law.

    As for a Presidential pardon, I hope to God that is not needed. But if it is for people accused of “torture” then Obama should do the same for any and all members of the CIA and military conducting drone strikes as well. Hell had Lincoln lived, I suppose some, after the Civil War would have called for his impeachment and the courts martial of say, Sherman, for that March to the Sea in 1864!!



    • Anson,

      The Bush administration didn’t go to all that many “legal lengths to determine if certain techniques were legal.” They did, though, go to a lot of legal lengths to technically make them “legal.” That involved a rather torturous fashioning of legal opinions that, in the end, served to authorize what clearly were illegal activities.

      As far as what various members of Congress knew and when they knew it, it will always be a matter of dispute. We don’t know how much they were told and how much they weren’t told, how much they listened or how much they didn’t listen, how much they approved or how much they didn’t approve. It will all get lost in the fog of both sides fighting over this issue. But it does seem to me that the CIA lied to Congress on numerous occasions and even held some of the information back from President Bush. And we know that the CIA hacked Feinstein. They don’t get the benefit of the doubt in this matter, since it was in their interest to conceal certain things.
      As for your point about drones (which a lot of right-wingers are making), it’s not the same thing, even if a future select committee investigates. Torture is intentional. The collateral damage associated with drone strikes is not intentional. There is no moral equivalence, even though one can make moral objections to the way some aspects of the drone program are run.

      The purpose of any presidential pardon would, at this point, be to only establish that in fact crimes were committed. It would essentially involve Obama making it clear that what was done in our name shouldn’t have been done but that there were some mitigating circumstances that should be considered.



  5. When the sordid details of the torture report broke, I wrestled in my mind over whether they ought to have been revealed at all. It is, after all, a certainty that our country’s honor and any protestation of moral purity will be forever stained by this reality, and not only that. It will always be available for our enemies’ recruiting and to justify similar treatment of American prisoners. But I have decided that we did the right thing. As Michael points out and as Duane agrees, America’s strength is our commitment to open discussion, just as much as is the balanced but messy tripartite structure of our government.

    King’s point, about the need for a presidential pardon is equally relevant for the reasons he gives, but there is another good reason to issue it. It would recognize for history’s use just where the responsibility lay for this scandal while also recognizing the difficult issue of mens rea. (Thanks, Duane – I had to look it up.) Perhaps the greatest vulnerability of our governmental process, indeed, of any governmental process, is the ease with which vague guidance by superiors can lead to moral turpitude. The Iraq War stands as an historical monument to that truth, never mind reviewing the Nuremberg war trials. The sad excuse, “I was just following orders”, still echoes, and no doubt always will. Only the light of exposure will diminish its use.

    Liked by 1 person

    • Jim,

      Funny thing, but I also wondered at first whether the report should have been made public. I asked myself if it would do more harm than good, since we generally knew what had happened.

      I think, though, that releasing it demonstrated our strength as a country, which is partly found in our ability to admit our faults, try to correct them, and move on with a new sense of commitment. The eradication of slavery and of Jim Crow was like that.

      Your point about “the light of exposure” diminishing the use of excuses for what is clearly bad behavior, hopefully, will be one that is not lost on future members of any administration, Democrat or Republican.



  6. Duane,

    I disagree with your comparison of crimes committed by an overwrought father in a matter of minutes, and acts of torture committed by a democratic government over several years. The former is indeed a crime of passion. But the latter are crimes against humanity.

    We’ve all heard he CIA’s mantra, “We don’t torture, we use enhanced interrogation techniques,” That particular euphemism originated in 1937 in Nazi Germany. “Verschärfte Vernehmung” is German for “enhanced interrogation.” The Nazis wanted to torture people in a way that was not visible, like, say, sleep depravation, left naked for days on a cold floor, water-boarding, and the like. On this basis, EITs are simply a sub-category of torture.

    Of course, after WWII, there were a number of Japanese interrogators charged with and convicted of water-boarding U.S. troops. They were summarily executed. And back then we called water-boarding “torture.”

    Also, I think what’s missing is this discussion is a reflection on the war crimes and crimes against humanity committed during WWII and how they subsequently affected the rules of war. There was the UN’s “Declaration of Universal Human Rights,” and consolidation of the four “Geneva Conventions” and the “Nuremberg Principles” in 1949.

    Eventually we got the “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” President Reagan signed this treaty in 1988 and the Senate ratified it in 1994. So, if you don’t like torture to be equated with EIT’s, then you have those other pesky issues to deal with.

