Archbishop of Canterbury William Laud (1573-1645) was a staunch political supporter of King Charles I and of "high church" practices. Neither of these set well with Parliament, which was controlled by Puritans such as Oliver Cromwell. So Parliament passed a law declaring Laud guilty of treason, and had him beheaded.
The law was called a bill of attainder. Bills of attainder bypassed the courts in declaring someone guilty of a crime and criminalized ex post facto actions that were not against the law when they were committed.
After the restoration of King Charles II, a new Parliament in 1660 passed bills of attainder declaring Mr. Cromwell and John Bradshaw (the judge at the trial of King Charles I) guilty of treason. Though both had died years before, Parliament ordered that their bodies be dug up and beheaded.
For obvious reasons, the American colonists were not fond of this aspect of the British legal system. Article 1, section 9, clause 3 of the Constitution declares: "No bill of attainder or ex post facto law shall be passed."
Perhaps neither President Barack Obama nor his attorney general, Eric Holder, are familiar with the letter and spirit of this article, given their apparent willingness to consider the prosecution of former Justice department lawyers who wrote memoranda opining that certain "enhanced interrogation techniques" were lawful.
U.S. law forbids "torture," which is defined as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain and suffering."
But what constitutes "severe physical or mental pain and suffering?" Most of us recognize as torture actions which maim or kill, such as the breaking of bones, pulling of fingernails, electrodes to the genitals, etc. But some on the left want to define as "torture" anything that makes a terror suspect temporarily uncomfortable, such as sleep deprivation, having to listen to heavy metal rock, exposure to cold or simulated drowning.
The "enhanced interrogation techniques" used on a handful of al-Qaida bigwigs were derived from what U.S. pilots and special forces personnel undergo in SERE training (Survival, Evasion, Resistance, Escape). Few in their right minds would describe the SERE course — through which thousands have passed without ill effect — as "torture."
But in this country, everyone is entitled to his or her opinion. Many on the left, however, wish to criminalize policy differences.
"With the ugly sanctimony of those who never had to make hard decisions, the American left demands show trials of those who kept us safe after 9/11," wrote retired Army Lt. Col. Ralph Peters in the New York Post. "Should President Obama acquiesce, he won't be furthering the rule of law, but dismantling it."
For Mr. Obama, his openness to the prosecution of former Bush administration officials is a flip flop, apparently pressed on him by some Democratic members of Congress, among them House Speaker Nancy Pelosi. For Ms. Pelosi, the hypocrisy is breathtaking, for she was among the congressional leaders who were briefed on the enhanced interrogation techniques, and she raised no objection to them at the time.
Why the flip flop? A news analysis in The New York Times provided a possible reason: "Mr. Obama and his allies need to discredit the techniques he has banned. Otherwise, in the event of a future terrorist attack, critics may blame his decision to rein in CIA interrogators."
A leftist canard of the last eight years was that the Bush administration had politicized intelligence. But there is no greater example of the politicization of intelligence than Mr. Obama's release of the terror memos.
The declassified portions spelled out in explicit detail the lengths U.S. interrogators were willing to go to extract information, which stopped well short of physical harm — information extremely valuable to terrorists, according to four former CIA directors. But the president redacted most references to the effectiveness of the techniques.
Mr. Obama's director of national intelligence, retired Adm. Dennis Blair, let the cat out of the bag in a memo to his staff: "High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al-Qaida organization that was attacking this country."
Politically motivated, ex post facto prosecutions of those who kept us safe after 9/11 would have the potential for blowback, as the headless corpse of Oliver Cromwell could attest. For Democrats are unlikely to be in power forever, and, as former George W. Bush aide David Frum put it, "If overzealousness under Bush becomes a crime under Obama, then underzealousness under Obama will become a crime under the next Republican president."
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