Three American groups that oppose torture — the National Religious Campaign Against Torture, Amnesty International USA, and the Center For Constitutional Rights — delivered a petition with 60,000 signatures to the White House this week demanding an apology.

In 2007, the Canadian government admitted Arar had been mistakenly pinpointed as an Al Qaeda ally, apologized, and compensated him.

President Obama ended the “extraordinary rendition” program in 2009 and Politifact noted that the Obama administration “has announced new procedural safeguards concerning individuals who are sent to foreign countries” but some rights groups claim those safeguards aren’t adequate.

Citing the requirement for “remedy and redress” in the International Covenant on Civil and Political Rights, the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — which prohibits knowingly transferring detainees to countries, like Bashar al-Assad’s Syria, that engage in torture — the letter campaign (PDF) asked signees to themselves apologize and then demand the U.S. do the same. An Amnesty press release said:

“It was so painful,” Maher Arar said of the beatings he endured, “that I forgot every enjoyable moment in my life.”

Released without charge and allowed to return home to Canada, Maher Arar received an apology and compensation from the Canadian government for its role in his treatment. But the U.S. government has failed to apologize or offer Maher Arar any form of remedy – despite its obligation to do so under the UN Convention Against Torture and other human rights treaties.

The letter campaign emphasized that additional steps need to be taken for accountability in the Arar case, including more explicit prohibitions on transfer, not relying only on diplomatic assurances about the treatment of detainees before transfers, ending discrimination in “no fly lists” and investigating and prosecuting those who broke the law.

Amnesty also released an infographic — using a mock-up of Arar’s 3-foot-wide, 7-foot-high and 6-foot-deep Syrian cell — highlighting the numbers around his detention: 12 days of incommunicado detention in the U.S., 351 in Syria while enduring torture, and 0 charges filed against Arar. However, there is no figure for the “number of people like Maher Arar subjected to the U.S. government’s ‘extraordinary rendition’ program.” That number? The Amnesty infographic boldly states, “UNKNOWN.”

Thirty-eight years have passed, but, in certain ways, little has changed. Shonda Rhimes, who created “Grey’s Anatomy” and “Private Practice,” is still the sole prominent black female showrunner in television. (The most powerful black male showrunner is Tyler Perry, on TBS.) Although the heroine of “Scandal,” Olivia Pope, would never go in for Christie Love’s salty back talk, the two do share some qualities: they are incorruptible superprofessionals, worshipped and desired by everyone around them. Pope, once the President’s most trusted aide and, for a while, his secret mistress, is now the biggest fixer in Washington. (Her career is based on that of a real person: Judy Smith, a former Assistant U.S. Attorney and deputy press secretary in George H. W. Bush’s White House.) In other political narratives, the fixer might be a cynical alcoholic, or a gleeful player like Gloria Allred. Not Pope. She’s the BlackBerry-wielding flack as avenging angel. Her employees, each of whom she’s rescued from rock bottom, describe themselves as “gladiators in suits”; they say that their boss “wears the white hat.” Despite, or perhaps because of, these dollops of praise, Pope comes off as a bit of a buzzkill, all glares and Sorkinesque lectures, eyes welling with righteousness…Olivia Pope’s greatest character defect is her sexual history with the President, but that just suggests she’s a woman worth risking the White House for.

An even better example of this, I think, was the incident a couple of episodes ago when Olivia asks Huck (Guillermo Díaz), a former CIA operative with what seems like a serious case of PTSD, to torture one of his former employees. It’s a totally horrific thing for her to ask, and the scene that follows is shocking, Huck relapsing like, as he describes himself, an addict, the whir of a drill, a man screaming, bleeding onto sheet plastic. It’s a doubly awful thing she’s done here, not just ordering someone tortured, but asking Huck to do something she knows will damage his already flimsy soul. And there’s no indication that she needed to do it at all to get the information she needs (the show reinforces the misconception that torture produces accurate intelligence)—a reporter for a Washington paper even beats Olivia to the killer’s identity simply by using the tools of his trade. The show just seemed to expect that we’ll trust that Olivia is On the Side of Right rather than wondering how far this woman’s self-righteousness will lead her, how willing she is to crush people to fulfill her aims.

