Any court hearing the allegation that the specific interrogation techniques applied to KSM constituted torture would be confronting a question of first impression. Were I advising someone litigating the issue, I’d probably tell them that there’s a good chance that a court would find that these specific waterboarding techniques are illegal. Yet my advice would turn less on the analysis of legal language and controlling precedent than on how I assessed the political climate and what I knew about the judge hearing the case. It would matter, for instance, how soon after 9/11 the litigation occurred and whether the judge was appointed by a Republican or Democratic president.
Consider two observations from Andrew Sullivan about Dick Cheney’s recent criticism of the Obama’s anti-terror policies, posted yesterday a little over twelve hours apart. At 10:28 a.m. Andrew wrote (my emphasis):
Cheney, in other words, is engaged in a cover-up that reveals a guilty mind."I believe [Cheney’s criticism] is very rational, an attempt to wrest the narrative away from the truth that he authorized horrifying war crimes, that he is criminally liable for them and will be described in history as the vice-president who made the US a symbol for torture throughout the world."
Shortly afterward, Cheney said on national television that he “was a big supporter of waterboarding.” That’s some cover-up.
At 10:40 p.m. Andrew posted this (my emphasis):
Leave aside the fact that only someone without the foggiest idea of how the law works would speak of “legal facts” in this connection. What are we to make of the fact that Cheney, who’s nobody’s fool, can’t be bothered concealing conduct that someone as smart and influential as Andrew Sullivan regards as patently criminal? Can any fair legal system apply standards of criminality that are politically contested? Can any fair political system resort to criminal law to resolve political arguments?"There is not a court in the United States or in the world that does not consider waterboarding torture. The Red Cross certainly does, and it's the governing body in international law. It is certainly torture according to the UN Convention on Torture and the Geneva Conventions. The British government, America's closest Western ally, certainly believes it is torture. No legal authority of any type in the US or the world has ever doubted that waterboarding is torture. To have subjected an individual to waterboarding once is torture under US and international law. To subject someone to it 183 times is so categorically torture is it almost absurd to even write this sentence. . . . The question is therefore not if, but when, he is convicted as a war criminal - in his lifetime or posthumously. These are not my opinions and they are not hyperbole. They are legal facts."