As If We Needed More Convincing

From the Atlantic Wire:

One of the most vocal human rights groups in the U.S. is calling on foreign governments to prosecute President George W. Bush and his former cabinet for war crimes, given that the Obama administration has avoided the issue. In a report published today, New York-based Human Rights Watch says Bush, former vice president Dick Cheney, former defense secretary Donald Rumsfeld and former CIA director George Tenet could be prosecuted under the 1996 War Crimes Act, among other laws. "There is enough strong evidence from the information made public over the past five years to not only suggest these officials authorized and oversaw widespread and serious violations of US and international law, but that they failed to act to stop mistreatment, or punish those responsible after they became aware of serious abuses," read the report. It accused the Bush administration of approving waterboarding, authorizing the CIA's detention program and carrying out illegal abductions involving torture, saying an investigation is necessary "if the US hopes to wipe away the stain of Abu Ghraib and Guantánamo and reaffirm the primacy of the rule of law." The author of the report, Reed Brody, says he's calling on an investigation now because "[i]t's become abundantly clear that there is no longer any movement on the part of the Obama administration to live up to its responsibilities to investigate these cases." As the BBC notes, President Bush has "defended some of the techniques, saying they prevented attacks and saved lives." [emphasis added]

I realize that President Obama has a great deal to deal with right now, what with the GOP holding the economy hostage in order to guarantee their millionaire and billionaire base pay as little tax as possible, but war crimes are war crimes.

And war crimes were committed. Failing to prosecute (or at least investigate) them is covering them up. Obama is letting Bush get away with torture. And that's indefensible.

Here's the report.

From the Summary:

For example, the Bush administration authorized coercive interrogation practices by the CIA and the military that amounted to torture, and instituted an illegal secret CIA detention program in which detainees were held in undisclosed locations without notifying their families, allowing access to the International Committee of the Red Cross, or providing for oversight of their treatment. Detainees were also unlawfully rendered (transferred) to countries such as Syria, Egypt, and Jordan, where they were likely to be tortured. Indeed, many were, including Canadian national Maher Arar who described repeated beatings with cables and electrical cords during the 10 months he was held in Syria, where the US sent him in 2002. Evidence suggests that torture in such cases was not a regrettable consequence of rendition; it may have been the purpose.

At the same time, politically appointed administration lawyers drafted legal memoranda that sought to provide legal cover for administration policies on detention and interrogation.

The report gives a handy outline of the US laws violated. From the section titled Individual Criminal Responsibility:

The acts and abuses discussed in this report violate various provisions of US federal law, including the Crimes and Criminal Procedure Statute, Chapter 18 of the US Code (U.S.C.), which prohibits: torture (section 2340A(a)); assault (section 113); sexual abuse (sections 2241-2246); kidnapping (section 1201); homicide (sections 1111-1112 and section 2332); acts against rights (for example, sections 241-242, prohibiting conspiracies to deprive persons of their legal rights); war crimes (section 2441); conspiracy and solicitation of violent crimes (sections 371 and 373); and conspiracy to commit torture (section 2340A(c)).

The War Crimes Act of 1996 provides criminal punishment for whomever, inside or outside the United States, commits a war crime, if either the perpetrator or the victim is a member of the US Armed Forces or a national of the United States. A “war crime” is defined as any “grave breach” of the 1949 Geneva Conventions or acts that violate Common Article 3 of the four Geneva Conventions. “Grave breaches” include “willful killing, torture or inhuman treatment” of prisoners of war and of civilians qualified as “protected persons.” Common Article 3 prohibits murder, mutilation, cruel treatment and torture, and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

In a section titled "Duty to Investigate and Provide Redress" we read:

Under international law, states are obligated to investigate credible allegations of war crimes and serious violations of human rights committed by their nationals and members of their armed forces, or over which they have jurisdiction, and appropriately prosecute those responsible.

War crimes are serious violations of international humanitarian law committed willfully—that is, deliberately or recklessly—and give rise to individual criminal responsibility. Individuals may be held criminally responsible for directly committing war crimes or for war crimes committed pursuant to their orders. They may also be held criminally liable for attempting to commit war crimes, as well as planning, instigating, assisting, facilitating, and aiding or abetting them.

The US also has a duty to investigate serious violations of international human rights law and punish the perpetrators. As a state party to the International Covenant on Civil and Political Rights (ICCPR), the US has an obligation to ensure that any person whose rights are violated “shall have an effective remedy” when the violation has been committed by government officials or agents. Those seeking a remedy shall have this right determined by competent judicial, administrative, or legislative authorities. And when granted, these remedies shall be enforced by competent authorities.

But if investigations/prosecutions won't be happening here in the land of the brave, home of the free, perhaps they can occur else where.

From the section on Foreign State Proceedings:

The US failure to conduct criminal investigations into the role and responsibility of high-ranking civilian and military officials for alleged crimes against detainees has opened the door for national judicial systems in foreign states to pursue investigations and, if warranted, prosecutions under the doctrines of “universal jurisdiction” and “passive personality” jurisdiction.

Among my many disappointments with the Obama administration, this has to be the disappoint-iest.

Disappointments based on policy or political realities are one thing, but letting someone get away with a war crime is something completely different.

Prosecute the war crimes. It's the only right thing to do.

Torture News - Good, Bad and Ugly

From last Thursday:

The Justice Department inquiry into CIA interrogations of terrorist detainees has led to a full criminal investigation into the deaths of two people while they were in custody in Iraq and Afghanistan, Attorney General Eric Holder announced Thursday.

The attorney general said that he accepted the recommendation of a federal prosecutor, John Durham, who since August 2009 has conducted an inquiry into CIA interrogation practices during the Bush administration. Holder said Durham looked at the treatment of 101 detainees in U.S. custody since the Sept. 11, 2001, terrorist attacks and concluded that only these two deaths warranted criminal investigation. Holder said Durham found some of the 101 had never been held by the CIA.