A story about a Washington woman who is an amoral fixer would be pretty interesting, and Scandal has the ingredients to be an interesting anti-heroine show. Scandal’s at its best when it’s a story about people who are channeling their worst tendencies, whether it’s womanizing or a talent for snooping, towards good projects, when Olivia’s firm functions as a form of rehab. And with the other characters in the show, Shonda Rhimes seems relatively comfortable portraying them as broken or fallen in a way that makes them more interesting. Olivia, by contrast, is less a gladiator in a suit than a ruler-wielding Mother Superior whose authority is unimpeachable. She’s not to blame for ordering torture because her cause is just. She’s not doing anything wrong by schtupping the president because he started it, and besides, his wife is the worst.

What makes anti-heroes fascinating when they work is that they make decisions are reprehensible, but that we can understand and even sympathize with given the framework and worldview those characters are operating within. The fact that unlike Walter White or Jimmy McNulty, Olivia’s always in the right actually means that she her and the show she’s operating within are more potentially amoral: her permanent correctness means a moral reckoning isn’t necessary. I can’t help but thinking of Patty Hewes, the lawyer on Damages who makes Olivia’s so-called Gladiator in a Suit look like a fluffy baby duck. She is a wretched mother, a deeply unpredictable mentor, a person who does overwhelming harm to the lives of people she encounters. But unlike Olivia, Patty appears to know who and what she is. It would be nice if Scandal developed the self-confidence to give Olivia the same kind of self-awareness.

The Avengers is hardly the first post-9/11 movie to have superheroes rampage through New York, causing property damage and loss of life along the way. But I was struck, in the moment when Thor, doing battle with his brother Loki atop Stark Tower, forces him to look out at the city Loki’s forces were laying waste to, trying to force him to recognize the stupid, destructive futility of his attack. The crash of alien invaders into skyscrapers was one of the most striking visual allusions to the September 11 attacks I’ve seen in an action movie, flowers of fire blooming from pillars of steel in an eruption of violence hugely more widespread than the terror accomplished by 19 angry men in three hijacked planes.

The buildings didn’t fall. We didn’t have to go to war, because we could shut the border between our world and the one from which our enemies came. We didn’t even have to conduct a mop-up operation or interrogate detainees because when that portal closed, the invaders collapsed like toys (interestingly, while in Avengers captivity, Loki assumes he’ll be tortured and Nick Fury certainly seems prepared to do so, but it’s Black Widow who talks information out of the mad god without touching him). This isn’t just a fantasy of an easy dynamic, of revenge on the bad guys as Adam Serwer has written at Mother Jones. It’s a dream of resilience and clean war, where we can suffer greater losses and survive; where we can solve our problem without putting as many men and women at risk of death, deformity, or traumatic brain injury; where we can end the war in a day; where we can avoid doing grievous harm to ourselves and our values in the process.

The Dictator doesn’t perform alchemy on our post-9/11 fears, it mocks them. Sacha Baron Cohen’s upcoming comedy about a Middle Eastern dictator adrift in New York City takes on issues ranging from anti-Arab sentiment. But it also features an extended joke, which appears at the end of this red band trailer, that derives its humor from the idea that a pair of tourists in a helicopter are stupid to think that they might be the victims of a 9/11 style attack again:

It’s a poor choice of target. Publications like The Onion and Modern Humorist dived in immediately after 9/11 to start making fun of the hijackers themselves, and the Taliban and al Qaeda more broadly, turning them into small, delusional, murderous, isolated men rather than giving them the deference of treating them like an existential threat to the United States. It’s that kind of thinking that leads to raids to take out Osama bin Laden directly, rather than grinding wars that have accomplished little more than giving the sense that the country responding with force equal to the trauma we felt on September 11 itself. If you want to make fun of that trauma, it makes more sense to mock the things that it’s made us do to ourselves, be it the threat level system, invasive TSA searches, or watch lists. For all the movie’s other fantasies, Bruce Banner’s indignant request to know why “Captain America’s on a threat list?” in The Avengers says a lot more about the idiocies of post-9/11 vigilance than mocking the terror of two middle-aged tourists who think they’re about to die.