    All of these incorporated the lessons we learned (or should have learned) from the Tokyo and Nuremberg trials – trying to stop what the Declaration of Universal Human Rights calls, “. . . disregard and contempt for Human Rights [resulting] in barbarous acts which have outraged the conscience of mankind.”

    To many, including me, our treatment of terrorists (and others who were proved not to be terrorists) since 9/11 seems to have “outraged the conscience of mankind.”

    We know that President Clinton authorized “extraordinary rendition” to nations known to practice torture — torture by proxy – but not EIT’s per se. (Obama stopped that as one of his first acts in office.) But, I don’t know if Bush 41 would have authorized any of these shenanigans, or if Reagan would have. Carter surely wouldn’t have, but Nixon surely would have. And don’t call them Shirley.

    In any case, I think the best takeaway from all this is the message from John McCain. Seems to me he is the only person in Congress qualified to speak on the efficacy and morality of torture and its related spawn. On this particular issue I give him great credibility. 9/11 or no 9/11, we do not torture. Period. If fact, it only makes things worse. The rumors that we were doing EIT’s no doubt caused many a frustrated Muslim to head to the nearest Al Qaeda recruiting office.

    If you haven’t seen it yet, or just seen excerpts, here’s McCain’s entire speech on the Senate floor after Senator Feinstein presented the report on CIA’s torture. McCain speaks for me.



    • Herb,

      No doubt, John McCain’s finest moment in recent years came when he gave that speech on torture last week. It was remarkable and a remarkable moment in our history.

      You have made a lot of good points but none better than the idea that torturing prisoners makes things worse for us in the long run. I don’t see how anyone can deny that.



  7. ansonburlingame

     /  December 19, 2014

    Duane, Jim and Herb,

    People are making a big assumption in this exchange about “legality”. You assume that the CIA wanted to conduct brutal (does brutal equal torture?) interrogations to achieve everyone’s goal of preventing another attack and getting the people that had attacked us. They asked, correctly, the sitting President for permission. He went to his Justice Department and asked, “is this legal”. The Justice Dept came back and said “Yes”.

    On the other hand, did the CIA and the President go to the Justice Department and SAID, “make this legal”?

    As a “senior executive” (military and civilian) I have wanted to achieve various goals. If it became a question of law, union dealings for example, I would ask “Can I legally do this” of attending lawyers, “my lawyers” if you like, “company lawyers”. In every case I can recall they said a flat out “no” in some cases and in others “yes, but if you do it the “union” will ……”. I then would say “as long as it is legal, then be ready to argue on my behalf, as the decision maker”. You see I NEVER tried to make law. I simply tried to follow it and achieve worthy goals, legally.

    Certainly the legalities and decison making in this case were far beyond my pay grade. But the process is the same, it seems to me. And I never saw any legal proceedings or regulatory oversight returning a verdict of “illegal” in any such situations, even at least two court cases in which I participated but was not the ultimate decision maker.

    Now for those opposed to any “brutality” in war, it really sticks in your craw I suppose that even the Obama Justice Dept clearly has said nothing illegal was done and thus no prosecutions. I have yet to see any evidence that the Director of the CIA or the President told anyone to “go make this legal”, as well..

    Any idiot knows full well that “torture” is illegal and morally reprehensible as well. NO ONE would sign his name on paper or give verbal direction to “go torture that (or those) SOBs”. Instead they directed “enhanced interrogation” and considered themselves on firm legal footing to do so, or so they say.

    This whole clammor is over waterboarding as a form of torture. Sure some extremists think keeping someone awake is torture as well but I sure disagree with that point, keeping someone awake is torture in and of itself. Now if we kept them awake with electric shock “therapy” that would be a whole different discussion as well.

    Many leap to conclusions that we beat people with clubs, ripped out fingernails, cut off appendages, etc., real torture if you will. But no evidence of such activities have been brought forth as far as I know. Did such extremes happen? Maybe is all I can say and I would call for strong discipline against the men going to such clearly illegal and immoral extremes. But I sure don’t believe such actions were government policy as well.

    Look at it this way if you can. Had three men NOT been waterboarded, would the country be up in arms today? I seriously doubt it, unless pictures of another Aba Grabi were shown in evidence. Should I assume that many “interrgators” in the CIA went beyond Aba Grabi and did so as a matter of government policy or direction from the President of the United States? In other words is the EIT simply a coverup for a massive CIA plot to conduct actions similar to and beyond Aba Grabi, some “grunts” running wild and doing illegal things, immoral things?