And more from the Washington Post:

The Justice Department did not say which cases are being investigated, but U.S. officials said they are the death of an Afghan, Gul Rahman, in 2002 at a prison known as the Salt Pit in Afghanistan, and that of an Iraqi, Manadel al-Jamadi, who was questioned by three CIA officers at Abu Ghraib in 2003.

In the case involving the Salt Pit, known as a “black site” because the U.S. government did not officially acknowledge its existence, a CIA officer allegedly ordered Afghan guards in November 2002 to strip Rahman and chain him to the concrete floor of his cell. Temperatures plunged overnight, and Rahman froze to death. Hypothermia was listed as the cause of death and Rahman was buried in an unmarked grave.

Jamadi, the Iraqi, was captured on Nov. 4, 2003, by a Navy SEAL team hunting a terrorist cell thought to be responsible for a bombing in Baghdad. After initial interrogation efforts, he was transferred into CIA custody and was taken to Abu Ghraib. There he was hooded, placed in an orange jumpsuit and shackled to window bars in a shower room, where he died.

Jamadi’s body was put on ice to preserve it for autopsy. U.S. soldiers posed for photographs with the body — including some in which they gave the thumbs-up sign — provoking international outrage when news organizations showed the images.

The "Good" is that there are now criminal investigations into the torture related deaths that occurred during, at with the OK of, the Bush Administration.

The "Bad" is that this narrowing of an investigation leaves out a whole mess o' torture:

“It is difficult to understand the prosecutor’s conclusion that only those two deaths warrant further investigation,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. “For a period of several years, and with the approval of the Bush administration’s most senior officials, the CIA operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law. The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing.”

After the Sept. 11 attacks, the CIA created a network of secret prisons around the world to confine “high-value” al-Qaeda operatives. The detainees were subjected to what the agency called “enhanced interrogation techniques” — escalating forms of duress that began with slaps to the face and ended, in three cases, with prolonged bouts of waterboarding, which simulates drowning.

Among those held by the CIA were leading al-Qaeda figures, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks, who was waterboarded 183 times after his capture in March 2003.

Let's all say it together, children: Torture is illegal. Approving the use of torture is illegal. Both happened during the Bush Administration, though he tried to cover his tracks by having his office of legal counsel declare it not-torture.

The Good, Bad and Ugly can be summed up in this from the Post:

The Obama administration closed the CIA prisons and barred the use of the enhanced techniques. The Justice Department said it would not prosecute any CIA personnel who acted in good faith and followed the guidance of the Office of Legal Counsel.

As I pointed out in this recent Jack Kelly blog post, none of that actually flies. None of it gets the Bush Administration off the hook - and none of that gets the Obama Administration off the hook either.

From the Conventions Against Torture (signed into US Law in 1996), Article 1:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

And Article 2:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

And:

An order from a superior officer or a public authority may not be invoked as a justification of torture.

So which is worse? Committing a war crime (as the Bush Administration obviously did) or letting the war criminals get away with their crimes (as the Obama Administration is obviously doing)?

As a patriotic American, the day after celebrating our nation's independence, I hang my head in a quiet itching disgust.

Jack Kelly Sunday

Jack fumbles on torture.

In this week's column in the Post-Gazette, columnist Jack Kelly parrots the hardly surprising hard-right meme that whatever President Obama did, he did it wrong.

In this case he's talking about the raid that killed Osama bin Laden.

Our friend Jack took issue with the sometimes contradictory reports of bin Laden's death:

John Brennan, the president's counterterrorism adviser, told reporters Monday that bin Laden, gun in hand, was killed while trying to use his wife as a human shield. On Tuesday, the White House backtracked. Bin Laden wasn't armed. He didn't try to use his wife as a human shield.

Mr. Brennan may merely have been confused about the details. But shouldn't the counterterrorism adviser know such details before talking to reporters?

On this he is, perhaps, correct, though Jack Kelly complaining about other people getting details wrong is an odd thought to ponder.

Isn't it?

But let's get right to the important lie of today's column:

Vital clues to bin Laden's whereabouts came from al-Qaida bigwigs interrogated in secret CIA prisons and at Guantanamo Bay. Two apparently didn't divulge their secrets until they were waterboarded.

Waterboarding is torture, Candidate Obama said. He promised to close Gitmo, but it's still open.

If we didn't know the truth, what can we surmise that Jack's saying here?

• Some al-Qaida big wigs were waterboarded
• They gave up the vital clues to bin Laden's whereabouts in direct response to that waterboarding,

The implication, of course, is that since the waterboarding led directly to the killing bin Laden, Obama was wrong to denounce it. And that we should all siddown and STFU about it.

That's the argument, but is it valid? While the first above bullet is certainly true, the second is not so true.

Let's see if we can inject some facts into this discussion.

Dan Froomkin is a good place to start:

Chronological details of the hunt for bin Laden remain murky, but piecing together various statements from administration and intelligence officials, it appears the first step may have been the CIA learning the nickname of an al Qaeda courier -- Abu Ahmed al-Kuwaiti -- from several detainees picked up after the Sept. 11, 2001, terrorist attacks.

Then, in 2003, Khalid Sheikh Mohammed (KSM), the 9/11 mastermind, was captured, beaten, slammed into walls, shackled in stress positions and made to feel like he was drowning 183 times in a month. When asked about al-Kuwaiti, however, KSM denied that the he had anything to do with al Qaeda.

In 2004, officials detained a man named Hassan Ghul and brought him to one of the CIA’s black sites, where he identified al-Kuwaiti as a key courier.

