Attorney General Eric Holder has once again denounced the use of waterboarding, stating in a speech before the Jewish Council of Public Affairs that "waterboarding is torture ... My Justice Department will not justify it, will not rationalize it and will not condone it." In support of this stance, President Obama in January ordered that all government officials abide by the US Army Field Manual during interrogations.
Once again, I will say: It doesn't matter what Obama says or does. If waterboarding is to be illegal, if it is to be forbidden for use in interrogations, Congress must pass a law making waterboarding illegal and defining it as torture. If it is Obama who defines waterboarding as torture, he can just as easily change that definition in a subsequent order.
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Not sure I agree about Congress needing to pass a law, but I could be wrong. Here’s the argument, as Commander in Chief, not to mention head of the executive branch, why wouldn’t the executive order he issued be law? The EO states that people under his control - i.e. the military and the intelligence communities who are doing the interrogation – must follow rules and laws already passed regarding torture, and explains what some of those rules means. Such an executive order, made pursuant to laws already in place, is done to clarify what the law means, and therefore has the equivalent of the force of law. In his executive order, Pres. Obama cites a variety of domestic and international sources for the policy, e.g.: Federal torture statute, 18 U.S.C. 2340 2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, the army field manual Common Article 3, Geneva Convention, etc.
James: You're of course right that an executive order has the force of law. And so long as the executive order stands, it's law. But if the "law" forbidding waterboarding is an executive order then an executive order can also change that "law." If Congress doesn't act, it's trusting that Obama would not, if it had sufficient reason to do so, change that law. And Panetta has already said that the CIA reserves the right to go beyond the Army Field Manual procedures if necessary. If it's not waterboarding, it will be something else equally, if not more, objectionable. That's why Congress needs to pass a law defining what is and what is not torture, and what coercive interrogation practices should be allowed. Otherwise, the decision rests with the president.
In case you are interested, Christopher Hitchens found out what waterboarding was like firsthand:
http://www.youtube.com/watch?v=g7u-Wk1aU-E
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