1. Obama and Holder have things completely backwards. The simple passages Glenn highlights provide the roadmap for handling the intelligence operatives who were "just following orders". The two passages are even back to back in Glenn's post:

Geneva Conventions, Article 146:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Charter of the International Tribunal at Nuremberg, Article 8:

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

The Geneva Conventions tell us that there are absolutely no exceptions for prosecution, while the Nuremberg Charter tells us that once we bring charges, "just following orders" can be considered as mitigation in the punishment or sentencing.

Obama and Holder need to withhold their pleas for mercy for these folks until sentencing of any operatives found guilty of torture. Refusing to allow investigations or prosecutions is itself a violation of the Geneva Convention.

2. kegbot1 shows the CIA how it's done:

As a former Army intel soldier, I was taught by professionals (back in the early 90s) that torture rarely if ever yields any useful actionable information and that it was against the Geneva protocols and other laws that our country signed off on.

As for torture, I could never do it. I would (and have) scuttled my career to walk away from such barbarism. But within 300 million people we have no shortage of people willing to do the job. And that, to me, is the saddest thing of all.

-- kegbot1

Thank you for your principled actions, kegbot1.

I think that there had to be operatives within the CIA who are just as principled as kegbot1. If someone who refused to torture and resigned finds a way to come forward, prosecution of those who ordered and carried out torture will become much easier. Their safest route may well be to go directly to Pat Leahy or Sheldon Whitehouse for protection as they share their story in secret testimony to a joint session of the Judiciary and Intelligence Committees. If there were resignations of operatives who refused to torture, those who took their place and those who ordered the next operative to torture become even more twisted in their actions.

I missed that reference. If you can tell me which memo and which page, I can add that as an update before the editing window expires.

I slapped together a quick Oxdown with passages from two of the memos. They go from saying that no water enters the prisoner's lungs in the Bybee 2002 memo to Bradbury in the May 30, 2005 memo showing that they used potable saline instead of plain water to prevent pneumonia (admitting water gets into the lungs) and to prevent hyponatria (admitting prisoners swallow inordinate amounts of water). There is also "mission creep" in the intervening three years, dramatically expanding the amount of time a prisoner spends on the board.

except when it comes to prosecuting CIA agents for carrying out orders to torture.

Nuremberg Defense is still operable in DC.

Otherwise, however, it looks like Obama has shown much more courage than we feared. Good for him if only names are redacted.

From AP:

Obama issued a statement accompanying Thursday's release of four significant memos written by the Bush administration in 2002 and 2005. The president said that the interrogation techniques outlined in the memos "undermine our moral authority and do not make us safer."

Obama said he believes some national security information must remain classified, but that these graphic memos are different. Obama said withholding them would deny facts already in the public domain and would contribute to an inaccurate accounting of the past.

Encouraging on its face, but we need to see the extent of redaction before knowing if he really has done the right thing.

Here's the full text of the memo:

Department of Justice Releases Four Office of Legal Counsel Opinions

In connection with ongoing litigation, the Department of Justice today released four previously undisclosed Office of Legal Counsel ("OLC") opinions – one that OLC issued to the Central Intelligence Agency in August 2002 and three that OLC issued to the CIA in May 2005.

"The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture," said Attorney General Eric Holder. "We are disclosing these memos consistent with our commitment to the rule of law."

Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

After reviewing these opinions, OLC has decided to withdraw them: They no longer represent the views of the Office of Legal Counsel.

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