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In the George W. Bush era, how did government organizations get away with using torture? Obviously it was illegal. What legislation did they pass, and what did Obama undo? In this article, it talks about how Obama refused to prosecute those who made torture legal. I guess this implies that it's as simple as changing a law to make torture standard practice?

...Obama refused to prosecute those responsible for sanctioning torture...

  • Often it is difficult to persecute people for something that was not strictly illegal at the point, even if later it is. I guess people just don't want to have too many disruptions. Retroactive justice has its advantages and disadvantages. – Trilarion Jan 10 '17 at 7:43
55

The Bush administration asserted that "enhanced interrogation" techniques like waterboarding were not torture and not illegal. The Obama administration asserted that they were torture and were illegal. The law itself did not change, just how the two administrations interpreted it.

From MSNBC:

In one of his first acts as president, Obama signed an executive order that banned the use of torture by the CIA And three months later, his administration released Justice Department memos that revealed some of the arguments that Bush administration lawyers used to approve them.

An executive order is not a law. It's basically an instruction from the president that his employees have to follow. Note that in some cases, an executive order can cause regulations to change. Regulations are more like law. They are basically the details of how the administration is enforcing legislation.

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    Upvoted. This is missing the historical perspective though. This is not a brand-new technique, and it is far more historically accurate to say that it has historically been considered torture, and the Bush Admn. was highly unusual in claiming it wasn't. I approve of the attempt at balance, but sometimes that can give a misleading impression. – T.E.D. Jan 9 '17 at 20:13
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    That's what I don't get, if no one technically broke the law, then how could Obama have tried to prosecute them? – ESamual Jan 10 '17 at 5:39
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    @ESamual "That's what I don't get, if no one technically broke the law, then how could Obama have tried to prosecute them?" Who says no-one broke the law? Maybe they misinterpreted it. You would have to drag them to court to find out if and how they broke the law. Since nobody did this... If you are a US citizen you could try and sue George W. Bush for commanding illegal torture... maybe you would succeed. – Trilarion Jan 10 '17 at 7:45
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    So the gist is, that we simply don't know if torture was ever illegal or not since nobody (with enough authority) challenged the interpretation of the time (that it wasn't). – Trilarion Jan 10 '17 at 7:47
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    @Trilarion Negative. Torture has been illegal for a while. There was never an attempt to make torture legal. Rather, they categorized the actions they were taking as "not torture" but enhanced interrogation techniques. – Drunk Cynic Jan 10 '17 at 17:43
14

John Yoo's famous (or infamous) "Torture Memorandum" on enhanced interrogation is the justifying document which should be referred to.

In it, he asserts the word "torture" is ill-defined by existing law and proceeds to define a framework by which the Administration can operate without violating law. He goes into detail about what constitutes "suffering", "injury", "permanent harm", etc.

Like Brythan says, the Bush administration asserts no law was violated because enhanced interrogation is not torture. While the Obama administration claims it was indeed torture, no one was charged, which in my opinion gives greater weight to the Bush claim.

Essentially, Yoo determined exactly where the line between torture and "not-torture" was then walked right up to that line.

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    no one was charged, which in my opinion gives greater weight to the Bush claim. Uhhh... no. The fact that nobody has been charged probably was more to avoid all the political implications of prosecuting state officials who were torturing detainees with the -publicly stated- go ahead from the Bush administration. Prosecuting the people administering the "enhanced techniques" would have lead to claims that they were following the chain of command, and a demand of responsabilities from the higher-ups. – SJuan76 Jan 10 '17 at 2:15
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    Re "determined exactly where the line ... was": another interpretation might be that Woo was tasked with moving the goalposts of war crime. – agc Jan 10 '17 at 4:19
  • Could you link to the memo? Is it available somewhere? – indigochild Jan 10 '17 at 15:48
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    "...which in my opinion gives greater weight to the Bush claim". It shouldn't. The people doing it were explicitly told by the Bush administration's courts that this was legal under their interpretation of the law. If the interpretation of the law changes later though, you can't later charge them for something they were explicitly told was legal - unless it's something covered by international laws such as the Geneva Convention or the Genocide Convention which trump any national laws. – Graham Jan 11 '17 at 13:10
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    @Graham Are you sure? The Attorney General's web page says nothing about this. Rather, it says that the AG is the US Government's most senior lawyer, and that their job is to give legal advice and opinions to the Executive. It says nothing about them being able to instruct the courts on how to interpret federal law. – David Richerby Jan 11 '17 at 18:49
8

On the policy level, by aggressive use of obligatory euphemisms as propaganda.

