The comments on the Reverse Yoo hypothetical are fascinating, and I wanted to try to draw some tentative conclusions from them. The most interesting result to me is that for a lot of Yoo’s critics, whether Yoo followed the law or not is mostly beside the point. The primary objection is that Yoo’s conduct permitted an act that they see as immoral. This is an interesting result because Yoo’s harshest critics generally frame their criticisms of Yoo using legalisms: He “defied the law,” is a “criminal,” is a “war criminal,” must be “disbarred,” etc. These are all legal terms and legal concepts. And yet the answers to the Reverse Yoo post suggests that to a lot of these critics, their primary objection is not to the law, but rather to morality. Yoo must be punished because he is morally blameworthy, quite apart from whether he violated the formal “law.”
The rub is that there are two competing conceptions of morality here. To the harshest Yoo critics, the moral evil is waterboarding. Waterboarding is evil, so stopping it is a moral good and facilitating it is a moral evil. But to Yoo’s strongest supporters, the moral evil is terrorism. Sitting by and letting innocent Americans die from attacks when you could stop them is a moral evil, while stopping the attacks is a moral good. Further, each side denies the legitimacy of the other by making factual assumptions that undercut the other’s premises. To Yoo’s opponents, it is gospel that waterboarding doesn’t work, so waterboarding does not really further a moral good. To Yoo’s supporters, it is gospel that every person waterboarded is an evil terrorist, so waterboarding does not really inflict a moral wrong.
If I’m right about this, then I think it helps explain why we’re doomed to run around in circles with the John Yoo/torture question. To a lot of people this isn’t a legal issue, even if it’s framed in legal terms. Rather, it’s a moral question presented as a legal question. And it’s a moral question on which public opinion appears almost exactly evenly divided: According to a 2009 poll, 50% of the public approved of how the Bush Administration interrogated terrorist suspects and 46% disappproved. With each side resting its views on one moral conception and denying the legitimacy of the other side’s view, we’re destined to run in circles presenting competing moral arguments as legal arguments.
1040 says:
Even granting that this is purely an issue of efficiency and nothing else, I am happy to be swayed by proof that torture works in providing good intelligence. I haven’t seen any yet.
The problem with this conclusion is that the hypothetical not only discards 50 years of forward movement in international law on this subject, it also ignores centuries of moral reasoning (golden rule, anybody?). So, the reverse scenario is not remotely symmetrical to the forward scenario.
March 1, 2010, 7:01 pmB.D. says:
Yes, it would be nice if people limited their analysis to the narrow question of whether Yoo provided sound legal advice. But that’s asking too much.
If Yoo’s legal analysis was lacking, then perhaps that flawed analysis can be explained by Yoo’s eagerness to permit interrogation methods that he thought necessary to prevent terrorist attacks. In other words, the legal question comes first, the moral question second. The moral question explains his motivations.
March 1, 2010, 7:10 pmc.s.b. says:
I had drawn a similar conclusion to the comments of the prior thread. Even though couched in terms of statutory construction and legal precedent, the debate over the Yoo memos is not a legal one.
The first comment to this post nicely demonstrates this, particularly when it characterizes developments in international law as a “forward movement” that correlates to moral precepts.
March 1, 2010, 7:11 pmTim says:
I hope you aren’t suggesting that a “war criminal” has not violated the “‘formal’ law.”
The law of war (and their severe punishments) are the defining features of the difference between real warriors and terrorist scum. They certainly are as close to the “formal” law as any defendant could ever hope for. Have doubts? See Yamashita.
March 1, 2010, 7:16 pmMark Field says:
A few thoughts.
First, Yoo’s opponents all see terrorism as a moral evil. They don’t want our side to be sullied by committing its own moral evils.
Second, “sitting by and letting innocent Americans die” is a false dilemma for 4 reasons:
1. There’s no evidence that waterboarding actually does result in evidence to prevent any such thing.
2. There’s a good deal of evidence that our behavior at Guantanamo actually motivated terrorists.
3. There’s no evidence that waterboarding detainees is the only way of preventing American deaths.
4. While we agree that it would be wrong to sit around and let innocents die, we don’t agree on the cost of intervening. For some of us, torture is so inhuman — like rape or child molestation — that it’s intrinsically wrong in any reasonable scenario.
Third, as I read most of Yoo’s critics in your hypothetical thread, they agreed that ReverseYoo violated the ethics rules (implicitly agreeing that he should be disciplined), but thought that behavior less heinous than that of RealYoo.