I tend to think movies like these are always somewhat dicey, since they’re built on the proposition that things that in the real world would be extremely dangerous or morally compromised—like getting overly zealous about guarding your neighborhood to the point that you start treating people in threats in ways that can escalate, or, say, torturing people—end up getting the results you want, whether it’s beating the bad guys or eliciting accurate information, both outcomes that in those cases would be rather unlikely. I thought it was problematic, for example, that in last week’s episode of Scandal, Olivia asks one of her employees to torture a suspect, aggravating what appears to be a severe case of PTSD, and then was rewarded for asking him to do this terrible thing by getting the information that she wanted. One bad message, that torture works, was wrapped inside a better one, that asking people on our side to do terrible things harms their humanity.

The Watch could end up validating macho nonsense that does real harm off-screen. Or it could end up arguing that most of the time, the people we assess as threats are no danger to us, and in fact are common allies in larger projects, the people we need to help make our communities better rather than the people we need to fear.

Today, the 9th Circuit Court, of which Jay Bybee is a member, ruled that Yoo is protected from the lawsuit, claiming that the law defining torture and the treatment of enemy combatants was unsettled when Yoo wrote the memos:

We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

Running down the list of torture memos Bybee signed, Marcy Wheeler writes of the 9th Circuit’s decision, “Oh good. We don’t have to question the competence of anyone on the 9th Circuit now, given that the 9th Circuit has judged that it was not beyond debate that Inquisition torture methods were torture when now-9th Circuit judges were signing off on claims they weren’t.”

Rodriguez, who had tapes of the interrogations destroyed, was unapologetic. He told 60 Minutes:

We made some al Qaeda terrorists with American blood on their hands uncomfortable for a few days. But we did the right thing for the right reason. And the right reason was to protect the homeland and to protect American lives. So yes, I had no qualms. [...]

If there was going to be another attack against the U.S., we would have blood on our hands because we would not have been able to extract that information from [a terrorist suspect]. So we started to talk about an alternative set of interrogation procedures.

Watch a clip:

Rodriguez compared so-called stress positions — such as making detainees hold their hands above their heads — and sleep-deprivation to going to the gym and having jetlag, respectively. He cited the interrogations of alleged Al Qaeda terrorists Abu Zubaydeh and Khalid Sheikh Mohammad. “This program was about instilling a sense of hopelessness and despair on the terrorist, on the detainee, so that he would conclude on his own that he was better off cooperating with us,” he said.

But others — including military and law enforcement officials and politicians — have said that interrogations are most effective when interrogators stick to the script laid out on interrogations in the Army Field Manual, which is informed by decades of military experience. Anti-torture advocates note that the interrogation techniques employed during the Bush administration go against American values, endanger U.S. troops who might facing reciprocal treatment, and often lead to false information because subjects of harsh interrogations will say anything to get the sessions to end.

When confronted by CBS’s Leslie Stahl with the FBI’s contention that Abu Zubaydeh gave up his most useful information before harsh interrogations, Rodriguez said, “It’s not true.” Asked about a CIA inspector general’s report stating that the guidelines — or lack thereof — led to “unauthorized, improvised, inhumane and undocumented” techniques, Rodriguez said, “Well our own inspector general in many cases did very sloppy work. That report is flawed in many different ways.” Told by Stahl that she’d heard information gained from Abu Zubayded through waterboarding led the U.S. on wild goose chases, Rodriguez fired back, “Bullshit. He gave us a road map that allowed us to capture a bunch of Al Qaeda senior leaders.” Still-secret documentation of the claims makes sorting out the disputes difficult.

But former FBI interrogator Ali Soufan said in an interview with CNN that “the examples that they are mentioning as the successes of EITs absolutely were not produced by EITs.” He said the information gleaned from Abu Zubaydeh that pointed to Khalid Sheik Muhammad’s central role in the 9/11 attacks came before waterboarding on Abu Zubaydeh began.

When the debate over harsh interrogations reignited after Osama Bin Laden’s killing, numerous former interrogators, officials who oversaw interrogations, military officials, and national security experts stated that the techniques were not as effective as traditional interrogation techniques and, furthermore, hurt U.S. interests by putting a bad face forward.

Even sometime Bush administration ally Sen. John McCain (R-AZ) wrote, “Ultimately, this is more than a utilitarian debate. This is a moral debate. It is about who we are.”

