The Federal Torture Act, as John Kiriakou described it, was in force well before the September 11 attacks and had concrete enforcement history. Following World War II, the United States executed Japanese soldiers who had waterboarded American POWs — establishing waterboarding as a death-penalty offense under U.S. law.[1]
In January 1968, when a Washington Post photograph showed a U.S. soldier waterboarding a North Vietnamese prisoner, Secretary of Defense Robert McNamara ordered an immediate investigation. The soldier was arrested, convicted of torture, and sentenced to twenty years at Leavenworth.[2]
Kiriakou juxtaposed this enforcement history with the post-9/11 CIA program: “But then in 2002, like magic, it’s all legal.”[2] He stresses the statute itself was never touched: Congress never voted on any change to the Federal Torture Act of 1946, and the text was never amended. What changed was only the Justice Department’s own interpretation of it — Office of Legal Counsel opinions reclassified specific techniques as not constituting torture, making the practice legal in the executive branch’s own reading without any actual legislative act.[3] He traces the statute’s roots to Nuremberg: passed in 1946, the same year the U.S. executed the Japanese soldiers, it sits alongside the United Nations Convention Against Torture — a convention Kiriakou says the United States itself authored and is a signatory to — as the two legal bases on which he concluded the CIA’s post-9/11 program was a crime.[4][5]
‘The lawyers stood on their heads’ (The Inquiry)
John Kiriakou says torture is illegal “by any measure” under the Federal Torture Act of 1946 and the United Nations Convention Against Torture, and that Justice Department lawyers “stood on their heads to somehow make it not illegal” after 9/11.[6][7]