I am not a crazed lefty lawyer so I never understood how Holder could have gotten past the legal cover provided to CIA operatives by the DoJ OLC opinions; the Spanish quest was more Quixotic, but I am still somewhat surprised.
IN OUR NAME: The newly released torture memos are cold-blooded and clearly client-driven - the lawyers knew the answers they wanted and reasoned backwards. Quick thoughts:
1. The US concern about actually harming someone comes through on every page. In fact, at one point (p. 36 of .pdf) the legal team wonders whether it would be illegal for the interrogators to threaten or imply that conditions for the prisoner could get even worse unless they cooperate. I suppose these memos will provide welcome reassurance of our underlying civility to both the world community and the terrorists in it.
2. There are some fascinating legal gymnastics on display. My favorite might be on p. 39, where we learn that Article 16 of the Geneva Convention does not apply because the CIA is operating in areas not under US jurisdiction. Nor do the protections of the US Constitution extend to aliens being held prisoner under US control but abroad outside of US jurisdiction.
However, another contender for the "It Would Take A Lawyer To Think Of This" prize is the argument that waterboarding does not constitute a threat of imminent death because, even though the prisoner thinks they are drowning, they are not, and anyway, the mental effect is transitory and does not result in long term mental harm - call it the "Psych!" defense. (The absence of long term harm comes from the experience of US sailors and soldiers passing through SERE school in the service of their country; whether a jihadist waterboarded by the Great Satan would also rebound psychologically is not explored here). I would think that a game of Russian Roulette played with a fake bullet might pass all these requirements other than the SERE experience.
TALK IS CHEAP: Imagine with me that terrorists kidnap Sasha, Malia, and their little dog, too, but the good guys manage to capture one of the terrorists during the incident. Does anyone really believe Barack Obama would sit still for a lot of rhetoric from Eric Holder about American ideals and the rule of law? My (obviously unprovable and, pry God, never to be tested) belief is that Obama would instruct Holder to go explain his views to Michelle, with the understanding that after Michelle strangled him and his death was correctly ruled a suicide, Obama would dust off the old Bush memos, resurrect the old Bush interrogators, and find an Attorney General who would get results.
So why the current posturing from Obama? Well, it is possible that he really is this idealistic about the rule of law and America's moral leadership of the world as long as the threat is only to abstract strangers, and he may actually be comfortable letting strangers die for his "beliefs" and in order to keep his halo nicely buffed. That said, I'm not actually worried for my own family - if somehow my kids were caught up in such a scenario, well, my kids are cute as all get out and would surely poll well, so I expect Obama would figure out he needed to do the right thing.
"Cheap grace" is the phrase I am looking for - the guy who was, for example, committed to public campaign finance as an important principle of fair elections dropped that principle as soon as it became helpful to him to do so. And he would drop this "no torture" rhetoric just as quickly if someone tthat mattered to him was affetectd by it. I am just troubled by his current eagerness to pretend that the safety of the good preople of the United States is not a priority.
Q or O has related thoughts.
DO NOT ATTEMPT THIS AT HOME: For Russian Roulette players, by "fake" bullet I meant a disarmed, inactive, powder free bullet or a facsimile thereof; a blank can deafen or kill.