Attorney General Mukasey says something that may be regarded today as a crime cannot be investigated because at the time it was committed, the Justice Department did not consider it to be a crime. Waterboarding was deemed legal by the Justice Department at the time it was used by the CIA on three al-Qaeda captives, and as a result the Justice Department "cannot possibly" investigate whether a crime occurred. "That would mean that the same department that authorized the program would now prosecute someone for taking part" in it, he said.
Mukasey reveals the bankruptcy of his office and of his department. This tortured logic would preclude any public body from investigating itself, any police department from reviewing its policies and procedures and investigating wrongdoing of its members. This statement sets a standard for the government different from the standard it holds everyone else to. This is not equal justice.
In testimony last week before the Senate Judiciary Committee, Mukasey said that he believed waterboarding would be torture if it were done to him.
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/07/AR200802...
http://en.wikipedia.org/wiki/Torture
This is pretty commen sense if you ask me. Regardless of one's beliefs on "water boarding" or other actions that blur the line between torture and interogation, I don't think you can argue that laws can be made retroactive for punishment purposes. The implications of such a ruling would open the floodgates to potential prosecution of crimes that weren't crimes when they were committed.
Laws against torture have been in effect for a long, long time. At least back to the Spanish-American War, waterboarding was illegal and considered torture.
Didn't we prosecute the Japenese for waterboarding our soldiers in WWII?
...not members of the armed forces of an opposing state. They would have had more rights if they had been Saddam's "Republican Gaurds". So we can pretty much do anything we want to these poor bastards. Even if they turn out to be innocents turned in by members of opposing tribes, like has happened in Afghanistan. It is rather like the Libertarian belief that until a people gain the concept of the "individual" we don't have to worry about how we treat them. I remember a Libertarian telling me one time that Indians had no rights to "tribal property", that no member of a "tribe" had the right to give up his "individual rights" to a chief, and therefore individual "indians" who sold land to "white men" could do so with impunity since there was no clear title. The "law" only came into play once someone could prove by title that they owned the land. So that all the screwing of the Indian tribes never really happened since they never had "individual" title to any of the lands taken.
"The soldier who participated in water torture in January 1968 was court-martialed within one month after the photos appeared in The Washington Post, and he was drummed out of the Army," recounted Darius Rejali, a political science professor at Reed College.
http://abcnews.go.com/WNT/Investigation/story?id=1356870
Leaves No Marks
"The patient strangled and gasped and suffocated and, at intervals, the toca was withdrawn and he was adjured to tell the truth. The severity of the infliction was measured by the number of jars [of water] consumed, sometimes reaching to six or eight," writes Henry Charles Lea in A History of the Inquisition of Spain. "
"The interrogation method was used by the Japanese in World War II, by U.S. troops in the Philippines and by the French in Algeria. In Cambodia, the Khmer Rogue used waterboarding against its own people. The British used it against both Arabs and Jews in occupied Palestine in the 1930s. In the 1970s, it was widely used in Latin America, particularly under the military dictatorships in Chile and Argentina (where it was known as "Asian torture.")"
http://www.npr.org/templates/story/story.php?storyId=15886834
Here's a good history of our recent legal take on waterboarding:
"In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.
Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.
That's how Americans have come to reconcile themselves to illegal warrantless eavesdropping and to prisoner abuse at Guantanamo Bay. It's why we're no longer bothered in the least by the abuse of national-security letters or extraordinary rendition or by presidential signing statements. Deny, admit, codify, then immunize. The law as quickstep."
http://www.slate.com/id/2182348/nav/tap3/