A third detainee, Abu Faraj al-Libi, was arrested in 2005 and under CIA interrogation apparently denied knowing al-Kuwaiti at all.

Once the courier's real name was established -- about four years ago, and by other means -- intelligence analysts stayed on the lookout for him. After he was picked up on a monitored phone call last year, he ultimately led authorities to bin Laden.

The link between the Bush-era interrogation regime and bin Laden’s killing, then, appears tenuous -- especially since two of the three detainees in question apparently provided deceptive information about the courier even after being interrogated under durress.

So it didn't work. And even if it did, even if a tidbit or two (or twelve) of actionable intelligence were to be squeezed out of a prisoner, it's still illegal.

From the Convention against Torture (made into US Law in 1996):

Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

And:

Article 2

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Still, it didn't work. And repeating the lie a thousand times won't change that.

Let me push back a little (or at least try to):

• Torture doesn't work.
• Torture is illegal.

Andrew Sullivan Debunks

In this comment on the previous post, Blue Number 2 linked to this piece by Andrew Sullivan.

Go read it - it's important.

Torture did not lead to the intel that got bin Laden.

Torture is still illegal.

But Ginny, He IS A War Criminal

My friend Ginny wrote yesterday:

The very day I outed myself as Virginia Montanez instead of PittGirl, Chad Hermann at the Radical Middle latched on to this letter to the editor I wrote when George Bush was re-elected, wondering how my readers were going to like me knowing I was a Republican. This resulted in some uproar from readers who were shocked I ever voted for a “war criminal.” Yes. WAR CRIMINAL. I voted for him because as you already know ME LOVE KILLING! GRRRRR.

But Ginny, why the use of the ironic quotation marks? Bush IS a war criminal and he was when you voted for him in 2004. He approved the waterboarding of Khalid Sheik Mohammed and KSM (as he's known in intelligence circles) was waterboarded in 2003 - well before the 2004 election.

I don't think I need to spell out (again) how waterboarding is torture and how torture is against international and US law and how torture is a war crime, do I?

Even without the Bush-approved torture, the case could be made for war criminal by the invasion of Iraq itself and the dishonesty he used to support it - where were the connections to al-Qaeda? the sale of uranium in Niger? the WMD? They were no where to be found. The foundations for the war were fraudulent even if the war resulted in halting Saddam Hussein's murderous regime. Bottom line is that all that blood (American, Iraqi, British, etc) IS on Dubya's hands.

Whatever else belongs in your otherwise thoughtful and nuanced blog post, the irony quotes don't.

Perhaps I misunderstood (and if I did, then I apologize in advance) and you DO think that Bush is a war criminal and you were merely quoting one or more readers with your use of the quotation marks.

If that's the case, then why the vote for the war criminal?

Another Obama Disappointment

First, no prosecution of his predecessor's admitted torture and now:

President Barack Obama announced Monday his decision to abandon for the moment, perhaps for good, his pledge to voters in the 2008 elections to close the U.S. military prison at Guantanamo Bay, Cuba.

And:

Mr. Obama apparently gave up, believing that he could not persuade Congress to agree either to trials in civilian courts or to imprisonment in America. It is easy to see how he could have reached that conclusion and decided to make the best of a situation that is discouraging, in terms of Americans' perception of U.S. justice, and of how it is seen by the rest of the world.

Even Ronald Reagan was against waterboarding and the use of military tribunals for terrorists. From a Harper's Magazine interview with Will Bunch:

Q: Ronald Reagan signed the Convention Against Torture, and his Justice Department indicted and prosecuted a Texas sheriff for waterboarding. How can his views about torture be reconciled with the current Republican pro-torture dogma?

A: It’s important not to nominate Reagan for sainthood in the arena of human rights. His “Reagan Doctrine” in Central America, leaving the fight to anti-Communist thugs and death squads that the then-president called “the moral equivalent of our Founding Fathers,” is arguably the gravest moral failing of his tenure. That said, back on U.S. soil, Reagan was far to the left of the 2010 Republican Party on issues such as torture. The convention that he signed in 1988 holds that there is no circumstance of any kind that permits torture, which certainly would include the 9/11 aftermath and related anti-terror efforts today.

But it goes even deeper than that. As I noted in an early 2010 blog post: “Reagan would not have approved of drone-fired missile attacks aimed at killing terrorists; as president, he several times rejected anti-terrorism operations for the sole reason that civilians would have been killed by collateral damage. In 1985, he surprised aides such as Pat Buchanan by ruling out a military response to a Beirut hijacking for fear of civilian casualties; Lou Cannon reported then in the Washington Post that Reagan called retaliation in which innocent civilians are killed “itself a terrorist act.” And the idea of trying terrorists in military tribunals as opposed to a civilian court of law? The Reagan administration was completely against that. Paul Bremer (yes, that Paul Bremer) said in 1987, “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law, against them.”

Another Obama disappointment.

More On Bush's War Crimes (An Update)

As today was to be the day when former President George W Bush was to speak in Switzerland, I thought it might be a good idea to follow up on the story.

From the Center for Constitutional Rights:

On February 7, 2011, two torture victims were to have filed criminal complaints for torture against former president George W. Bush in Geneva, who was due to speak at an event there on February 12th. On the eve of the filing of the complaints, George Bush cancelled his trip. Swiss law requires the presence of the alleged torturer on Swiss soil before a preliminary investigation can be open. The complaints could not be filed after Bush cancelled, as the basis for jurisdiction no longer existed.

These two complaints are part of a larger effort to ensure accountability for torturers, including former U.S. officials. So on February 7, 2011, CCR publically released the "Preliminary Bush Torture Indictment." This document presents fundamental aspects of the case against George Bush for torture, and a preliminary legal analysis of his liability for torture and a response to some anticipated defenses. This document will be updated as developments warrant. The exhibit list contains references to more than 2,500 pages of supporting material.