Fourth, aren’t many legal issues in fact moral ones? Take rape, for example. I think I can safely say that we all agree it’s immoral (though in these comment threads I’m losing my confidence on that score), yet we demand the rapist be punished on legal grounds. That’s not a conflict of 2 value systems, that’s a situation where they reinforce each other.
The same holds true for torture. It’s against the law because we think it’s immoral. And Yoo’s failings as a lawyer violate what we expressly call “ethical” standards imposed by law.
I’m not sure I see your distinction.
March 1, 2010, 7:16 pmBobC says:
The problem with that analogy is rape is a lot more clearly defined. We agree torture is illegal, but not what happened is torture.
I think a better example would be a lawyer that found a way for his client to commit “rape” but never be in violation of the law. I think there was an example in a Star Trek episode.
March 1, 2010, 7:25 pmTim says:
Yoo’s failings go behind just morality. Yoo attempted to create an intellectual justification for conduct so atrocious that it is prohibited by an international treaty. Whether it encouraged terrorists or not makes little difference.
If nothing else, maintaining our morality in wartime is critical because of how it may affect our servicemembers’ treatment by our enemies. If our enemies (supposing they are foreign governments who agree with our international agreements) do not have confidence that we will maintain our obligations to their POWs, they will be less likely to perform theirs with our troops. And I don’t think one has to be a veteran (although I am) to understand that needless suffering of our troops if taken captive must be prevented at all costs.
If Yoo was right, and there really are no rules of war when fighting an enemy like this one, there are a lot of things that need to change about the way the wars are being conducted, including our rules of engagement (eliminate them), our weaponry (bring out the expanding bullets), and our tactics (kill them all and let God sort it out). I don’t think that’s the road that Yoo or anyone else wants to go down, but they certainly acted like it.
That might make sense if there was a broad consensus that what Yoo thought was a loophole in the law actually was a loophole. There certainly is not agreement on that, and the split is more than just ideology.
The fact is that in the past, people have been executed for waterboarding others. Why that isn’t sufficient for claiming that in 2010, waterboarding is/was illegal and that it was known or should have been known that waterboarding was illegal is beyond me.
This was not an issue of first impression as Yoo suggests.
March 1, 2010, 7:26 pmruuffles says:
You have real rape (immoral), and then you have consensual intercourse that is only rape because the woman is one day shy of her 18th birthday (illegal). The gray area of torture has much in common with the gray area of rape.
March 1, 2010, 7:29 pmorca says:
This is an interesting result because Yoo’s harshest critics generally frame their criticisms of Yoo using legalisms
In Hannah Arendt’s book, “Eichmann in Jerusalem,” Eichmann was asked, “Was it difficult for you to send these tens of thousands of people to their death?” And Eichmann answered very candidly, “To tell you the truth, it was easy. Our language made it easy.”
His interviewer asked what that language was, and Eichmann said, “My fellow officers and I coined our own name for our language. We called it amtssprache – ‘office talk.’” When asked for examples, Eichmann said, “It’s basically a language in which you deny responsibility for your actions. So if anybody says, ‘Why did you do it?’ you say, ‘I had to.’ ‘Why did you have to?’ ‘Superiors’ orders. Company policy. It’s the law.’”
March 1, 2010, 7:31 pmDilan Esper says:
The problem with that analogy is rape is a lot more clearly defined. We agree torture is illegal, but not what happened is torture.
Actually, one of the major takeaways of first year Criminal Law as taught at nearly any American law school is that rape is VERY difficult to define, even though we all think it is bad.
In any event, if I can comment on Professor Kerr’s post, I think he both makes a good point but also misses the point. He is completely right that a lot of the discourse on Yoo comes down to how one resolves the issue of the balance between perceived reductions in the risk of terrorism and perceived human rights violations inherent in torture.
But he also misses that as Mark Field points out, many of the liberals in that thread (myself included) freely conceded that a reverse Yoo who refused to accurately state the law to his or her employer would be in violation of ethical duties.
And indeed, one of the aspects of this debate that I really don’t like is that I suspect that a lot of the defenders of waterboarding in fact have no problem with simply torturing terrorists. (Indeed, I would argue that this is much more an issue of deserved punishment than an issue of getting good information. But that’s another discussion.) In other words, if the Bush Administration had decided to crush the testicles of KSM, would very many of these folks really be condemning that? I absolutely doubt it.
