The judicial branch (which, under Marbury v. Madison, has the ultimate duty to determine "what the law is") has determined that waterboarding is torture (see U.S. v. Lee, decided in 1984 by the U.S. Court of Appeals for the 5th Circuit). The Bush administration has admitted to waterboarding captives. The corpus delicti of that crime exists. For there to be investigation now is unexceptional.This comes close to Whitehouse's daring them to sue him. It gets better:
The only exceptional thing is the parties involved: the former vice president of the United States, his counsel David Addington, Office of Legal Counsel (OLC) lawyer John Yoo and their private contractors Bruce Jessen and Jim Mitchell, psychologists who designed the torture program. But in America, high office does not put one outside the law. Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.
Looking only at the evidence that has become public so far, is there a viable theory of criminal liability arising out of this corpus delicti, the torture of America's captives?Read the whole thing -- it's remarkable to see something so straightforward and informed from a sitting U.S. senator (the article made me check whether Whitehouse is still in office).
There is substantial evidence of legal malpractice by lawyer Yoo. His opinions were even withdrawn under the Bush administration, and they are the subject of an unprecedented internal investigation by the Department of Justice. For one thing, the precise case on point was overlooked. The analysis is bad enough that it could be a sham. Investigation would reveal whether this was the result of incompetence, ideology or instruction.
There is substantial evidence of a back channel between Addington and Yoo. It is not yet clear what information or instructions passed along that back channel. It does appear to have sidelined regular chains of reporting, including the attorney general. Investigation would determine whether this was communication or conspiracy.
There is substantial public evidence of exceptional access provided to the private contractors. They were allowed to repeatedly interrupt and ultimately compromise one of the most productive interrogations in our fight against terrorism. As contractors, they were outside the military and government chains of command and reporting and thus were potentially a means of direct secret access between the White House and the torture chamber. Investigation would reveal whether this was abused.
Wouldn't Whitehouse love for Yoo, Jessen, or Mitchell (Cheney and Addington surely are too savvy) to sue him, and then plead truth as a defense? Remember how Oscar Wilde ended up in jail.