Here's the indictment.The CCR says:

The Preliminary Bush Torture Indictment was prepared so that it could be used for individual victims to file cases against George Bush in any country where the Convention Against Torture provides jurisdiction.

From elsewhere on the CCR website:

“Waterboarding is torture, and Bush has admitted, without any sign of remorse, that he approved its use,” said Katherine Gallagher, Senior Staff Attorney at CCR and Vice President of the International Federation for Human Rights (FIDH). “The reach of the Convention Against Torture is wide – this case is prepared and will be waiting for him wherever he travels next. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. Impunity for Bush must end.”

While the U.S. has thus far failed to comply with its obligations under the Convention Against Torture to prosecute and punish those who commit torture, all other signatories, too, are obligated to prosecute or extradite for prosecution anyone present in their territory they have a reasonable basis for believing has committed torture. If the evidence warrants, as the Bush Torture Indictment contends it does, and the U.S. fails to request the extradition of Bush and others to face charges of torture there, CAT signatories must, under law, prosecute them for torture.

So I guess ole Dubya won't be travelling overseas or otherwise out of the country anytime soon.

Now if only the Obama Administration followed the law regarding torture.

Happy Reagan Day (Part II)

As pointed out previously, this is President Ronald Reagan's 100th birthday.

Now while the wingnuts and the rest of the media regurgitate the usual myths of the Reagan years (Reagan ended the Cold War, Reagan was a tax-cutter, etc), I want to point out some truth.

First, from Think Progress. Did you know that Ronald Reagan raised taxes in seven of his eight years in office?

He did. From the transcript:

Former Senator ALAN SIMPSON (Republican, Wyoming): Ronald Reagan raised taxes 11 times in his administration. I was here. I was here. I knew him. Better than anybody in this room. He was a dear friend and a total realist as to politics.

SCOTT HORSLEY: Simpson's recollection is spot on, says historian Douglas Brinkley, the editor of Reagan's diaries.

Professor DOUGLAS BRINKLEY (Rice University): Ronald Reagan was never afraid to raise taxes. He knew that it was necessary at times. And so there's a false mythology out there about Reagan as this conservative president who came in and just cut taxes and trimmed federal spending in a dramatic way. It didn't happen that way. It's false.

They go on to describe how Reagan never really cut much domestic spending but when his early tax cuts kicked in, he was faced with a decision; cuts in entitlements or raising taxes. Guess what?

...Reagan faced a choice between raising taxes and an even bigger federal debt. He chose the tax hikes.

This is RONALD REAGAN we're talking here.

Did you know that federal spending ballooned during the Reagan Administration. And "ballooned" is not, in fact, my term. It's how Reagan's favorite DC newspaper, the Washington Times described it:

During Reagan’s eight years in office, inflation fell from its staggering late-1970s peak, relations with the Soviet Union thawed, the unemployment rate fell and incomes rose. But measured by other standards, income inequality grew and federal spending ballooned. [emphasis added]

And as Will Bunch, author of Tear Down This Myth points out at the Huffington Post, Ronald Reagan would not have approved of torture. In his letter accompanying his signature on the UN Convention Against Torture, Ronald Reagan wrote:

The United States participated actively and effectively in the negotiation of the Convention . It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

Happy Birthday, Ronnie! Ya soft-on-terror, tax-and-spend, big-guv'ment pragmatist!

More On Bush, Torturer

The Swiss have the right idea about a number of things; chocolate and watches and in this case, justice:

Former U.S. President George W. Bush has cancelled a visit to Switzerland, where he was to address a Jewish charity gala, due to the risk of legal action against him for alleged torture, rights groups said on Saturday.

Bush was to be the keynote speaker at Keren Hayesod's annual dinner on Feb. 12 in Geneva. But pressure has been building on the Swiss government to arrest him and open a criminal investigation if he enters the Alpine country.

Criminal complaints against Bush alleging torture have been lodged in Geneva, court officials say.

The New York Times has more:

The visit to Geneva was to have been Mr. Bush’s first trip to Europe since his memoir, “Decision Points,” was published in November, and the first since he publicly stated in interviews on his book tour that he had personally authorized the use of waterboarding in the questioning of terrorism detainees.

As a result, international human rights groups, including Amnesty International, seized on the scheduled visit to petition the Swiss authorities to open an investigation of Mr. Bush while he was in the country. The groups argued that he had admitted to torture and thus could be prosecuted in Switzerland and other countries that have signed on to the international convention banning torture.

The World Organization Against Torture sent this letter to the Swiss authorities in which they point out the obligations the Swiss have as signatories to the United Nations Conventions Against Torture:

In light of the overwhelming body of available information there can hardly be doubt that there are grounds that were to trigger Switzerland’s obligation to submit cases for investigations into the crime of torture against anybody present on its soil who has authorized, participated or was complicit in the above practices. This would have to include also former President G Bush who had the overall control as commander in chief and as all information suggests authorized, knew and acquiesced into the practices that constitute the crime of torture. Switzerland would also have to take measures against any offender present on its territory to secure his presence for such criminal investigations and proceedings. In this regard, the OMCT considers that neither officials nor former Heads of States can enjoy immunity for the crime of torture under the UN Convention Against Torture, nor can superior orders or the memos drafted by government lawyers and that sought to immunize officials from prospective prosecution under US domestic law, shield them from responsibility under international law.

The US is also signed the those conventions. When can we see the FBI investigate the war criminal?

Bush Again Admits To Torture

(h/t to Crooks and Liars):


Transcript via C&L as well:

CAMERATO: Good morning Mr. President. My name is C.J. Camerato and I’m from Boston Massachusetts and I’m curious, were or are you concerned that legislation that you passed such as the Patriot Act opens the door for potential abuse by future presidencies?