Giving unbiased subordinates commands which sound criminal, even to a layperson, (e.g. "I order you to torture the prisoner"), might meet with disbelief, refusal, or whistle-blowing. Vague euphemisms however, (e.g. "I order you to administer enhanced interrogation techniques to the prisoner"), can initially baffle potentially skeptical subordinates into reflex compliance, after which positive reinforcement helps reassure the compliant that obliviousness and hierarchical safety go together.


There's some experimental support for the effectiveness of such indirect and euphemistic language. Milgram's replicable tests of civilian obedience successfully employed bland verbal prods and assurances that helped compel the obedient to choose or not choose whether they might continue (apparently) electrocuting a screaming person:

Please continue.
The experiment requires that you continue.
It is absolutely essential that you continue.
You have no other choice, you must go on.
Although the shocks may be painful, there is no permanent
tissue damage, so please go on
Whether the learner likes it or not, you must go on until
he has learned all the word pairs correctly, so please go on.
  • 1
    While interesting, this is not about the legality (which is what the question asks). This is therefore not a good answer, but would be an excellent comment. – AndyT Jan 11 '17 at 9:32
  • @AndyT, The OP asks "how did government organizations get away with using torture?", and a getaway is a more general process than legal defense alone. Successful organized crime, (whether gangland, corporate, or governmental), often relies on limiting public awareness, and vitiating ordinary mechanisms of prosecution, which may reduce or even evade any need for legal argumentation. It's not a complete answer, but rather a facet of one that other answers have neglected. – agc Jan 11 '17 at 10:33
  • Hmmm. The question is tagged <law> and all the other sentences within the question body and title refer to legality. Obviously I can't read the OP's mind, but to me it is clear that the sentence about "getting away with it" is intended to be related to the legal aspects of it. – AndyT Jan 11 '17 at 10:46
  • @AndyT, we agree the OP phrase "get away with" includes the legal aspects, but differ as to whether the scope of such a getaway should be narrowly legal or inclusive of other criminal methods. The breadth of the methods used seems to favor the inclusive view -- aside from the torture itself, the CIA "loses" 6700 page documents, and persecutes torture whistleblowers, etc. – agc Jan 11 '17 at 11:04
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    @DavidRicherby, thanks for the advice, and correction about that The Hill article -- I skimmed and was mislead by a vague lead sentence, "The CIA’s inspector general has accidentally deleted its only copy of a controversial Senate report about the agency’s history of brutal interrogation techniques, opening a new front in the long battle over the document." I'd supposed the pronoun "its" signified the CIA, not the Office of the CIA's Inspector General. – agc Jan 12 '17 at 15:46
1

To sum up this article by politifact, there are grounds for them to be tried by certain governments but is unlikely due to the consequences on relations with the US. According to this article on wikipedia, the Kuala Lumpur War Crimes Commission (in Malaysia) issued a guilty verdict to Bush and some of his Cabinet, though the legal legitimacy of the commission is debatable.

1

The first part of your question has been answered, but I want to comment on your second question...

What did Obama undo?

Essentially nothing. In fact, many astute political observers believe that Obama never intended to do anything in the first place. He just preached "change" in order to get elected.

I read an article in which Obama offered a mind boggling excuse for doing nothing. He said that when he got elected, there was a general consensus that Gitmo should be closed. So why didn't he close it immediately?

He said the consensus gave him the latitude to take his time and "do it right." So, rather than rush in and close Gitmo, he bided his time.

But Obama was left out in the cold when his general consensus evaporated. Suddenly, Republicans wanted to keep Gitmo open, and, of course, Obama was held captive by Congress.

I can't remember the URL or title of this article; I'll post it if I can find it. But the article I linked to below probably sums it up.

Why Obama has failed to close Guantanamo

I think I would have closed Guantánamo on the first day. [but the politics had got tough, and] “the path of least resistance was just to leave it open.

0

Re-visiting after a while I feel another answer is justified.

You are actually asking several distinct questions:

  • How did George W. Bush make torture legal?
  • What did Obama undo?
  • How did government organizations get away with using torture?

I'll answer the first and the third one.

In your post you make a statement which already contradicts the premise of the first question:

"Obviously it was illegal."

I fully agree with your own statement: The government (Bush, congress) didn't make torture legal, because they couldn't. Nobody can. Torture is illegal and stays illegal. This is even though there were written laws and interpretations allowing torture, or denying that e.g. waterboarding is torture.

It is unusual to claim that a body of law and law interpretation which has been produced in a process conformant with the constitutional rules — the positive law — does not constitute applicable law. Such claims are only made when the results of the legal process deviate far from commonly accepted "self-evident" principles — usually human rights —, even though their conception was formally compliant and the resulting law forms a formally consistent body. The key is "self-evident". A sensible individual could simply tell that the written law was not abiding by commonly required standards.