In other words, I think at least many on my side of this debate are able to draw distinctions between what we think the law is and what we would like it to be, and are able to say in the reverse Yoo situation that there is a duty to say what the law actually is. Whereas my perception is that the other side starts from the conclusion that they want to impose a lot of discomfort on people they regard as terrorists and reason backward to claim that any authority that might preclude this must be hopelessly vague and can never impinge on Presidential authority anyway. I don’t, honestly, think they actually care what the law is– they certainly don’t ever deal with, for instance, the long tradition of holding that various forms of mock execution are torture (a tradition that basically forecloses claims that waterboarding is not torture).
I’d have a lot more respect for them if they simply said “we should torture terrorists, Bush and Cheney were right to do so, and if they violated any laws that indicates that the laws should be changed”. I’d still disagree with them, but that’s a lot more accurate description of what they actually feel.
March 1, 2010, 7:36 pmNunzio says:
I agree. This is a debate that both sides will never agree on because of different moral values.
March 1, 2010, 7:42 pmCGordon says:
This past semester, I wrote a seminar paper on Rule 2.1 of the Model Rules in which I critiqued Prof. David Luban’s reading of that rule. (Luban was one of the chief agitators pushing for professional discipline in this case. He reads Rule 2.1 so as to require lawyers to remain impartial to their clients’ wishes. This reading is wrong as can be plainly seen from the first draft of the rule which clearly aimed to protect clients from lawyers with conflicts and greed. See http://www.abanet.org/cpr/mrpc/kutak_1-80.pdf.) My paper pointed out that Prof. Luban has written that lawyers should be allowed to counsel their clients to disobey immoral laws (say one that is discriminatory or the like). He is thus critical of the Model Rules that do not allow for this. Yet, he wants to punish Yoo, Bybee, and others for allegedly doing much the same, except that they “twisted” the law instead of advocating that the law be ignored. In his book, Luban acknowledges the specific problem raised by this post (reverse Yoo) in his book, but, for some reason, he seems satisfied with the notion that the lawyers in the reverse hypothetical should twist the law and pay the price. I don’t get it.
March 1, 2010, 7:45 pmlgm says:
This might miss the point. If the question is whether Yoo should be disbarred if his legal analysis is deemed correct, even many of us Yoo haters would have to admit that he should not be.
If the question is whether Yoo did the right thing if his legal analysis is deemed correct, the Yoo hating answer is NO. He was not legally or ethically or morally bound to facilitate torture, yet he chose to do so. If there are no legal repercussions, Yoo at least should bear the mark of Cain.
There are lots of legal yet morally repugnant things a person can do.
March 1, 2010, 7:55 pmohwilleke says:
Both Yoo and Reverse Yoo could be violations of professional ethics. But, professional discipline normally makes a distinction in sanction between violations with clearly identifiable victim who is harmed, and those that do not.
So, real Yoo would receive more harsh punishment (perhaps disbarment or suspension) than Reverse Yoo, who might receive an admonishment or censure.
For example, a Colorado DA who apprehended a dangerous felon by impersonating a public defender in violation of professional ethics of truthfulness was found to have violated professional ethics but received only a mild sanction for his conduct.
March 1, 2010, 7:56 pmleo marvin says:
Which is why I suggested it might be useful to ask supporters of “enhanced interrogation” how they’d feel about using those techniques on an innocent non-terrorist who refused to disclose details of planned attacks they’d innocently become aware of.
(The corresponding question to Yoo’s critics, i.e., what they’d think about torturing a known terrorist certain to have information about an imminent attack, assuming torture was proven effective, has been covered at excruciating length in a myriad ticking time bomb debates.)
March 1, 2010, 7:58 pmBob from Ohio says:
Maybe you do but most don’t.
Just look at the Predator threads. Most of the same people who oppose torture also oppose killing terrorists with drones. So, its not just torture they oppose.
They also oppose us being in Afghanistan period. They opposed Iraq. They opposed intercepting terrorist calls. They oppose military tribunals.
Many support the PLO and Hamas.
They oppose nearly every effort to fight terrorism. So, no, I don’t think Yoo’s opponents all see terrorism as a moral evil. Not at all.
March 1, 2010, 8:03 pmConstantin says:
First, Yoo’s opponents all see terrorism as a moral evil. They don’t want our side to be sullied by committing its own moral evils.
I don’t think this is close to true. There are plenty of people who would explain the terrorists’ actions as justified reactions to our imperialism, etc. Not most, but not none.
Second, “sitting by and letting innocent Americans die” is a false dilemma for 4 reasons:
1. There’s no evidence that waterboarding actually does result in evidence to prevent any such thing.
Not true. There’s plenty of conflicting evidence.