BUSH: Great question. The law that was passed twice by the Congress, once when Republicans controlled the Congress, when we controlled the Congress and once after the ’06 election when we got soundly thumped, guarantee civil liberties and there’s a lot of safeguards in the law. And I don’t think a president can…can, through executive order preempt the safeguards in the Patriot Act. There are plenty of checks and balances in our system and throughout the book and historians will note throughout my presidency that I worked assiduously to make sure that civil liberties were not undermined.

And at the same time, provide the tools necessary for a president, future presidents to be able to protect the homeland and um… look, there’s some very controversial… the Patriot Act was one of the least controversial things I did initially. And then it became a… both parts of the political spectrum became a touchstone of too much government and yet the experts will tell you that the tools inherent in the Patriot Act were necessary to disrupt terrorist’s attacks.

And another interesting point in the book, I learned from history was that a lot of the actions that Harry Truman took made my life easier as president and therefore many of the decisions I made through executive order are the most controversial decisions I made through executive order, such as listening to the phone calls of people who might do us harm, or enhanced interrogation techniques, became the law of the land.

In other words, after the ’04 elections and after the ’06 elections, I went to Congress and said we need to ratify through legislative action that which I had done within the Constitution by executive order. And so the Congress, in spite of the fact that we had been dumped, passed law that now enables a president to have these certain tools.

People say why didn’t you just leave it under executive order? And the reason why is in some cases it might be too hard politically for a president to put out an executive order that for example our authorized enhanced interrogation techniques.

But if that were law of the land as passed by a legislative body it might be easier for that person to use that technique and it was… and so one of the… I think I saw as an accomplishment was to get the Congress to pass much of what I’d done by executive order and in so doing there was embedded in law, concern for civil liberties.

Um, that "listening to the phone calls of people who might do us harm" part? That was illegal.

And the "enhanced interrogation techniques"? We all know that was the waterboarding. It's also illegal.

So don't talk to me about Dubya's concern for civil liberties. He committed war crimes and should be prosecuted. The fact that he wasn't even investigated by the Obama administration will forever stand as one of its great moral failures.

More On Bush Administration Criminal Activity

And you thought the criminal activity in the Bush Administration was limited to domestic surveillance, lying to Congress about yellowcake uranium, outing CIA operatives, and (of course) the torture.

USAToday reports:

A federal agency is reporting that officials in President George W. Bush's White House improperly conducted political briefings on government property, and encouraged employees to get involved in campaigns, meaning that taxpayers footed the bill for political activity.

"As the 2006 election drew nearer, OPA (the White House Office of Political Affairs) became a partisan political organization," reported the Office of Special Counsel, an advisory agency that reviews applications of the federal Hatch Act.

From the report:

OSC cannot pinpoint with certainty the period of time during which OPA rose to the level of a "political boiler-room" during the Bush II administration.

However, OPA engaged in a significant amount of political activity during the 2006 midterm election cycle, such as: conducting partisan political briefings for agency personnel; developing and managing lists of targeted Republicans in upcoming elections; coordinating the travel of high-level agency political appointees to events with targeted Republican campaigns; interfacing and strategizing with the RNC, NRCC, and other political groups; suggesting participation in 72-hour deployment efforts; tracking the results of such volunteer efforts; and tracking money raised at fundraisers attended by administration officials.

OPA employees should avoid engaging in political activities to prevent it from transforming from an official government office into a partisan political operation. Foremost, individuals employed by a political party or partisan political group should never be permitted to operate out of government offices.

You can read the report here.

Granted, using government offices for partisan politicking isn't a war crime (like torture) or probably even an impeachable offence (like circumventing the FISA courts or outing a CIA agent) but it's still against the law.

Too bad justice in DC is so quick that:

Hatch Act penalties call for violators, at most, to be removed from their government positions, so the report would appear to have no impact now that the Bush administration has been out of office for two years.

How many times did we hear in the late 90s that "no one is above the law."

Looks like the Bush Administration was. Or at least they acted like it.

Oh Come ON!!

From MotherJones:

In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. A "confidential" April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.

The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain's National Court indict six former Bush officials for, as the cable describes it, "creating a legal framework that allegedly permitted torture." The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon's former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department's Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation's "universal jurisdiction" law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.

Here's the cable.

The depth of my disappointment knows no limit. Same with my disgust.

The Trib Editorial Board Lies About Torture

In an op-ed at the today's Pittsburgh Tribune-Review, Scaife's braintrust omits a fundamental fact in it's discussion on the Ghailani verdict.

We've written about this before but I want to dive straight into the Trib's deception:

Conviction of a former Guantanamo Bay detainee linked to al-Qaida's 1998 bombings of U.S. embassies in Kenya and Tanzania on just one of 285 counts -- conspiracy to destroy U.S. property -- proves the naivete (or is it idiocy?) of the Obama administration trying suspected terrorists in civilian courts.

The judge's exclusion of a key witness -- because that witness had been identified while Ahmed Ghailani, 36, was in a secret CIA prison where harsh interrogation techniques were used -- hampered the prosecution in federal court in Lower Manhattan.

The reason Trib wants you to believe that the reason that "key witness" was excluded (because "that witness had been identified while Ahmed Ghailani, 36, was in a secret CIA prison where harsh interrogation techniques were used") is where their deception is found.

