The release of previously classified, Bush administration legal opinions analyzing whether "harsh" interrogation techniques would violate legal prohibitions against torture has reopened a moral and ethical debate about the U.S. response to the Sept. 11 terror attacks. It is certainly appropriate to question whether the measures adopted were consistent with the traditions of the nation, or whether they would even work. But there is no criminal charge for acting immorally, for making decisions contrary to our country's principles or for choosing an ineffective intelligence gathering technique. At its core, then, the underlying issue that advocates for the criminal investigation and prosecution of senior Bush administration officials must address is much more about law than it is about morality or efficacy. Any prosecution must satisfy a strict legal burden of proof that the individuals who penned these opinions, and the senior-level officials who requested them, violated the very law that they were analyzing. In other words, those who requested the memos and those who drafted them would have to be charged as either accomplices or co-conspirators to torture, in violation of U.S. criminal law. Those calling for prosecutions argue that the techniques endorsed in the legal memorandums represent clear violations of the Convention Against Torture. But while it is true that the U.S. is bound by this treaty, the government cannot prosecute someone for violating it. Instead, as with most treaties, what constitutes the crime of torture is defined by the law passed by Congress to implement the treaty. That law, known as the Federal Torture Statute, provides the exclusive and controlling definition of torture for the purpose of criminal prosecution in the U.S.
Torture Memos: Careful What You Wish For