2. There’s a good deal of evidence that our behavior at Guantanamo actually motivated terrorists.
Absurd leftist talking point. “We offended these guys’ previously delicate sensibilities, so only then did they decide to wage jihad.” If anything, closing / neutering Guantanamo shows us to be the very “paper tiger” that emboldened bin Laden to start his campaign against us, in his own words.
3. There’s no evidence that waterboarding detainees is the only way of preventing American deaths.
Agreed. It might be the best way, though, or if not the best, still a good way. I don’t know what all of the other ways are.
4. While we agree that it would be wrong to sit around and let innocents die, we don’t agree on the cost of intervening. For some of us, torture is so inhuman — like rape or child molestation — that it’s intrinsically wrong in any reasonable scenario.
You just made Orin’s argument for him.
March 1, 2010, 8:05 pmorca says:
Um, we oppose killing civilians with drones.
March 1, 2010, 8:05 pm1040 says:
Ooh, nice strawman. Can I haz?
March 1, 2010, 8:05 pmJones' Cell Mate says:
There are lots of legal yet morally repugnant things a person can do.
When you seek the counsel of an attorney, he will generally presume you come to him for legal advice, and not for ethical advice. Generally, a client is tasked with the ethical end of the equation. This comes up in business affairs all the time where an attorney may allow that X is legal, and then warn that X implicates other, non-legal concerns. Given the context of the Yoo memos, the warning was unnecessary.
Most importantly, if you do seek out an attorney for ethical advice (and God help you) don’t critique his legal analysis if you don’t like his ethical framework. It’s dishonest. Probably even immoral.
March 1, 2010, 8:11 pmS says:
I was also struck by the fact that you seemed to ask for a legal analysis and got so many responses regarding morals. I think many condemned alternative-Yoo but still seemed the need to discuss their moral judgment.
At any rate, I found the hypothetical incomprehensible as to what could make the hypothetical lawyer act so contrary to his training and oath, except for maybe the assumed fact that he was an academic, who had never practiced law and did not understand how to be a lawyer.
Also, I don’t think you can take from that thread though, what “so many of Yoo’s harshest critics” think. That’s too much for a blog thread to carry.
March 1, 2010, 8:12 pmohwilleke says:
Is it innocent once you refuse to disclose details of a planned attack of which you’ve innocently become aware? Attorneys and psychiatrists who learn such things from clients/patients aren’t allowed to use their professional confidentiality duties/rights to refrain from disclosing in those circumstances.
One may not have a legal duty to affirmatively disclose this information if not asked, but I don’t think one has a right to withhold information from a government official in this situation either, without becoming culpable yourself.
March 1, 2010, 8:12 pmCheckEnclosed says:
It seems that there were two types of questions that Yoo (or OLC in general) might have been asked to answer:
1) If we do this stuff and we are someday captured and tried before a fair international tribunal (not Al Qaeda or the Taliban, which would kill us in any event) that does not have an “American Exceptionalism” exception to its law on torture, what are our chances of acquittal (descriptive answer) and should we be acquitted (normative answer)?
2)If we do this stuff and someday we are captured and tried before a U.S. Court, what are our chances of acquittal (descriptive answer) and should we be acquitted (normative answer)?
It seems like Yoo/Bybee were only addressing question 2.
When you think about it, it seems unusual to even consider that a nation involved in conflict would subject high-level policy makers to criminal sanction for decisions made in an arguably good faith attempt at prevailing in such a cofnlict. I lack detailed knowledge of the results of any such attempts in the UK/Northern Ireland situation, but tend to think tht in most cases, even where new governments took over from bitter rivals, the general outcome is more along the lines of Truth & Reconciliation proceedings.
That we really do think that such an outcome would be plausible or even desireable here gives support to the idea that maybe America is somewhat of an exception among nations.
March 1, 2010, 8:15 pmyankee says:
I can’t speak for any of Yoo’s critics other than myself, but to me it is extremely significant that Yoo’s memo was designed to facilitate conduct that was not merely immoral but also criminal. The purpose was to make it possible for government employees to claim they were acting on advice of counsel, thereby giving them political cover to commit serious felonies without the risk of prosecution. That’s not merely an authorization of moral evil, but is also a threat to the rule of law.
I suppose you can say that my “primary” consideration is morality in some sense. I consider this much worse than writing a fraudulent tax opinion because I regard torture as evil, vastly worse than tax fraud.