And how do I know this? Let's take a look at Judge Kaplan's order. First the set-up:

The question presented by this motion is whether the government may use in this criminal trial the testimony of a witness whom the government obtained only through information it allegedly extracted by physical and psychological abuse of the defendant. The government has elected not to litigate the details of what was done to the defendant. Instead, it has asked the Court to assume for purposes of the motion that everything the defendant said was coerced in violation of the Fifth Amendment. Accordingly this decision, at the government's behest, prooeeds on that premise. (page 4)

Kaplan goes onto say that Ghailani was subjected to "enhanced interrogation methods and other allegedly abusive treatment" and that Ghailani gave them the information that led them to the "key witness" Hussein Abebe." On top of that, the then government wanted to call Abebe to testify against Ghailani. (page 5). The judge concluded that that's a violation of the 5th Amendment.

Now look back at how the Trib characterized it. They left out the part that it was Ghailani who identified the Abebe AND they left out the part that he did it after being tortured enhancedly interrogated. All you get from the Trib is that Abebe was identified while Ghailani was at a place where people were being tortured enhancedly interrogated.

How's that for deception? You'd like to think that a "news" organization wouldn't lie to you that blatantly but this is the Trib op-ed page where honesty is a rare commodity.

But the braintrust isn't done. No sirree Bob! Here's the next paragraph:

Thus, an indisputable miscarriage of justice resulted from court-granted protection that Mr. Ghailani -- an enemy combatant, not a U.S. citizen -- didn't deserve and wouldn't have received from a military tribunal at Gitmo.

They're saying that had Ghailani been tried in a military tribunal the coerced information would have been allowed and the terrorist would have been found guilty of even more crimes.

Not so fast.

Take a look at this footnote from Kaplan's order (h/t to mediamatters):

It is very far from clear that Abebe's testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding.

Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the "MCA"). Evidence in such proceedings is governed by the Military Commission Rules of Evidence ("MCRE"). U.S. DEP'T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.).

MCA 948r(a) and MCRE 304 preclude or restrict the use of "statements obtained by torture or cruel, inhuman, or degrading treatment," and evidence derived threrefrom, and could require exclusion of Abebe's testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.

Mediamatters even links back to the MCA to do something the Trib refuses to do - show the evidence supporting their position:

No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

None of which, of course, made it into the Trib's editorial.

Such a short editorial. So much misinformation. Par for the course for Richard Mellon Scaife's Tribune-Review.

More On Bush's Torture (Mayor Of London Has A Warning)

Boris Johnson, the Mayor of London, has a warning of sorts for George W Bush: You may be arrested if you come here.

Take a look:

It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

One moment he might be holding forth to a great perspiring tent at Hay-on-Wye. The next moment, click, some embarrassed member of the Welsh constabulary could walk on stage, place some handcuffs on the former leader of the Free World, and take him away to be charged. Of course, we are told this scenario is unlikely. Dubya is the former leader of a friendly power, with whom this country is determined to have good relations. But that is what torture-authorising Augusto Pinochet thought. And unlike Pinochet, Mr Bush is making no bones about what he has done.

All this because Bush admitted to authorizing torture.

Johnson goes through the usual analysis of torture; it's incompatible with US and international law, it doesn't work, it's "results" are inadmissible in court because those results are usually unreliable.

The Mayor of London ends with this:

How could America complain to the Burmese generals about the house arrest of Aung San Suu Kyi, when a president authorised torture? How can we talk about human rights in Beijing, when our number one ally and friend seems to be defending this kind of behaviour? I can’t think of any other American president, in my lifetime, who would have spoken in this way. Mr Bush should have remembered the words of the great Republican president, Abraham Lincoln, who said in 1863 that “military necessity does not admit of cruelty”. Damn right.

Damn right.

UPDATE: I forgot the link to the Boris Johnson quote. It's fixed now.

Another Reason Why Torture Is A Bad Idea

Take a look at the Ghailani Verdict:

Fierce criticism erupted Thursday over the split verdict on terrorism charges against the first Guantánamo detainee to be tried in civilian court, casting new doubts on the Obama administration’s goal of trying cases against other prisoners in the civilian criminal justice system.

The defendant, Ahmed Khalfan Ghailani, was convicted Wednesday in federal court in Manhattan of conspiring in the 1998 embassy bombings in Africa, and he faces a sentence of 20 years to life in prison. But Republican critics roundly denounced the fact that a jury acquitted him on all but one of more than 280 charges — including every murder count — as a sign that such terrorism detainees should be prosecuted only before a military commission.

That portrayal of the verdict as a disaster was hotly contested by the administration and other supporters of civilian trials. They argued that the system had shown that a terrorist could be convicted and sentenced to a stiff prison term even after a judge excluded evidence tainted by coercive interrogations during the Bush administration.

See that? They euphemized "torture" to "coercive interrogations." When they do it it's torture; when we do it it's "coercive interrogations." Damned lib-rul media!

So what's the problem?

Many observers attributed any weakness in the prosecution’s case to the fact that the Judge Lewis A. Kaplan of United States District Court in Manhattan, who presided over the trial, refused to allow prosecutors to introduce testimony from an important witness, who was discovered after interrogators used coercive techniques on Mr. Ghailani.

So evidence based on torture was deemed inadmissible. That, of course enraged the law and order types on the right. Military tribunals wouldn't have this problem, they said.

Not so:

But proponents of civilian trials noted that in a footnote of his order rejecting the witness, Judge Kaplan pointed to restrictions against evidence obtained by torture in military trials and strongly suggested that a military judge would have excluded the testimony, too.

So, apart from the immorality of Bush's torture, apart from the illegality of Bush's torture, there's another reason why torture is bad. Bad, bad, bad.

From Andrew Sullivan:

The only thing to say about the remarkable acquittals on almost all counts for a tortured prisoner of war is that torture renders convictions all but impossible. By throwing aside all norms for prisoner treatment and setting up an apparatus of systemic torture, Bush and Cheney destroyed critical evidence that could have been used by the prosecution to convict. [emphases added.]

