Vyan over at Daily Kos makes a good case that administration officials, despite numerous CYA efforts on torture, and collaborative efforts from Congress (in the form of the 2006 Military Commissions Act), are vulnerable to prosecution under 18 USC 2441 of the War Crimes Act. The relevant crime (of those still open to potential U.S. prosecutors): conspiracy.
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.As Vyan points out, no matter how Congress or the administration try to slice and dice it, their torture activities have resulted in dead bodies, and no amount of legislation can wash that blood away.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
...44 US military autopsy reports on the ACLU website -evidence of extensive abuse of US detainees in Iraq and Afghanistan 2002 through 2004. Anthony Romero, Executive Director of ACLU stated, "There is no question that US interrogations have resulted in deaths." ACLU attorney Amrit Sing adds, "These documents present irrefutable evidence that US operatives tortured detainees to death during interrogations."Oh, yes, and John Yoo, author of at least two legal memos giving a purported legal rationale to the Bush Administrations torture program? When last seen, Yoo was refusing to testify before the House, which is holding hearings on torture in the Judiciary Committee on May 9.
From ABC via Thinkprogress:
We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch.This has worked for the administration thus far. Why should we believe it will be any different this time?
Who with any power in this country will stand up against the torturers and murderers who run this country -- and I mean stand up in a court of law or a congressional panel?
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I want to note, however, that the Military Commissions Act of 2006, passed with Democratic Party support, made significant changes to 18 USC 2441. Here's from the text of that bill:
Revision to War Crimes Offense under federal criminal code. S. 3930 would narrow the War Crimes Offense (18 USCS § 2441) by striking part of the current definition of the term “war crimes” which reads:
(c) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict;
It would replace that subsection with:
(c) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; (emphasis added)
S. 3930 would add subsection (d) to the War Crimes Offense to enumerate and further define conduct that would constitute a “grave breach” of common Article 3: torture, cruel and inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages (does not apply to wartime prisoner exchanges).
Cruel and inhuman treatment would include inflicting “serious physical pain or suffering,” which, for the purposes of subsection (d), means bodily injury that involves substantial risk of death, extreme physical pain, a serious burn or disfigurement, or significant loss or functional impairment of a bodily member, organ, or mental faculty. Further, “serious mental pain or suffering,” in the cruel and inhuman treatment definition, for the purposes of subsection (d) would have the same meaning as “severe mental pain or suffering” (defined in another section of Title 18) save that “serious” would replace “severe” and, as to conduct that occurs after this Act is enacted, “serious and non-transitory mental harm (which need not be prolonged)” would replace “prolonged mental harm.”
The bill would also define several other terms as they are defined in other parts of Title 18 of the United States Code.
The new subsection (d) would also specify that the standard of intent required for grave breaches, especially murder, mutilation or maiming, or intentionally causing serious bodily harm, precludes offenses caused by collateral damage or death, damage, or injury incident to a lawful attack.
The bill’s changes to the War Crimes Offense would apply retroactively to November 27, 1997, except as to the “serious mental pain or suffering” definition within the context of Cruel and Inhuman Treatment.
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