I've mentioned the difficulties inherent in prosecuting a torture case against Administration officials who ordered the torture, and I still stand by that analysis. It isn't that prosecution is impossible, but it faces some daunting obstacles. Still, if the prosecution could manage to get this across to a jury:
The C.I.A.'s interrogation program is remarkable for its mechanistic aura. "It's one of the most sophisticated, refined programs of torture ever," an outside expert familiar with the protocol said. "At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you've heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling."That's Jane Meyer, from her New Yorker article in 2007. This is what Pres. Obama is going to shut down. Put that description in context, it's even more chillling:
Paul Gimigliano, a spokesman for the C.I.A., denied any legal impropriety, stressing that “the agency’s terrorist-detention program has been implemented lawfully. And torture is illegal under U.S. law. The people who have been part of this important effort are well-trained, seasoned professionals.” This spring, the Associated Press published an article quoting the chairman of the House intelligence committee, Silvestre Reyes, who said that Hayden, the C.I.A. director, “vehemently denied” the Red Cross’s conclusions. A U.S. official dismissed the Red Cross report as a mere compilation of allegations made by terrorists. And Robert Grenier, a former head of the C.I.A.’s Counterterrorism Center, said that “the C.I.A.’s interrogations were nothing like Abu Ghraib or Guantánamo. They were very, very regimented. Very meticulous.” He said, “The program is very careful. It’s completely legal.”Read that last quote again: "They were very, very regimented. Very meticulous.” And recognize what a world of evil can hide in such banal truth.
The horror of this story is how ordinary it is, and how efficient, how well-organized, how managed. The American genius for control has turned from nature (dams, levees, the famous pumps that keep New Orleans dry, or used to) to humans. According to a recent poll, 58% of respondents agreed with the proposition by President Obama that the United States not use torture as part of the U.S. campaign against terrorism, no matter what the circumstances. Now, the question is, will they agree that those who carried out the acts reported by Jane Meyer and others, be prosecuted? Because that's the test; if we only prosecute in order to prove a point, we continue to use the legal system for political, not legal, purposes. Prosecutions for torture or other war crimes, or other crimes at all (such as violation of FISA, like the data-mining of all US communications that Keith Olbermann has been reporting on the last two nights), must be done because there is a basis for criminal convictions, not merely to "send a message." Because if the message is returned to sender by a trial, the message turns into: "You can get away with it. In fact, it will be approved."
And that would be worse than failing to prosecute. I would note, too, as of this writing, the GOP is upset with Eric Holder's nomination because of this issue, and Obama is remaining mum about it. This is a wise course to follow, and may even explain his unwillingness to cut off all discussion of torture as an interrogation option. This is a mine field, still. It is best to proceed cautiously, albeit with determination to get out of it, and clean it up when we can.