Torture Memos: Careful What You Wish For

Torture Memos: Careful What You Wish For

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.

Keep reading for free!

Get instant access to the rest of this article by submitting your email address below. You'll also get access to three articles of your choice each month and our free newsletter:

Or, Subscribe now to get full access.

Already a subscriber? Log in here .

What you’ll get with an All-Access subscription to World Politics Review:

A WPR subscription is like no other resource — it’s like having a personal curator and expert analyst of global affairs news. Subscribe now, and you’ll get:

  • Immediate and instant access to the full searchable library of tens of thousands of articles.
  • Daily articles with original analysis, written by leading topic experts, delivered to you every weekday.
  • Regular in-depth articles with deep dives into important issues and countries.
  • The Daily Review email, with our take on the day’s most important news, the latest WPR analysis, what’s on our radar, and more.
  • The Weekly Review email, with quick summaries of the week’s most important coverage, and what’s to come.
  • Completely ad-free reading.

And all of this is available to you when you subscribe today.