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...
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.
John Yoo's famous (or infamous) "Torture Memorandum" on enhanced interrogation is the justifying document which should be referred to.
In it, he asserts the word "torture" is ill-defined by existing law and proceeds to define a framework by which the Administration can operate without violating law. He goes into detail about what constitutes "suffering", "injury", "permanent harm", etc.
Like Brythan says, the Bush administration asserts no law was violated because enhanced interrogation is not torture. While the Obama administration claims it was indeed torture, no one was charged, which in my opinion gives greater weight to the Bush claim.
Essentially, Yoo determined exactly where the line between torture and "not-torture" was then walked right up to that line.
no one was charged, which in my opinion gives greater weight to the Bush claim. Uhhh... no. The fact that nobody has been charged probably was more to avoid all the political implications of prosecuting state officials who were torturing detainees with the -publicly stated- go ahead from the Bush administration. Prosecuting the people administering the "enhanced techniques" would have lead to claims that they were following the chain of command, and a demand of responsabilities from the higher-ups.
– SJuan76
Jan 10 '17 at 02:15
On the policy level, by aggressive use of obligatory euphemisms as propaganda.
Giving unbiased subordinates commands which sound criminal, even to a layperson, (e.g. "I order you to torture the prisoner"), might meet with disbelief, refusal, or whistle-blowing. Vague euphemisms however, (e.g. "I order you to administer enhanced interrogation techniques to the prisoner"), can initially baffle potentially skeptical subordinates into reflex compliance, after which positive reinforcement helps reassure the compliant that obliviousness and hierarchical safety go together.
There's some experimental support for the effectiveness of such indirect and euphemistic language. Milgram's replicable tests of civilian obedience successfully employed bland verbal prods and assurances that helped compel the obedient to choose or not choose whether they might continue (apparently) electrocuting a screaming person:
Please continue.
The experiment requires that you continue.
It is absolutely essential that you continue.
You have no other choice, you must go on.
Although the shocks may be painful, there is no permanent
tissue damage, so please go on
Whether the learner likes it or not, you must go on until
he has learned all the word pairs correctly, so please go on.
To sum up this article by politifact, there are grounds for them to be tried by certain governments but is unlikely due to the consequences on relations with the US. According to this article on wikipedia, the Kuala Lumpur War Crimes Commission (in Malaysia) issued a guilty verdict to Bush and some of his Cabinet, though the legal legitimacy of the commission is debatable.
Re-visiting after a while I feel another answer is justified.
You are actually asking several distinct questions:
I'll answer the first and the third one.
In your post you make a statement which already contradicts the premise of the first question:
"Obviously it was illegal."
I fully agree with your own statement: The government (Bush, congress) didn't make torture legal, because they couldn't. Nobody can. Torture is illegal and stays illegal. This is even though there were written laws and interpretations allowing torture, or denying that e.g. waterboarding is torture.
It is unusual to claim that a body of law and law interpretation which has been produced in a process conformant with the constitutional rules — the positive law — does not constitute applicable law. Such claims are only made when the results of the legal process deviate far from commonly accepted "self-evident" principles — usually human rights —, even though their conception was formally compliant and the resulting law forms a formally consistent body. The key is "self-evident". A sensible individual could simply tell that the written law was not abiding by commonly required standards.
The GDR soldiers killing fugitives climbing the Berlin wall were sentenced with such an argument because they did nothing forbidden according to GDR law. In its decision, the highest German court applied formerly established principles:
"Der Widerspruch des positiven Gesetzes zur Gerechtigkeit muß so unerträglich sein, daß das Gesetz als unrichtiges Recht der Gerechtigkeit zu weichen hat" ("the discrepance between the positive law and actual justice must be so unbearable that the statute as incorrect law has to yield to justice").
Another famous example is the prosecution of crimes committed by the National Socialist government.
Of course "actual justice" is in the eye of the beholder: It is no coincidence that both trials happened after a nation and its legal system ceased to exist. Positive law, even one as rotten as the Nazis's, is usually a formalization of the perceived "actual justice" of a government and its people; its actual injustice is a difference to a different frame of reference. One needs to assume an outside view to perceive that injustice.
This realization is the key to answer your question how the government got away with torture: The U.S. still exists. The uninterrupted line of succession from the government that declared torture legal makes it unlikely that "the positive law yield to justice". No American government will conduct the equivalent of the Nuremberg trials or even the "Berlin Wall guards" trials against former presidents or John Yoo, at least not before the revolution.
The history is frightening and interesting.
The hammer driving the nails through the hands of justice and humanity was wielded by some despicable individuals in various positions of legal influence: Specifically John Yoo in the Office of Legal Counsel, the two Attorney Generals involved and other counselors to the president and vice president. They provided legal opinions, collectively called the "Torture Memos", which suggested that torture is legally permitted under the circumstances and that individuals holding prisoners without due process and even individuals torturing suspects would be immune from prosecution.
Note that these opinions were not laws but interpreted existing law producing a legal effect. The president and other government members can formally rely bona fide on an opinion issued by the Office of Legal Counsel — in fact, this is exactly the Office's job. It gives authoritative answers to the government in cases of legal doubt. After the opinions were officially (but secretly) issued it was hard or impossible to hold individuals accountable for actions complying with the opinion: They could always make an innocent face and say "No way! Torture was illegal? But I was told it was not! How could I know!" Such argument has not prevailed in different circumstances, but of course successful prosecution depends on the possibility to prosecute, the will to prosecute, the power of the prosecutor and the power of the prosecuted. You may be interested in the Spanish criminal investigations against the "Bush Six", which include John Yoo. The political problems such a trial causes as well as the political pressure exerted on it are on clear display there.
While legal experts are to blame for flawed or openly malevolent opinions, and agents in the field are to blame for the execution of flawed or openly malevolent policies, it is essential to address the ultimate responsibility. In German we say "Der Fisch stinkt vom Kopf her" (the fish stinks from the head down). The ultimate responsibility for the atrocities clearly lies with the President whose administration felt that the situation warranted ripping out the heart of the Anglo-American law: Habeas Corpus. Everybody did what they did because they felt they had the blessing of the president and vice president: The legal counselors, the commanding hierarchy in the armed forces and the agencies, the soldiers, the torturers. It is amazing and sobering to see how fast all bulwarks and rules which protect the individual from executive overreach evaporate when they lack support. Not just any rules — 800 year old rules which were written in blood after long and hard fights: Do not kill. Do not torture. Do not hold individuals without judicial review.
Further reading can start at the Wikipedia article on the Torture Memos, the Torture Memo Guide in the New York Times or a number of books. I can recommend The Dark Side.