I would not say it is “gospel” that torture doesn’t work! I will admit that in principle torture could produce intelligence that could not be obtained by other means, and this intelligence could defuse terrorist plots that would save large numbers of people, and the number of people saved could be larger than the number of people killed by enemies who don’t surrender because they don’t want to be tortured plus the number killed by enemies who wouldn’t have been enemies if anti-American propagandists weren’t able to hold up torture as an example of how America is the Great Satan. If you come up with a convoluted enough hypothetical I’ll even admit that torture could, in principle, be a justified moral evil.
However, I have yet to see any evidence that this is the case. The sum total of evidence that waterboarding has saved even one life consists of some self-serving statements by Dick Cheney and a CIA memo involving time travel. Against this is centuries of recorded history in which torture has been used principally as a method of extracting confessions and inspiring terror, as well as reason to believe that the real purpose of the interrogations was to sell the war in Iraq.
March 1, 2010, 8:16 pmGreg Adams says:
Orin,
There is actually a third competing conception of morality here. It surrounds our conception of the role of a lawyer dealing with a client who wants to do something that is — or may be — illegal. The lawyer has voluntarily assumed the role of honest advisor, has promised not to lie to the client about what the law demands or forbids. (M.R.P.C. 2.1 “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”) This is a moral, and not merely a legal, evil. And it is an evil that Yoo committed, under his critics’ view of what happened.
Of course, in this view, his “client” wanted him to lie, wanted him to give advice that was anything but candid. But why did that matter to the “client”? Because in our system, lawyers’ opinions carry weight and are accorded respect. The CIA could rely on a legal opinion from OLC because the lawyers at OLC, like all US lawyers, had promised not to lie for the client in giving legal advice about what the law allows. (N.B., this is not advocacy for the client, it is advice to the client. Nor is it the same as saying, “The law would allow/require you to do that, but it would be morally wrong to do so and you should not.” These statements are not lies and do not violate Rule 2.1 or the moral principle underlying it.)
As Yoo’s critics see his actions, he lied to his client and perverted the lawyer’s role. That, to me, is a serious moral evil, one that undermines our core values and the role of lawyers in our democracy. And one that is as serious in the Reverse Yoo Hypothetical as in the actual case.
March 1, 2010, 8:17 pmLongwalker says:
One of the many problems with this question as well as other difficult questions is that the words being used do not have the same meaning to everyone. The word “waterboarding” is just one example. For anyone with particular knowledge of the practices used by the Japanese to torture prisoners, what we know as “waterboarding” does not describe the “water torture methods” of the Kemptai. What I have been reading about this subject here and on other blogs shows either a lack of basic historical knowledge of the subject or a fine disregard of the facts.
March 1, 2010, 8:20 pmMichelle Dulak Thomson says:
Tim,
Yoo attempted to create an intellectual justification for conduct so atrocious that it is prohibited by an international treaty.
You are not, I hope, suggesting that any conduct prohibited by an international treaty is necessarily an “atrocity.”
March 1, 2010, 8:24 pmcboldt says:
– destined to run in circles presenting competing moral arguments as legal arguments –
March 1, 2010, 8:24 pmThe assumption being that the law is sufficient, without more, to maintain a moral ground. Said another way, that “if it’s legal, it’s moral; and if it’s not illegal, it’s not immoral.”
There is an old tension here, and it appears recently as equity vs. law. I’m cocksure that the human condition is to run in circles, when it comes to competing bases for decision.
Del E. says:
Orin:
Doesn’t the dichotomy you pose between Yoo’s supporters and opponents lead us right to the question: Is there any limit on the executive’s power post-9/11?
That is, in the name of combating terror, it’s “no holds barred” — no matter what Congress or the Constitution say, all authorities must yield to the C-in-C clause?
So, as Andrew Sullivan has opined, under Yoo/Bybee/Cheney, we live in a monarchy. Not a Republican form of government.
March 1, 2010, 8:27 pmRandy says:
BobC” The problem with that analogy is rape is a lot more clearly defined. We agree torture is illegal, but not what happened is torture.”
When Cardinal Mendzety (sp?) was waterboarded by the Polish communists, conservatives said it was torture.
Constantin: “There’s plenty of conflicting evidence.”
Sure, waterboarding and other forms of torture can produce information. Lots of it, in fact. The problem is sorting out what information is reliable and what is unreliable. Do you have an effective way of determining that? If not, then torture simply doesn’t give us much.
““We offended these guys’ previously delicate sensibilities, so only then did they decide to wage jihad.”
No one said that. We what do know is that the photos of Gitmo and the stories of torture have helped terrorists recruit more terrorists. I don’t see how that is a good thing.
