In the period when the abuses were going on, the Senate Intelligence Committee failed to subpoena documents, interview CIA officials, or ask to visit sites where torture was being conducted.
As early as January 2002, National Security Council principals, aware of “potential charges of torture,” began debating whether the protections of the Geneva Conventions, signed by President Ronald Reagan, should apply to captured al-Qaeda or Taliban fighters.
The CIA view was that it required relief from the limitations of the Geneva Conventions. The agency began to look for other countries where it could send the detainees, thinking that they would not then be covered by U.S. law. They were, however, aware of a U.S. statute that barred U.S. citizens from committing torture outside the country.
President George W. Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al-Qaeda and the Taliban. Within months, the government began using “enhanced interrogation” techniques in Afghanistan and at Guantanamo Bay. As time went on, interrogators wanted to use even harsher techniques. In June 2002, it got a ruling from the Justice Department which was described by former assistant attorney general Jack Goldsmith this way: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under color of presidential authority.”
As the Senate Armed Services Committee said in its 2008 report, senior government officials “redefined the law to create the appearance of their legality, and authorized their use against detainees.” But saying torture is not really “torture” by executive decree does not make an illegal action legal. Perhaps President Obama is prepared to look away because he likes the idea of changing the law by executive decree, as he has done with his executive order on immigration.
“Yes, the CIA lied. But all of the other relevant actors knew more than enough to say no. They knew that the CIA was disappearing suspects into secret detention sites — a grave international human rights violation of its own — and then subjecting them to prolonged sleep deprivation, waterboarding, physical assaults, and painful stress positions. This was the brutality that the Senate committee leadership knew about. Yet no one sought to stop it. Torture was not just the work of a rogue agent or agency, but the formal policy of the highest levels of our government, executive and legislative. And we the people are also complicit, as long as we do not demand accountability.” – David Cole, Georgetown U of Law prof
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