But for some reviewers, the most eye-catching revelation has focused on Rodriguez’s role in destroying the interrogation tapes that included waterboarding. Upon the closing of one of the CIA’s “black sites” — secret detention centers used to keep so-called “high-level detainees” off the grid and outside even U.S. law — Rodriguez was asked about destroying the tapes, and leaned toward the affirmative. But a memo from his superiors told him to hold off. After his superiors’ wavering between allowing the tapes’ destruction and then backing off, it was finally the Abu Ghraib prison scandal that pushed Rodriguez to order the videos destroyed. According to a review in the Washington Post, Rodriguez wrote:

We knew that if the photos of CIA officers conducting authorized EIT [enhanced interrogation techniques] ever got out, the difference between a legal, authorized, necessary, and safe program and the mindless actions of some MPs [military police] would be buried by the impact of the images.

The propaganda damage to the image of America would be immense. But the main concern then, and always, was for the safety of my officers.

…I was not depriving anyone of information about what was done or what was said. I was just getting rid of some ugly visuals that could put the lives of my people at risk.

Dana Priest, the Post reviewer who had her own run-in with Rodriguez when in the process of exposing the “black sites,” commented on the ex-spy’s motivations for destroying the videos:

In this case, a loyal civil servant — and the decision-makers above him who blessed these programs — were not thinking about the larger, longer-lasting damage to the core values of the United States that disclosure of these secrets might cause. They were thinking about the near term. About efficiency. About the safety of friends and colleagues. In their minds, they were thinking, too, about the safety of the country.

Rodriguez also contends in his book that it was the Bush administration’s torture program that led to the killing of Osama bin Laden — a common theme among proponents of torture:

I am certain, beyond any doubt, that these techniques… shielded the people of the United States from harm and led to the capture and killing of Usama bin Ladin.

That view is at odds with former interrogators and Senate Intelligence Committee Chair Diane Feinstein. Amid an extensive investigation of the techniques, Feinsten was asked if the harsh methods played a role in finding and killing Osama bin Laden. “To date, the answer to your question is no,” she replied.

More importantly, torture scenes violate the audience’s trust that the characters onscreen, no matter how outlandish their surroundings, will behave like human beings. On TV, torture almost always works. The victim usually knows the information, and gives it up immediately. In rarer cases, they know nothing but are able to stop to torture by stating this fact. Either way, they respond positively to torture, and somehow the tormentor magically knows when their victim is speaking the truth.

I agree that it’s a problem that torture is shown as being effective in popular culture. But I think that should actually be a second-level objection to torture: the point that’s important to win, and the line it’s important to draw, is that torture is wrong. What actually scares me about torture and violence against prisoners and interrogators in pop culture is that there are settings in which it’s presented as at least somewhat justified. Almost all cop shows involve an officer of the law snapping and doing violence to a suspect at some point. But those actions are generally presented as failures of control, as was the case with Elliot Stabler’s beatings of suspects on Law & Order: Special Victims Unit, or of desperation, as was the case with the beatings of Bubbles on The Wire. When that’s not the case, torture can be an opportunity for a victim to prove their fortitude—specifically, their manhood. In the Casino Royale remake, Le Chiffre’s torture of bond provides an opportunity for him to prove his imperviousness to pain, and to make a joke that emasculates Le Chiffre.

What was interesting to me about the torture in this week’s episode of Game of Thrones, which Amanda focuses on, is the extent to which those scenes were about neither of those things. Joffrey and Harrenhal’s interrogators are torturing people not out of fits of temper, and not because they think there’s information for them to get out of the people they’re targeting. Joffrey doesn’t have questions that he wants to ask Ros and Daisy. The Harrenhal interrogators ask the same set of questions to every person they talk to, no matter where that person comes from or their likelihood of knowing any relevant information. These people are torturing their victims because they enjoy doing so. These scenes are all about giving us information about the torturers, to draw a line between the characters who behave like human beings and those who exist and act beyond the laws that govern the rest of us.

It was probably inevitable that whatever followed “What Is Dead May Never Die,” my favorite episode of Game of Thrones thus far, would be a bit of an emotional comedown. There’s a lot that’s interesting about “Garden of Bones,” a dark, violent episode of television that, I think it’s worth noting, is the first one this season written by a woman. But what struck me most were two sometimes-intertwined themes: the way information travels (and doesn’t) in Westeros, and the role of torture in the escalating war between the five kings.