“t might be the best way, though, or if not the best, still a good way. I don’t know what all of the other ways are.”
Actually, we do know what the other ways are. Many people in the intelligence community have said that interrogations, if handled patiently and properly, gain the suspect’s trust, and you get much more reliable information.
I get a little tired of the straw man arguments that the people who oppose torture are naive dogooders who want to pamper evil people. I have a friend that I lost in the Pentagon crash, and I know many people who had friends who were lost in the twin towers, so no, I really don’t want to see that happen again.
Which is all the more reason that we should look at ways that are proven to yield good information, and we do have those. The Nazis, no bleeding heart liberals, decided back in the 30s that torture yielded so much bad information that they dropped using it. Surely, if torture was so effective, they wouldn’t have dropped it.
March 1, 2010, 8:30 pmRPT says:
This argument only makes sense if everyone in the Middle East-Iraq-Afghanistan is deemed a terrorist. That is not the case.
The root of the problem is twofold: (1) not preventing the 9.11 attack in the first place, and (2) going after Iraq from day one rather than the persons responsible. Neither of these was the fault of those not in charge at the time.
Finally, one’s support for torture does not give credibility for blustering slanders that anti-torture people support terror. That is a blood libel.
March 1, 2010, 8:31 pmloki13 says:
I’m cross-posting this from the previous thread, as I don’t think OK encapsulates my beliefs in this post:
1. The first step is to determine what Yoo’s proper role is in the analysis. There is a difference between giving an honest appraisal of an area of the law and “creative lawyering.” Creative lawyering is often seen in litigation, where two parties can view the same set of facts, the same statutes, and the same legal principles somewhat differently . As an advocate for one side, you try to emphasize those areas that are most favorable to your client, while minimizing the areas that are less advantageous. This does not allow for misstating the law, but it does allow you to marshall the law in a way that is most favorable to your desired outcome.
2. I believe that Yoo’s role was to give an honest appraisal of the law. In other words, as a descriptive matter, he should have been describing the law as it is, not (normatively) describing the law as he wished it to be. However, even if you believe he had a mandate to engage in “creative lawyering” then his torture memos fail.
3. Why? Well, to be quite frank, he doesn’t even bother engaging with the great weight of authority (I would say all the authority) that was against him. There are no caveats that he gives to his client. Instead of a reasoned analysis that engages with, and then attempts to diminish the countervailing law (which would be acceptable if you presuppose that he was engaging in creative lawyering) he simply refuses to acknowledge it.
4. But more importantly, his role should not have been to engage in creative lawyering. His client (the government) would have been best served by a thorough understanding of the law a it is– we don’t want lawyers for the government given a mandate to reach a result that enables the government to plausibly break the law given that advice. Moreover, had he engaged in a more truthful and reasoned analysis, his client would have realized that other actions (such as changing the law) would have been more appropriate.
5. Finally, I find the actions of the reverse Yoo just as repugnant from an ethical standpoint. If the law allowed waterboarding and other forms of torture, it would have been his job to inform the client of that– under the Model Rules, he could have included social advice (this would be a bad idea), and he could also resign. But purposefully misleading your client because you think your “moral outcome” is better is a dangerous road to tread, and should not be done by attorneys. As we can see from these comments, there are those (misguided and blinded by 24 in my opinion, but still) who believe torture is A-OK… and allowing one attorney to mislead his cleint because I “know” how bad torture is just as reprehensible as allowing another attorney to mislead his client because they “know” everything changed after 9/11.
I’m going to add an addendum to my fifth point. Upthread, an outstanding point was made delineating the difference between an unjust legal system (say, Nazi Germany) and a relatively just legal system (like, say, ours). If you work within a relatively just legal system, then you should follow the rules as the rules, in totality, work to protect the system and justice overall even though in individual application they might lead to an “immoral” outcome. An example used above, which I believe to be salient, is this:
Defense lawyer hears his client confess to an unsolved murder. The “moral” thing to do is to tell the authorities. However, were we to allow attorneys to do this, then the whole system of attorney-client privilege would be undermined, and would cause people to be guarded with their counsel, resulting in less effective service (and less justice) overall.
Something similar is going on with the Yoo and Reverse Yoo situation. In each case, we have an attorney that “knows” the correct outcome (one based on either kowtowing to his superiors/love of an unbridled executive/long-time fandom of the Saw series, and the other based on his belief in the immorality of torture). They purposefully subvert the law, and give incorrect legal advice, in order to advance their own personal causes. Note that while the real Yoo might have believed that he was advancing his client’s cause, that was not his decision to make- his client should make the decision after being fully informed.