    Well maybe is all I can get out of this mess and I sure as hell don’t believe the President of the United States would have condoned such actions by anyone in the CIA, endorsing Aba Grabi like actions on a grand and formal scale. I would go so far to suggest that American “grunts” tortured prisoners at Aba Grabi, purely as a matter of crazy punishment for being enemies.. But CIA interrogators doing what they were told was legal, no way, in my view, unless we find some real rogues violating the clear intent of government policies to conduct tough, but legal interrogations.

    What will come out of all this is that waterboarding will NEVER be used as a matter of government policy again, in the future, even if a hidden nuclear device was being sought in NYC. But someday, some innovative and patriotic American will figure out a different way to put enemies in “uncomfortable” circumstances in order to find out critical information, “legally”. Unless of course we make a law that making enemies “uncomfortable”, physically or even psychologically, in wartime, is itself illegal. But if we make a “good cop, bad cop” form of interrogation illegal and only resort to “good cop” techniques, well ………?

    But somehow I sense the KSM would have gladly accepted five star meals, maybe some sexual favors, a kingsize bed, all the sleep he needed, etc. but tell us anything of value? I seriously doubt it. On the other hand, did he really tell us anything of value? Some say no and other yes. Who do you believe?



  8. Anson,

    You wrote, “People are making a big assumption in this exchange about “legality”. You assume that the CIA wanted to conduct brutal (does brutal equal torture?) interrogations to achieve everyone’s goal of preventing another attack and getting the people that had attacked us. They asked, correctly, the sitting President for permission. He went to his Justice Department and asked, “is this legal”. The Justice Dept came back and said “Yes”.

    I got some great advise from a city attorney once. “You can’t do indirectly what you can’t do directly.” We have signed and ratified “Common Article 3 of the Geneva Conventions” which prohibits torture. We have signed (by Reagan in 1988,) the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the Senate ratified in 1996.

    The CIA can’t hide the fact of torture under the thin veil of “enhanced interrogation techniques.” If they could, then, according to the CIA, a rose by any other name is not a rose.

    A little history is in order here. As the result of the Torture Convention, we enacted the 1996 Torture Statute, Title 18 U.S. Code § 2340, which says

    (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;

    (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

    (C) the threat of imminent death; or

    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

    And here are the penalties under Title 18 U.S. Code § 2340A:

    (a) Offense.— 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.

    (b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
    (1) the alleged offender is a national of the United States; or

    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

    (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.

    In November 2005, 92 tapes of “interrogations” by the CIA were destroyed after the CIA’s Inspector General John L. Helgerson determined that they depicted “cruel, inhuman and degrading treatment, as defined by the international Convention Against Torture. That’s a pretty clear admission of guilt to me.

    Then there is the “War Crimes” statute at 18 U.S. Code § 2441, which you can read at your leisure – This statute also covers violations of Common Article 3 or the Geneva Conventions and the Convention on Torture.

    On September 6, 2006, the U.S. Army announced the publication of Field Manual (FM) 2-22.3, “Human Intelligence Collector Operations.” The Army’s news release stated that Field Manual 2-22.3 specifically prohibits many of the controversial enhanced interrogation techniques (including “waterboarding”) which brought the matter to public attention, and also stipulates that the list is not all-inclusive of prohibited actions.

    I could go on and on but you get the point. What the CIA did between 2001 and 2006 was a blatant violation of international and U.S. law. As I understand it, two “detainees” died as a result of these so-called enhanced interrogation techniques; one at Abu Ghraib and the other at a “black” site. According to our Torture Statute, those responsible are subject to the death penalty. I haven’t seen any arrests, have you?

    The only practical course of action at this point is for Obama to grant pardons to the criminals involved in breaking the law. That would have to include Bush, Cheney, Rumsfeld, Tenet, and down the chain of command. They need to be reminded, as we all do, that, You can’t do indirectly what you can’t do directly.”

    But not to worry. A few years from now, people will be after Obama, Biden, and other DOD and CIA directors for the war crimes committed with killer drones.


    Liked by 1 person

    • @ Herb,

      As you can see, I “liked” your comment to Anson. As I was reading I couldn’t stop the thought bubbling up in my head: the measurable horrors of the pain and degradation that occurred are bad enough, but there is no standard nor instrument for measuring the mental effects of such treatment, and those may actually be worse than the physical. I recall reading that some “suspects” subjected to EIT’s did suffer “permanent” mental damage, but the passage didn’t specify how that was measured – one can only imagine. During my Naval career I encountered sleep deprivation, but much milder than what has been described in the CIA cases, and I consider that all these years later, I do have PTSD, in part only from that. The nightmares do not go away but intensify with age.


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