In its adaptation, Game of Thrones has generally dropped the scenes at the beginnings and the ends of the novel when we see events briefly through the eyes of non-point of view characters. But this episode begins with one, a chatty conversation between two guardsmen about who’s the best warrior in Westeros that gradually turns into a gossipy session about one of the biggest acknowledged secrets in the realm: the affair between Loras Tyrell and Renly Baratheon. “How good can he be?” one of them jokes of Loras’s swordsmanship. “He been stabbing Renly Baratheon for years and he’s not dead.” Margaery Tyrell warned her husband last week to “save your lies for court. You’ll need a lot of them.” But apparently, word’s already out. After that guard meets an unfortunate fate at Grey Wind’s jaws, the young queen gets an interrogation at a higher level from Petyr Bealish, an envoy to Renly’s court who’s also performing the more personal errand of delivering Ned Stark’s bones to his old love, Catelyn Tully. “The marriage of a wealthy girl always breeds interest, if nothing else,” Littlefinger tells her. He may not have all the information he wants, but he can keep Margaery off-kilter by refusing to let her know precisely how much he’s aware of.

Other people are less subtle about getting information. Roose Bolton, one of Robb Stark’s bannerman, is ready to start a systematic campaign of torture in the aftermath of the battle to get as much information out of the captives as he can. “The officers will be uesful. Some of them may be privy to Tywin Lannister’s plans,” he explains to Robb. “In my family we say a naked man has few secrets. A flayed man none.” When Robb objects that “My father outlawed flaying in the north,” Roose tells him, with what we’ll come to see as characteristic coldness, “We’re not in the north…the high road’s very pretty, but you’ll have a hard time marching your armies down it.”

If his hand is stayed, that of the occupiers of Harrenhal are not. “Is there gold or silver in the village? Where is the Brotherhood?” a man asks calmly, snacking on an apple while rats chew into the entrails of the men and women he’s interrogating. Part of what’s interesting about the scene is that we don’t know who the Brotherhood is either. But the real point of is that that these men don’t really care about getting information, they don’t care if Gendry has knowledge they could use for other purposes than to answer those questions. They just want to put on a sick show.

And even more directly than the men of Harrenhal, young King Joffrey uses torture to convey information. This is a hallmark of this horrible young man, whether he’s showing Sansa her father’s head as a message about her own powerlessness, or aiming a crossbow at her in the throne room and having her stripped bare and beaten in the throne room as an expression of what appears to be the whole of his ruling philosophy, “The king can do as he likes!” And in his orders to Ros, he intends to send a very specific message to his uncle Tyrion: that he’s willing to order unspeakable violence, and that he sees his uncle’s affections for women as a profound weakness.

Joffrey may not know that Tyrion behaved kindly to the young woman he’s now ordering beaten and horribly raped when Tyrion caught her with Grand Maester Pycelle. But what he’s doing to her is bad enough—I’ve seen this episode four times, and could only watch that scene once. If defining what I find unbearable on screen is a matter of knowing it when I see it, this was it. What’s interesting about the scene is that, unlike many other scenes of sex and sexual violence in the series, it cuts away before Ros actually penetrates the unfortunate young woman we saw her mentoring just a few episodes ago. The horror is a product of our imaginations—blunt or pronged end, the length of the attack, the final result (which I’d imagine we might see next episode)—the extent to which we can imagine Joffrey’s monstrosities. It’s not something I want to see, but I found it unspeakably powerful, a perfect example of a scene that can simultaneously be beyond people’s comfort, and an extremely powerful, non-prurient depiction of sexual violence.

Philip Zelikow

Zelikow — who has previously spoken out publicly against President Bush’s torture program — will publish a “damning article” in the upcoming issue of the Houston Law Journal, Salon reports (emphasis added):

Based on published histories and his firsthand observations, and adapted from a lecture delivered in November, the article calls the administration’s rationale for its use of torture — which he nonetheless insists only on calling “extreme interrogation” and “coercive methods” — “radical,” “an amazing contention,” “untenable and extreme,” “unsustainable,” “an unprecedented program of coolly calculated dehumanizing abuse and physical torment,” and, finally, simply a “mistake.” He concludes: “This was a collective failure of American public leadership, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion without any precedent in U.S. history.” In fact, “The only defense against criminal prosecution would be that officials acted in good faith reliance on the advice of their government lawyers.”