In their zeal to "git 'em!" Bush and Cheney made things much much more complicated. They could have just followed the law but they didn't. They broke it. And now the only alternative is detaining the accused terrorists indefinitely without trial. Another insult to our Constitutional system.

This is the Bush/Cheney legacy: torture followed by indefinite detention. So much for the rule of law.

More On Bush's Torture Crimes (The UN's New Rapporteur Chimes In)

From Reuters:

The new U.N. torture expert urged the United States on Tuesday to conduct a full investigation into torture under the Bush administration and prosecute offenders as well as senior officials who ordered it.

And:

"The United States has a duty to investigate every act of torture. Unfortunately, we haven't seen much in the way of accountability," said [Juan Ernesto] Mendez, himself a former torture victim, in the wide-ranging interview at the United Nations in Geneva.

"There has to be a more serious inquiry into what happened and by whose orders... It doesn't need to be seen to be partisan or vindictive, just an obligation to follow where the evidence leads," added Mendez, the U.N. special rapporteur on torture.

And what is a "UN special rapporteur"?

From the UN's website:

The United Nations Commission on Human Rights, in resolution 1985/33, decided to appoint an expert, a special rapporteur, to examine questions relevant to torture. The mandate was extemded for 3 years by Human Rights Council resolution 8/8 in June 2008. It covers all countries, irrespective of whether a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The mandate comprises three main activities:

1) transmitting urgent appeals to States with regard to individuals reported to be at risk of torture, as well as communications on past alleged cases of torture;
2) undertaking fact-finding country visits; and
3) submitting annual reports on activities, the mandate and methods of work to the Human Rights Council and the General Assembly.

So Mendez, aside expertize gained from being a victim of torture himself, is also an officially mandated expert on torture, what it is and where it's taking place.

Recently Mendez was interviewed by Australian reporter Mark Colvin. When asked if there was a question as to whether waterboarding is torture, Mendez answered:

I don't think there is any question, any serious question. I mean it's a question of severity. If you think that waterboarding is not severe mistreatment you don't really know what waterboarding is. But you know if just with the definition that it's designed to create a sensation of asphyxia, you can tell that it's severe. There's just no other way.

I mean if you then redefine upwards the severity standard to say that it's only severe if it's organ failure or death, then you know you're really very clearly distorting the sense of the words and you know words have to be interpreted in treaty language, they have to be interpreted in their plain meaning and their plain meaning couldn't be more clear in the case of waterboarding.

Then when asked if waterboarding is a war crime, he answered:

Well it can be depending on the situation in which it happens. I mean it's a war crime if it's in a battle field scenario. If, you know, the enemy soldier is arrested and instead of just allowing him to say name and serial number, as it were, you try to interrogate him under torture. Then of course it's a war crime. But in other circumstances, you know in law enforcement circumstances it's an international crime. Whether it's a war crime or crime against humanity it doesn't matter. The single act of torture is an international crime.

And then there's another problem with not prosecuting the torture. Mendez asks:

How are we going to tell a small country that it has the obligation to investigate, prosecute and punish torture when states with all the wherewithal and all the ability and all the human resources and intelligence and skill to do this, decide not to do it?

Y'know like if Iran tortures someone then how can the US claim any sort of moral high ground to criticize when we're allowing a our own torturers to go unprosecuted?

Meanwhile, here's something you won't soon see on the fair and balanced Fox "News" channel:

Protesters called for George W. Bush to be arrested for his role in the Iraq and Afghanistan wars as he opened his presidential library in Dallas.

Demonstrators staked hundreds of white crosses into the ground to represent troops killed in both wars and carried banners saying 'torture is illegal' and 'arrest Bush'.

Huh. I missed that even in the "Mainstream" American news. I wonder why.

Torture is an war crime. Bush allowed the torture. Prosecute the torture. Prosecute Bush.

More On Bush's Torture (A View From The Outside)

Now that George Bush has admitted to torture and now (it seems) that the Obama administration is just as reluctant to prosecute (or even investigate) those war crimes as ever, the responsibility just now may fall to our overseas allies.

From Rue 89:

A total of 145 other countries, including Canada, are signatories to the U.N. Convention Against Torture. And all signatories have committed to enforcing its provisions, even against offenders residing in other territories.

Therefore, with varying degrees of success, proceedings have been initiated in Spain and Belgium against foreign heads of state, notably the Chilean Pinochet. Water boarding is now considered a form of torture worldwide, and those responsible must be prosecuted.

And:

In fact, a court in Madrid last January opened proceedings against Bush advisors who wrote memos illegally authorizing the use of torture. The case is pending, but the issue was pursued precisely because no American authority took action against the officials responsible.

It's a safe bet that George W. Bush is now in the crosshairs of the Spain tribunal. If it were to condemn him, even in absentia, he would then be subject to the mutual extradition treaty in force among 24 European countries.

In other words, Bush couldn't travel to any of these countries without incurring the risk of being deported to Spain to serve out his sentence.

No one is above the law - not even presidents. That was the case when it came to lying about blowjobs, why isn't it the case when war crimes are involved?

Torture is illegal. Prosecute the torture. It's simple.

Two Views of Bush's War Crimes

View one, from Amnesty International:

Amnesty International today urged a criminal investigation into the role of former US President George W. Bush and other officials in the use of “enhanced interrogation techniques” against detainees held in secret US custody after the former president admitted authorizing their use.

And:

“Under international law, the former President’s admission to having authorized acts that amount to torture are enough to trigger the USA’s obligations to investigate his admissions and if substantiated, to prosecute him,” said Claudio Cordone, Senior Director at Amnesty International.

Amnesty gives some background:

The USA ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1994. Under UNCAT, in every case where there is evidence against a person of their having committed or attempted to commit torture, or of having committed acts which constitute complicity or participation in torture, the case must be submitted to its competent authorities for the purpose of prosecution.

