My sense is that Ambers is right. The president's statement that he does not seek to prosecute CIA staffers who tortured suspects believing in good faith that they had legal authority to do what they did is not quite as blanket as it sounds. If evidence emerges of bad faith in torture sessions, then those staffers may well face legal consequences. Ditto if the legal advice was given in bad faith, along Nuremberg lines, Yoo and Bybee should start sweating. That's why the internal OPR report on the legal professionalism of the torture lawyers is so crucial and why it is being fought over so fiercely. If Yoo and Bybee's memos were so below legal standards that they can be objectively shown to be a means to get away with torture rather than good faith effort to apply the law to proposed torture techniques, then they too acted in bad faith. And they too are war criminals.
I do not believe that the focus should be on CIA staffers. I never have. These war crimes should be traced directly to those responsible: the men who made the decision to deploy torture as a routine part of American government, and to turn America into an international symbol that democracies, as well as autocracies and dictatorships, can allow torture to be integrated into their identity and legal system. This Bush and Cheney did. It affected America, but one suspects that the period in which America told the world that torture was fine, and even moral, will have consequences far and wide for a long time to come.
And if we do nothing in response, if we refuse to subject the powerful to the rule of law, then the consequences for the West and the broader world will be graver yet.
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