The GDR soldiers killing fugitives climbing the Berlin wall were sentenced with such an argument because they did nothing forbidden according to GDR law. In its decision, the highest German court applied formerly established principles:

"Der Widerspruch des positiven Gesetzes zur Gerechtigkeit muß so unerträglich sein, daß das Gesetz als unrichtiges Recht der Gerechtigkeit zu weichen hat" ("the discrepance between the positive law and actual justice must be so unbearable that the statute as incorrect law has to yield to justice").

Another famous example is the prosecution of crimes committed by the National Socialist government.

Of course "actual justice" is in the eye of the beholder: It is no coincidence that both trials happened after a nation and its legal system ceased to exist. The positive law is usually a formalization of the perceived "actual justice" of a government and its people; it needs a change of the frame of reference to obtain the outside view necessary to perceive an injustice.

This realization is the key to answer your question how the government got away with torture: The U.S. still exists which makes a fundamental change of the frame of reference needed to make "the positive law yield to justice" unlikely.

-4

The history is frightening and interesting.

The hammer driving the nails through the hands of justice and humanity was wielded by some despicable individuals in various positions of legal influence: Specifically John Yoo in the Office of Legal Counsel, the two Attorney Generals involved and other counselors to the president and vice president. They provided legal opinions, collectively called the "Torture Memos", which suggested that torture is legally permitted under the circumstances and that individuals holding prisoners without due process and even individuals torturing suspects would be immune from prosecution.

Note that these opinions were not laws but interpreted existing law producing a legal effect. The president and other government members can formally rely bona fide on an opinion issued by the Office of Legal Counsel — in fact, this is exactly the Office's job. It gives authoritative answers to the government in cases of legal doubt. After the opinions were officially (but secretly) issued it was hard or impossible to hold individuals accountable for actions complying with the opinion: They could always make an innocent face and say "No way! Torture was illegal? But I was told it was not! How could I know!" Such argument has not prevailed in different circumstances, but of course successful prosecution depends on the possibility to prosecute, the will to prosecute, the power of the prosecutor and the power of the prosecuted. You may be interested in the Spanish criminal investigations against the "Bush Six", which include John Yoo. The political problems such a trial causes as well as the political pressure exerted on it are on clear display there.

While legal experts are to blame for flawed or openly malevolent opinions, and agents in the field are to blame for the execution of flawed or openly malevolent policies, it is essential to address the ultimate responsibility. In German we say "Der Fisch stinkt vom Kopf her" (the fish stinks from the head down). The ultimate responsibility for the atrocities clearly lies with the President whose administration felt that the situation warranted ripping out the heart of the Anglo-American law: Habeas Corpus. Everybody did what they did because they felt they had the blessing of the president and vice president: The legal counselors, the commanding hierarchy in the armed forces and the agencies, the soldiers, the torturers. It is amazing and sobering to see how fast all bulwarks and rules which protect the individual from executive overreach evaporate when they lack support. Not just any rules — 800 year old rules which were written in blood after long and hard fights: Do not kill. Do not torture. Do not hold individuals without judicial review.

Further reading can start at the Wikipedia article on the Torture Memos, the Torture Memo Guide in the New York Times or a number of books. I can recommend The Dark Side.

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    How does this answer the question? This is commentary at best. – enderland Jan 9 '17 at 15:48
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    Incidentally, that's the same way the Obama administration got away with illegally collecting phone call metadata on hundreds of millions of Americans without any due process. They 'reinterpreted' part of the PATRIOT Act to authorize it, even though its own author said that it wasn't intended to do so. – reirab Jan 9 '17 at 20:13
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    @reirab The meta damage that Obama (the constitutional law scholar!) did to the political system is significant. He doesn't like Guantanamo, but that appears to be more a matter of taste, or of PR. Cf. extra-legal drone killings. Of course the legal landscape in the war and terrorism twilight zone is still evolving, and all legal discussion is tainted with cultural and power issues. But I guess if you can kill people with a drone you can as well hold them, torture them and put them in Guantanamo. – Peter A. Schneider Jan 9 '17 at 20:28
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    I think that the content in this answer seems fine(I can't vouch either for or against it's correctness), but your answer would likely be better received if you editorialized it less. Your goal should be to make your audience understand exactly what happened and how. Going off on related tangents about how immoral it was only serves to distract people. If you're using this question as a vehicle to get some other point across, you're probably doing it wrong. – Sam I am Jan 9 '17 at 21:11
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    The opening paragraph is far too rhetorical and bombastic, but there's the kernel of a good answer in here. – barbecue Jan 10 '17 at 18:12

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