So that’s a more granular response to Orin Kerr. While I personally believe that the outcome of Reverse Yoo is superior to Real Yoo, I would deplore the means both used to get there. Both give a bad name for lawyers- putting their own interests and beliefs above both the law, and the needs of their clients.
March 1, 2010, 8:34 pmFred Williams says:
Orin:
Maybe only law professors think it strange when a public policy debate with heavily legal overtones strays into moral questions. One thing the citizen wants is to be able to see the nation’s public policies as moral. If the law does not allow such policies, it would be strange if they did not want to change the law; if the consensus is broad, the law will be changed. Law is slow to adapt, e.g., to changing computer technology, as it was during many technical and social changes in the past. It is similarly slow in adapting to changes in society’s moral consensus — pornography for instance.
It is interesting to debate laws technically, perhaps with an orientation to predicting how the 9 old men and women will rule if an issue manages to get to them — or more practically, how this or that lower court would rule. That’s a key part of the lawyer’s skill set. It separates him/her from the citizenry at large. For a citizen with a need to fight out a problem in court, having someone with that skill set is essential.
In debating what is torture and whether our society should engage in torture and reward those who are perceived as having been morally implicated in past acts of torture, those skills are of only marginal relevance. What should be the law is the question for the citizen, not what is the law.
For those who are good with a hammer, the world’s a nail? For the lawyer, all public policy debates should focus on arguments proper in a brief?
I am reminded of what I consider an important debate of whether necessity can justify the executive violating a statute: “Certain it is, that no arbitrary prince, when meditating the subversion of the constitution, ever was at a loss for lawyers and judges to second his designs and in spite of their learning, and in spite of [253] the religion of the oaths that bound them to support and maintain the constitution. And so ship money and the dispensing power, have, in former times, had the vile countenance, and, if it could be so called, the authority of the bench, and of the sages or the fathers of the law (as Charles 1 named his ship-money judges) while a Hampden, and such like patriots, who were the greatest honour, and the greateat blessing of England in their day, stood forth the saviours of their country, by resisting the usurpations of the crown, supported by the perfidy of corrupt judges.” 16 New Parl. Hist. 252-53.
Torture is malem in se, forbidden by the common law, but occasionally used by the prerogative of the kings, up to the time of Charles I, of unhappy memory to those who value democracy and rule of law. Three hundred years of rejection of it. How close is Bush to the last chief executive who used it?
Orin: I hope this does not sound personal to you as opposed to Yoo. It is not so intended. I’ve always liked and admired you and your scholarship, even when I disagreed. But I have no more admiration for Yoo than for the lawyers who tried to help e.g. Charles I, James II, and George III rule with the divine right of kings and to do objective evil that what they thought would be good might come of it.
March 1, 2010, 8:35 pmMatt says:
Orin,
Your posts may well explain why the public is doomed to run around in circles on this question. But I’m not sure why lawyers would experience that difficulty. Many lawyers believe that waterboarding marked a low point in our country’s moral trajectory. But I wonder who among them would admit that, if they had worked at the OLC at the relevant time, and if concluding that waterboarding was unlawful would have entailed “fudging” the legal analysis, they would have gone ahead and fudged.
I think most lawyers in Reverse Yoo’s position would not fudge. Instead, they would acknowledge the correct legal standard while advancing, as forcefully and truthfully as possible, reasons to change the law and forbear from waterboarding in the meantime.
March 1, 2010, 8:37 pmS says:
Michelle
What don’t you understand about Tim referring to a United State’s Treaty Against Torture? (hint: subject matter, atrocities)
March 1, 2010, 8:38 pmTim says:
No. I am pointing out that it is so atrocious that we thought prohibiting it required an international response, and recognized that for obvious reasons, a domestic ban on torture would be insufficient.
March 1, 2010, 8:44 pmporterhouse says:
I believe four concepts are involved in this this discussion–interrogation, torture, legality, and morality.
Waterboarding can indeed be torture, but I believe the way the Bush administration employed the tactic it amounted to interrogation. Now, the law might prohibit waterboarding regardless of whether it is used for torture or interrogation; however, just because something is illegal does not make it immoral–and vice versa. Using waterboarding in order to gather high grade intelligence is moral behavior, whereas waterboarding an individual in order to inflict pain with no regard to intelligence gathering is torture and immoral.
