How did George W. Bush make torture legal and what did Obama undo?

  • In the George W. Bush era, how did government organizations get away with using torture? Obviously it was illegal. What legislation did they pass, and what did Obama undo? In this article, it talks about how Obama refused to prosecute those who made torture legal. I guess this implies that it's as simple as changing a law to make torture standard practice?

    ...Obama refused to prosecute those responsible for sanctioning torture...

    Often it is difficult to persecute people for something that was not strictly illegal at the point, even if later it is. I guess people just don't want to have too many disruptions. Retroactive justice has its advantages and disadvantages.

  • Brythan

    Brythan Correct answer

    5 years ago

    The Bush administration asserted that "enhanced interrogation" techniques like waterboarding were not torture and not illegal. The Obama administration asserted that they were torture and were illegal. The law itself did not change, just how the two administrations interpreted it.

    From MSNBC:

    In one of his first acts as president, Obama signed an executive order that banned the use of torture by the CIA And three months later, his administration released Justice Department memos that revealed some of the arguments that Bush administration lawyers used to approve them.

    An executive order is not a law. It's basically an instruction from the president that his employees have to follow. Note that in some cases, an executive order can cause regulations to change. Regulations are more like law. They are basically the details of how the administration is enforcing legislation.

    Upvoted. This is missing the historical perspective though. This is not a brand-new technique, and it is far more historically accurate to say that it has historically been considered torture, and the Bush Admn. was highly unusual in claiming it wasn't. I approve of the attempt at balance, but sometimes that can give a misleading impression.

    That's what I don't get, if no one technically broke the law, then how could Obama have tried to prosecute them?

    @Brythan, re *"how two administrations interepreted it"*: that's interesting, but doesn't necessarily answer the OP. *Nixon* also interpreted himself authorizing "not illegal" activity, (e.g. concealment of burglary), but it still required a Presidential Pardon to achieve impunity. Interpretation alone does not equal impunity, and the OP is asking about the means and methods of impunity, not just the rationale.

    @ESamual "That's what I don't get, if no one technically broke the law, then how could Obama have tried to prosecute them?" Who says no-one broke the law? Maybe they misinterpreted it. You would have to drag them to court to find out if and how they broke the law. Since nobody did this... If you are a US citizen you could try and sue George W. Bush for commanding illegal torture... maybe you would succeed.

    So the gist is, that we simply don't know if torture was ever illegal or not since nobody (with enough authority) challenged the interpretation of the time (that it wasn't).

    @Trilarion Negative. Torture has been illegal for a while. There was never an attempt to make torture legal. Rather, they categorized the actions they were taking as "not torture" but enhanced interrogation techniques.

    @ESamual Did Obama try to prosecute them? My memory is that he didn't, because at the time people were doing this, their guidance (all the way through the judiciary to the very top) was that it was legal. Of course if people carried on doing it after this guidance changed, that would have been different.

    I guess my confusion is what does "asserted" mean? So if the administration "asserts" something that means the law is applied differently?

    @Trilarion is miss-interpreting the law illegal? Does it even make sense to speak of the admin to misinterpret the law since they are the ones who make it?

    @Trilarion AFAIK in the US you cannot sue the government if you personally not harmed.

    @Anixx Ok, although it probably would have been easy for the Obama administration to convince of the persons which were harmed to sue the previous government. The question would then have been if the whole previous government would liable (they could have prevented it) or only the persons doing and ordering the wrong things (if they indeed did things wrong) or only the persons who gave the orders or maybe even they could have hidden behind a: "sorry we interpreted torture differently". It's a wide field indeed.

    @ESamual "is miss-interpreting the law illegal? Does it even make sense to speak of the admin to misinterpret the law since they are the ones who make it?" Sure it is. What else would we need (supreme) courts then for? Whenever you feel mistreated you go to court and judges decide what is lawful and what is not, not the government. The government can probably change a law but never retroactively. The law is written by government but the final interpretations is by judges. Everything else would open the door to acts of caprice.

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