The thing that concerns me most about the investigation of Central Intelligence Agency interrogators is that U.S. law served as such a poor guide to them for what was permitted.
Although administrations do break laws, I think if Congress had had the courage and the energy to actually enact clear statutes on torture, the CIA interrogators would have been much better served. The 2005 McCain amendment was so watered down and so easily interpreted away as to produce the opposite of the effect intended; then McCain himself went on to defend torture in order to curry favor with the far right in his presidential bid. Bush vetoed the last attempt at better anti-torture legislation in spring of 2008. The Democrats may only have a brief window through November of 2010 to get effective and unambiguous legislation on the books, and now we have a president who won’t veto it.
Note that one of the interrogators is said to have feared prosecution before the World Court in the Hague. But why weren’t they afraid of prosecution in U.S. courts? When did the U.S. go from having, in the Bill of Rights, among the most advanced human rights laws in the world to being a gulag backwater where it is only a trip to Holland that American torturers fear?
It is the ambiguity of U.S. law on these matters that allowed John Yoo to offer those bizarre opinions, as White House counsel, as to what interrogators could do. The Universal Declaration of Human Rights is toothless and largely ineffectual except as a vague set of ideals. It needn’t be that way.
The Obama administration has forbidden waterboarding. But as long as these things are done by administrative fiat, they can easily be undone. There should be a law.
A law would help the courts hold high-up politicians to account. Dick Cheney has been vocal about torture saving lives precisely because he wants to affect the climate of public opinion before he goes up on charges. As things now stand, it is only some schmucks at the very bottom of the system that get punished, not the people actually giving the orders (even if by a wink and a handshake).
Even the old principle that Congress declares the wars has been made antiquated by the rise of modern police actions and guerrilla campaigns, which are not viewed by Congress as wars. As a result, the executive can single-handedly insert us into foreign wars, something the Founding Fathers wanted to forbid in the Constitution. The war powers of presidents need to be more carefully revised and crafted.
Likewise, the kind of U.S.-sponsored coups in other countries that Steve Kinzer has chronicled in his “Overthrow” take place in a legal limbo. Can the president order the Directorate of Operations to just get rid of the government of a foreign country? I repeat that it is not only the sheer act (and who would not have applauded a U.S.-backed successful coup against Adolph Hitler if it could have been arranged?), but the extra-legal context in which the agency is made to operate.
If more of the covert side of the U.S. government is not encompassed by legislation, then every time a right-wing government gets in, it will just go back to Bushism. Or worse.