Lara Jakes Jordan has a piece for the AP about how Obama’s advisers say they won’t prosecute interrogators who tortured dudes. It really ought to have mentioned how the 2005 Detainee Treatment Act, written by the noble incarnation of John McCain, basically makes it really hard to pursue any such prosecutions. I’m no Marcy Wheeler or nothin’, but check out section 1004:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.
Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
And I think the Military Commissions Act of 2006 might have strengthened this but I’m not sure. Anyway: this isn’t ironclad, as you can see, but the law is clearly weighing in on the side of protecting anyone who was ordered to torture a dude. And that’s pretty understandable.
As the Iraqis say, fish rots from the head, and it’s risable to prosecute the interrogator who carried out the torture but not the policymakers who ordered him to torture someone. And as for how that might happen, be sure to check out Scott Horton’s excellent cover story in Harper’s.