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Fear Rules the Day
Dan Eggen raises that question in today's Washington Post, and comes up with a possible answer: "The issue promises to play a role in the historic military prosecution of six al-Qaeda detainees for allegedly organizing the Sept. 11, 2001, attacks, in cases described by the Defense Department on Monday."
And knowing that, the administration's strategy of acknowledging waterboarding but arguing that it was legal "appears to be aimed primarily at ensuring that no CIA interrogators face criminal prosecution for using . . . methods that top White House and Justice Department lawyers approved."
That said, as Eggen notes: "The government's defense of the waterboarding episodes, laid out in congressional testimony and administration statements over the past two weeks, relies on a complex legal argument that many scholars and human rights advocates say is at odds with settled law barring conduct that amounts to torture, at any time or for any reason."
Meanwhile, the BBC reports that Supreme Court Justice Antonin Scalia -- known to be a big fan of Jack Bauer, the hero of the Hollywood torture show "24" -- "told the BBC that 'smacking someone in the face' could be justified if there was an imminent threat.
"'You can't come in smugly and with great self satisfaction and say "Oh it's torture, and therefore it's no good",' he said in a rare interview."
The St. Petersburg Times editorial board writes: "Waterboarding is torture and has been clearly viewed as such for more than 100 years. A U.S. major was court-martialed in 1901 and sentenced to 10 years' hard labor for having used waterboarding against a prisoner in the Philippines. We have prosecuted enemy combatants for using it against our troops.
"So when Attorney General Michael Mukasey says he won't open a criminal investigation into the CIA's waterboarding because the Justice Department had approved the technique, he is playing a game. In the Bush administration, all it takes for crimes to get excused is for a willing and complicit Justice Department to pre-approve it. How convenient."
Matthew Lee writes for the Associated Press: "The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terror attacks by recalling the executions of Nazi war criminals after World War II. . . .
"In it, the department advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the 9/11 cases. . . .
"The cable makes no link between the scale of the crimes perpetrated by the Nazis, which included the Holocaust that killed some 6 million European Jews and other minorities, and those allegedly committed by the Guantanamo detainees, who are accused of murder and war crimes in connection with 9/11, in which nearly 3,000 people died."
Josh White, Walter Pincus and Julie Tate write in The Washington Post that some of the civilian lawyers representing terrorism suspects held by the military at Guantanamo Bay "say the Defense Department's regulations for their work are so onerous that they will be unable to provide a fair and adequate defense of their clients."
ThinkProgress.org has a clip of Charles Swift, the former U.S. Navy attorney who represented a Guantanamo prisoner in a Supreme Court case, telling CNN: "If we use waterboarded testimony in that trial, to my knowledge . . . the last precedent for using that kind of testimony was the Spanish Inquisition.