Failing to proceed with a prosecution on the basis that the accused held public office of any rank, or citing justifications based in “exceptional circumstances”, whether states of war or other public emergencies, is not permitted by UNCAT.

I know we've done this before, but let's do it again.

The United Nations Convention Against Torture was signed by Ronald Reagan and ratified by the Senate in 1994. And according to Article IV paragraph 2 of the US Constitution, which says:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

UNCAT is US Law. Torture is against US Law. Bush needs to be prosecuted.

Then there's the wingnuts who love love l-o-o-o-o-o-v-e the Constitution except when it gets in their way. Here's Peter King (R-NY):

Rep. Peter King (R-N.Y.) on Wednesday defended the Bush administration’s use of waterboarding and said a Democratic colleague was “entirely wrong” to call for an investigation into the interrogation method sanctioned by the previous White House.

King, the presumptive next chairman of the House Homeland Security Committee, pushed back against demands by Rep. Jerrold Nadler (D-N.Y.) for a probe into Bush-era waterboarding and asserted that President George W. Bush’s authorization of the practice “saved many, many lives.”

“Jerry and I are friends, but he’s entirely wrong on this,” King said in an interview with POLITICO’s Arena. “There would’ve been lives lost, and Bush deserves credit for what he did.”

Doesn't matter. Torture's still illegal. What part of that don't they get?

And then King further distinguishes himself:

King suggested Bush “should get a medal” for authorizing waterboarding. King said cases like Khalid Sheikh Mohammed, the accused mastermind behind Sept. 11 who is currently awaiting trial, proved practices such as waterboarding were effective.

“There was no harm done,” King said, referring to Mohammed. “In the big picture, to hold someone’s head underwater, the chance of permanent damage is minimal and the rewards are great.”

No harm done, except to the rule of law.

And our moral standing in the world.

No one is above the law. George W Bush is a war criminal. And Peter King is defending the indefensible.

More On Bush's Waterboarding War Crime

Of course the rightwing media (and it's enablers in the mainstream) are spreading a false justification.

From Mediamatters.org:

Following the release of former President George W. Bush's book Decision Points, right-wing media are promoting Bush's claim that waterboarding "saved lives." But this claim is disputed by intelligence experts, including former British officials who have "cast doubt" on Bush's waterboarding claims.

And here's one of the most idiotic things I have ever heard the idiotic Brian Kilmeade say (again, from Mediamatters):

"George W. Bush telling his critics who's boss." Later on Fox & Friends, Kilmeade called Bush's comments, "President George W. Bush telling his critics who's boss." After playing Bush's statement that waterboarding "saved lives," Kilmeade said, "That's one of the things he's most proud of."

Then there's the intelligence experts' skepticism. There's this from The Guardian in the UK:

No 10 dismisses George Bush's claim in his memoirs that interrogation technique is legal and helped foil attacks on Heathrow and Canary Wharf

The title of the piece, by the way, is:

Waterboarding is torture, Downing Street confirms

On to the British intelligence expert:

The former chair of the Commons intelligence and security committee, Kim Howells, cast doubt on Bush's claim that it had helped save British lives. "We are not convinced," said the Labour MP.

The piece ends with this from the former shadow Home Secretary David Davis:

Davis told Today that although security information provided from abroad would have to be used regardless of how it was obtained, torture did not work and should be discouraged.

"People under torture tell you what you want to hear," he said. "You'll get the wrong information and ... apart from being immoral, apart from destroying our standing in the world, and apart from undermining the way of life we're trying to defend, it actually doesn't deliver."

There's more from Davis (who's a member of the Conservative party over there in the UK) by way of the BBC:

He said a large part of the false intelligence on WMD that led to the war in Iraq came from torture and illegal rendition.

Which is interesting when the discussion of Iraq's WMD comes up later on in the BBC piece:

Mr Bush said he still had "a sickening feeling" about the failure to find weapons of mass destruction in Iraq.

But he defended his decision to invade Iraq, saying Iraqi citizens were better off without the former Iraqi leader Saddam Hussein and the US was better off without Saddam pursuing biological or chemical weapons.

Mr Bush admits that he was shocked when no weapons of mass destruction were found in Iraq after the 2003 invasion.

But asked, in an interview with NBC, if he ever considered apologising to Americans for that failure to find WMD, he said: "Apologising would basically say the decision was a wrong decision.

"And I don't believe it was the wrong decision."

Having trouble getting through Dubya's logic here. He was shocked when no WMD were found - but he still thinks the decision (the one based on his mistake about the WMD) to send so many thousands of Americans into battle was incorrect.

Whatever he might believe, he was still wrong about the WMD and he was still wrong about the torture he ordered. And that's still a war crime.

George W. Bush is a war criminal.

George W. Bush, War Criminal

He admitted to giving the order:

In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.

In his book, titled "Decision Points," Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was "Damn right" and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

There's some more:

The 26-year-old United Nations Convention Against Torture requires that all parties to it seek to enforce its provisions, even for acts committed elsewhere. That provision, known as universal jurisdiction, has been cited in the past by prosecutors in Spain and Belgium to justify investigations of acts by foreign officials. But no such trials have occurred in foreign courts.

Here's the United Nations Convention Against Torture. I know we've done this before but sometimes you just have to point out the obvious again and again. Here's how the Convention defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Then there's this, explaining if torture is ever allowable:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

So Bush's about how it was to save lives, doesn't make it not torture.

And War Crimes? Take a look. The US Code defines "torture" as a war crime.

George W. Bush - War Criminal.

When can we see a prosecution from the Obama DOJ? An investigation by the Obama DOJ? A denunciation of the war crimes from Obama himself?