This past week Eric Holder went before the United States Senate Judiciary Committee so that he might be confirmed as the next Attorney General. In that hearing, he was asked whether waterboarding was torture, and he gave a pretty unequivocal answer of “yes”, much along the lines that his soon-to-be boss President-elect Obama has said.
According to an article in the New York Times, and a separate one in the Wall Street Journal, the statement itself, obvious as it may seem, will have consequences for those who committed the acts, and for the United States government itself, who is party to a treaty that requires prompt investigation of all credibly alleged acts of torture.
The Times article mentions, however, that the Military Commissions Act of 2006 (where they probably mean the Detainee Treatment Act of 2005, PL 109-148 §1004) protects officials from prosecution if they acted in good faith based on the opinion of the Attorney General and the President.
Let’s put this another way: if the President and AG say it’s okay to torture, then according to that law, ain’t thing one a future president can do about it. Furthermore, simply changing the law would not remove the protection for officials, as any prosecution would be considered ex post facto, which is prohibited by our Constitution.
Of course nobody ever said that the President or AG said torture was okay. They just defined it in such a way that waterboarding wasn’t included. Well, why not do that with electrical shock, or caning? It’s a hole of infinite size through which any numbskull could step through.
What, then, does it mean when we say that the United States doesn’t torture people?