While Zelikow calls on the White House to be more forthcoming and transparent about its own counter-terrorism methods, he praises President Obama for abandoning Bush’s torture polices Noting the Obama administration’s success in combatting terrorism and al-Qaeda in general, Zelikow concludes that “[t]here is no evident correlations between intelligence success and the available of extreme interrogation methods.”

Philip Zelikow

Zelikow summarized his views contained in the 2006 memo in an article on Foreign Policy’s website in April, 2009 and again in congressional testimony one month later. “At the time, in 2005 [and in 2006],” Zelikow wrote in 2009, “I circulated an opposing view of the legal reasoning” behind DOJ’s authorization of torture. He added: “I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC’s [Office of Legal Counsel's] views unsustainable.”

Indeed, in the newly declassified 2006 memo, Zelikow writes that while the State Department agreed with DOJ’s determination in 2005 that Article 16 of the Convention Against Torture (which prohibits “cruel, inhuman, or degrading treatment or punishment which do not amount to torture”) does not apply to CIA interrogations world wide,” he countered that “the situation has now changed.” What had changed was the fact that Congress passed a law applying Article 16 to conduct by U.S. officials anywhere in the world.

Zelikow concluded that practices the OLC authorized “should be considered ‘cruel, inhuman, or degrading treatment or punishment’ within the meaning of Artical 16″ while going on to explain what he views are techniques to be “least likely to be sustained” (waterboarding, walling, dousing, stress positions, and cramped confinement) and those that are “most likely to be sustained” (“basic detention conditions” and slaps).

Zelikow’s 2006 memo doesn’t deviate much from his 2005 memo on the subject that was made public shortly before his congressional hearing in May, 2009. In the 2005 memo, Zelikow and other top officials advised President Bush that the United States treat terror suspects as if they were “civilian detainees under the law of war.” The memo continued (emphasis added):

We are not saying that these detainees are necessarily entitled to this status. To be clear: We are giving them a temporary status they do not deserve. But we are not doing this for them. We are doing it for us.

Zelikow wasn’t the only Bush administration official that opposed the torture program. Bush’s top adviser Karen Hughes said in May, 2009 that she was also concerned about the program. “I was very vocal in the internal debate,” she said. “I worried about how that would make us look in the eyes of the world.”

Read More on the Bush administration’s “torture memos” here and here.

Holder’s strongest point is his statement that there are ample precedents for military strikes that “target specific senior operational leaders” of hostile forces. He cites Admiral Isoroku Yamamoto, the Japanese commander U.S. forces killed in a targeted strike during World War II, and Osama bin Laden as two examples. Ultimately, however, Holder has to confront a more challenging legal question, what if bin Laden had been born in California, and thus was an United States citizen?

In Holder’s analysis, this question turns upon the meaning of the notoriously ambiguous Due Process Clause of the Fifth Amendment, which ensures that no person is deprived of “life, liberty, or property, without due process of law.” The Constitution’s text, however, offers little guidance on just what kind of process is “due” in a particular case. Must a court approve a targeted strike? Or Congress? Should a board of generals be convened? And just what would a review board or judge have to determine before authorizing a strike to move forward?

Holder proposes several questions that could guide this determination. The government would conduct a review to determine that the “individual poses an imminent threat of violent attack against the United States.” It would determine that “capture is not feasible” and that “the operation would be conducted in a manner consistent with applicable law of war principles.” Holder places the responsibility for determining whether or not these limits have been adequately addressed at the feet of the Executive Branch — and ultimately, the President himself.

As a constitutional matter, this is probably correct. Courts have historically stayed far away from tactical military decisions, and for good reason — judges are neither expert in military affairs nor equipped to review an order to execute a strike before the window of opportunity for an attack passes. Moreover, there’s nothing in the Constitution suggesting that, once Congress has given the president a broad grant to use military force against a particular enemy, that the president must go back to Congress to get new authorization to take actions that fit within the scope of that grant.

