Obama’s First 100 Days and the Constitution: An assessment

Here’s a pretty balanced assessment by the Center for Constitutional Rights on Obama’s record to date on restoring the Constitution, civil liberties, torture, the imperial presidency & related issues:
Paul Krugman, “Reclaiming America’s Soul”:
“Just following orders” (cartoon)
Law professor Marjorie Cohn explains why Obama has a constitutional dury to see that torturers are brought to justice:
April 24, 2009

When I testified last year before the House Judiciary
Committee’s Subcommittee on the Constitution, Civil
Rights, and Civil Liberties about Bush interrogation
policies, Congressman Trent Franks (R-Ariz) stated that
former CIA Director Michael Hayden had confirmed that
the Bush administration only waterboarded Khalid Sheikh
Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit
for one minute each.  I told Franks that I didn’t
believe that. Sure enough, one of the newly released
torture memos reveals that Mohammed was waterboarded
183 times and Zubaydah was waterboarded 83 times. One
of Stephen Bradbury’s 2005 memos asserted that
“enhanced techniques” on Zubaydah yielded the
identification of Mohammed and an alleged radioactive
bomb plot by Jose Padilla. But FBI supervisory special
agent Ali Soufan, who interrogated Zubaydah from March
to June 2002, wrote in the New York Times that Zubaydah
produced that information under traditional
interrogation methods, before the harsh techniques were
ever used.

Why, then, the relentless waterboarding of these two
men? It turns out that high Bush officials put heavy
pressure on Pentagon interrogators to get Mohammed and
Zubaydah to reveal a link between Saddam Hussein and
the 9/11 hijackers, in order to justify Bush’s illegal
and unnecessary invasion of Iraq in 2003, according to
the newly released report of the Senate Armed Services
Committee. That link was never established.

President Obama released the four memos in response to
a Freedom of Information Act request by the ACLU. They
describe unimaginably brutal techniques and provide
“legal” justification for clearly illegal acts of
torture and cruel, inhuman or degrading treatment. In
the face of monumental pressure from the CIA to keep
them secret, Obama demonstrated great courage in
deciding to make the grotesque memos public. At the
same time, however, in an attempt to pacify the
intelligence establishment, Obama said, “it is our
intention to assure those who carried out their duties
relying in good faith upon legal advice from the
Department of Justice that they will not be subject to

In startlingly clinical and dispassionate terms, the
authors of the newly-released torture memos describe
and then rationalize why the devastating techniques the
CIA sought to employ on human beings do not violate the
Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging
heads into walls 30 times in a row, prolonged nudity,
repeated slapping, dietary manipulation, and dousing
with cold water as low as 41 degrees. They allow
shackling in a standing position for 180 hours, sleep
deprivation for 11 days, confinement of people in small
dark boxes with insects for hours, and waterboarding to
create the perception they are drowning. Moreover, the
memos permit many of these techniques to be used in
combination for a 30-day period. They find that none of
these techniques constitute torture or cruel, inhuman
or degrading treatment.

Waterboarding, admittedly the most serious of the
methods, is designed, according to Jay Bybee, to induce
the perception of “suffocation and incipient panic,
i.e. the perception of drowning.” But although Bybee
finds that “the use of the waterboard constitutes a
threat of imminent death,” he accepts the CIA’s claim
that it does “not anticipate that any prolonged mental
harm would result from the use of the waterboard.” One
of Bradbury’s memos requires that a physician be on
duty during waterboarding to perform a tracheotomy in
case the victim doesn’t recover after being returned to
an upright position.

As psychologist Jeffrey Kaye points out, the CIA and
the Justice Department “ignored a wealth of other
published information” that indicates dissociative
symptoms, changes greater than those in patients
undergoing heart surgery, and drops in testosterone to
castration levels after acute stress associated with
techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to
engage in conduct, specifically intended to inflict
severe physical or mental pain or suffering. “Severe
mental pain or suffering” means the prolonged mental
harm caused by or resulting from either the intentional
infliction or threatened infliction of severe physical
pain or suffering, or from the threat of imminent

Bybee asserts that “if a defendant acts with the good
faith belief that his actions will not cause such
suffering, he has not acted with specific intent.” He
makes the novel claim that the presence of personnel
with medical training who can stop the interrogation if
medically necessary “indicates that it is not your
intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee
concludes that waterboarding does not constitute
torture under the Torture Statute. However, he writes,
“we cannot predict with confidence whether a court
would agree with this conclusion.”

Bybee’s memo explains why the 10 techniques could be
used on Abu Zubaydah, who was considered to be a top Al
Qaeda operative. “Zubaydah does not have any pre-
existing mental conditions or problems that would make
him likely to suffer prolonged mental harm from [the
CIA’s] proposed interrogation methods,” the CIA told
Bybee. But Zubaydah was a low-ranking Al Qaeda
operative, according to leading FBI counter-terrorism
expert Dan Coleman, who advised a top FBI official,
“This guy is insane, certifiable, split personality.”
This was reported by Ron Suskind in his book, The One
Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box
with an insect was granted by Bybee, who told the CIA
it could place a harmless insect in the box and tell
Zubaydah that it will sting him but it won’t kill him.
Even though the CIA knew that Zubaydah had an
irrational fear of insects, Bybee found there would be
no threat of severe physical pain or suffering if it
followed this procedure.

Obama’s intent to immunize those who violated our laws
banning torture and cruel treatment violates the
President’s constitutional duty to “take Care that the
Laws be faithfully executed.”

U.S. law prohibits torture and cruel, inhuman or
degrading treatment, and requires that those who
subject people to such treatment be prosecuted. The
Convention against Torture compels us to refer all
torture cases for prosecution or extradite the suspect
to a country that will undertake a criminal

Obama has made a political calculation to seek amnesty
for the CIA torturers. However, good faith reliance on
superior orders was rejected as a defense at Nuremberg
and in Lt. Calley’s Vietnam-era trial for the My Lai
Massacre. The Torture Convention provides
unequivocally, “An order from a superior officer or a
public authority may not be invoked as a justification
for torture.”

There is evidence that the CIA was using the illegal
techniques as early as April 2002, three to four months
before the August memo was written. That would
eliminate “good faith” reliance on Justice Department
advice as a “defense” to prosecution.

The Senate Intelligence Committee revealed that
Condoleezza Rice approved waterboarding on July 17,
2002 “subject to a determination of legality by the
OLC.” She got it two weeks later from Bybee and John
Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales
and George Tenet reassured the CIA in spring 2003 that
the abusive methods were legal.

Obama told AP’s Jennifer Loven in the Oval Office:
“With respect to those who formulated those legal
decisions, I would say that is going to be more of a
decision for the Attorney General within the parameters
of various laws, and I don’t want to prejudge that.” If
Holder continues to carry out Obama’s political agenda
by resisting investigations and prosecution, Congress
can, and should, authorize the appointment of a special
independent prosecutor to do what the law requires.

The President must fulfill his constitutional duty to
ensure that the laws are faithfully executed. Obama
said that “nothing will be gained by spending our time
and energy laying blame for the past.” He is wrong.
There is more to gain from upholding the rule of law.
It will make future leaders think twice before they
authorize the cruel, illegal treatment of other human

[Marjorie Cohn is a professor at Thomas Jefferson
School of Law and president of the National Lawyers
Guild. She is author of Cowboy Republic: Six Ways the
Bush Gang Has Defied the Law and co-author of the new
book, Rules of Disengagement: The Politics and Honor of
Military Dissent. Her articles are archived at
www.marjoriecohn.com ]


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