At the same time, however, any Post-Bush evaluation of the president’s wartime powers must take account of the problem of John Yoo. If President Obama has the power to authorize targeted strikes without first seeking outside approval, than so too would a less responsible president. Similarly, Yoo himself defended many of the Bush Administration’s most egregious human rights violations on the theory that the power to kill an enemy combatant must also include the power to do what you wish with them. In Yoo’s words, “death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them.” So if the president can kill citizen combatants, why can’t he torture them?

As it turns out, there is a simple answer to this question, and you can find it right in the United States Code:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

One of the most well established principles in American law — stretching at least as far back as the Supreme Court’s 1804 decision in Little v. Barreme — is that Congress has the power to forbid the president from waging war in certain ways. John Yoo was wrong in no small part because Congress said he was wrong — the president cannot ignore the law, and thus cannot authorize torture.

Ultimately, this may be the only answer for Americans who do not want their president to have the power to target other Americans. Congress may forbid the practice, or require additional review before such attacks may occur. Until they do, however, Holder’s analysis is likely a correct statement of the law.

The case involves whether Royal Dutch Shell can be held accountable in American courts for allegedly working with the Nigerian government to torture, execute and detain members of an ethnic group under a law holding the most atrocious human rights violators accountable to international norms. To be clear, there are some legitimate reasons why the Supreme Court should be wary of this case — Shell is a foreign corporation, and its alleged actions occurred on foreign soil, so it is not entirely certain that American courts can reach Shell’s actions. There are worrying signs, however, that the Court’s conservatives are prepared to simply declare all corporations, both foreign and domestic, immune from international legal norms. Most notably, the Court’s supposed swing vote, Justice Anthony Kennedy, asked several questions suggesting that he does not believe corporations can be held accountable to this law:

• “[C]ounsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “‘International law does not recognize corporate responsibility for the alleged offenses here.’”
• “[I]n the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.”
• Suppose an American corporation commits human trafficking with U.S. citizens in the United States. Under your view, the U.S. corporation could be sued in any country in the world, and it would — and that would have no international consequences. We don’t look to the international consequences at all. That’s — that’s the view of the Government of the United States, as I understand.

If Justice Kennedy is willing to go this far, there’s a good chance that his four even more conservative colleagues are willing to come along with him. Worse, his questions yesterday suggest that the Court is prepared to apply a baffling double standard to wealthy and powerful corporations. Kennedy, of course, was the author of Citizens United, which declared that corporations have the exact same rights as actual human beings for purposes of spending money to influence elections. Yet, when a corporation engages in mass atrocities, they are suddenly entitled to legal immunities far beyond those available to people.

In other words, corporations are people, my friend — except when they torture.

It’s the second time in a month that CNN commentators have come under fire for controversial comments: Dana Loesch recently cheered reports of members of the United States Marine Corps urinating on the bodies of dead Afghans and suggested that had she been present, she would have joined in. But while Martin apologized and will experience an indefinite suspension, CNN and Loesch refused to apologize for her remarks, and she’s remained on the air.

The clear difference between the two cases? A sense that CNN’s audience was offended. GLAAD, which keeps a careful eye on defamation against gays and lesbians in the media, moved quickly to call for Martin’s dismissal and to track the network’s response to the incident. CNN got the message that its own constituents were upset, and that it would suffer consequences — or at least a lot of annoyance — if it failed to act.

Loesch’s comments on the other hand, offended human rights advocates and decent people everywhere. But that’s not the same as running afoul of an organization with a well-established plan to respond to these kinds of events and a well-worn path to media outlets who would cover and amplify their response. While Loesch’s comments were reprehensible, there was also no organized group who was likely or able to hold CNN accountable for her words, and for continuing to let her appear on-air without penalty.

Taken together, the way CNN handled Martin’s and Loesch’s comments makes it look like CNN has no consistent internal values, and no internal standard for how to respond when it commenters express sentiments that are an anathema to those values. I’m glad to know, per CNN’s statement, that “Language that demeans is inconsistent with the values and culture of our organization, and is not tolerated.” But why should it take several days of consideration for CNN to arrive at that conclusion? If the network’s truly committed to the proposition that violence against gay people is no joking matter, that’s something it should know in advance, and CNN should have a personnel policy in place to determine what the appropriate penalty is when someone violates their standards. Similarly, whether Loesch’s comments violate CNN’s internal values shouldn’t be something that’s determined by the level of outrage outside the network’s headquarters.