One must first determine if an individual can provide high grade intelligence. In war we believe killing individuals is morally justified. The US must always be concerned about collateral damage in war, but in the past we have justified killing many innocent civilians at times when we felt we had no other option (Dresden and Hiroshima). In certain wars, we must worry about winning over the “hearts and minds” of our adversaries and we must be very cautious and sometimes even put our soldiers at greater risk in order to further the larger goal of winning the war. This concern for the greater good of the war effort is the only thing that should limit the interrogation tactics we employ on high value enemy combatants. We must also remember that many of the high grade enemy combatants will eventually be executed, and we are not using these tactics to get them to confess to crimes, we are using the tactics to gather intelligence.
We must NEVER torture individuals, and we should not engage in interrogation tactics that result in “remember the Alamo” battle cries for our opponents that end up putting our brave men and women fighting overseas in GREATER danger. However, we must permit our intelligence community all the tools they need in order to gather intelligence to help us win the war.
March 1, 2010, 8:56 pmAnonsters says:
So is this Orin Kerr’s official endorsement of Ronald Dworkin?
March 1, 2010, 8:58 pmyankee says:
In what material respect do you contend waterboarding practiced by the U.S. government was different from waterboarding practiced by the Khmer Rouge, the WWII Japanese, the Spanish Inquisition, etc.?
March 1, 2010, 9:01 pmDilan Esper says:
This past semester, I wrote a seminar paper on Rule 2.1 of the Model Rules in which I critiqued Prof. David Luban’s reading of that rule. (Luban was one of the chief agitators pushing for professional discipline in this case. He reads Rule 2.1 so as to require lawyers to remain impartial to their clients’ wishes.
CGordon:
I won’t comment specifically about Model Rule 2.1, but since you are apparently in law school, I will give you this piece of advice as a practicing lawyer. It is well established as a matter of professional ethics that your job, when writing a memorandum for your client, is to fairly characterize the law so that your client has accurate guidance and can confine his or her conduct within the law. This means that you must inform your client of any authorities that a hypothetical prosecutor or judge might reasonably rely on in finding that your client’s actions are not within the law or instructing a jury that might reasonably find the same.
Note that this does not mean that your client’s wishes are irrelevant to your analysis, as you very well may be instructed by a client “I wish to do X– does the law permit it?”. But it does mean that in analyzing that question, you are quite clearly prohibited from saying that the law permits something simply because your client wishes to do it, and should you advise a client that the law permits him or her to do something that the client wishes to do, without clearly and accurately discussing any authorities that might militate against that position, you expose yourself to malpractice liability and have violated your professional ethics obligations.
It’s all well and good to treat Yoo’s case as an academic matter and to criticize Prof. Luban if you wish, but when you go out into the world and practice law, doing what Yoo did in the context of a private client is an excellent way to get smacked with a malpractice suit, and the sooner you understand this the better.
March 1, 2010, 9:01 pmptt says:
Before we consult polls to determine our legal or moral course, how about a full airing of the issue, not in sound bytes, but in a court of law? You know, where issues like this are supposed to be decided.
Heck, televise it, too, if what you want to measure is informed public opinion.
March 1, 2010, 9:04 pmStash says:
Well, I certainly do not have a problem saying that Yoo would be equally remiss in the reverse scenario and rightly subject to discipline under those circumstances as well. The legal work was shoddy at best, and the defense of incompetence in this case is not credible. Of course, as in the reverse case, he would garner large political support that would likely make actual discipline as difficult and controversial as it is here.
But, it seems to me that the moral dimension of either of the scenarios should go to the level and type of discipline, rather than whether there was a breach of duty. In my view, both scenarios are ethically reprehensible. Both could, at least theoretically, lead to bodily harm of innocent third parties. And, the defense in either case would be that the distortions were made with the best of intentions.
However, I agree with Professor Kerr in that we are likely to continue to go around in circles on this because of the political dimension. But it is equally true that Yoo’s critics’ and supporters’ mostly non-legal bases for their opinions does not change the underlying legal issue, which OK admirably tries to bring out. The bulk of this controversy is about the moral aspects of the situation.
If the same type of analysis and omissions of contrary authority used to reach the OLC opinion had been used to come to the conclusion that a certain tax shelter was not illegal under the tax code, there would be little question in my mind that Yoo would be subject to discipline and possibly prosecution.
March 1, 2010, 9:06 pmptt says:
You appear to be suggesting group waterboarding would be acceptable, cuz in a group of 20 or so, surely someone must be guilty…
March 1, 2010, 9:07 pmHugh says:
We still get back to the question of whether the “waterboarding” practiced by the US interrogators was “torture.”
Excuse me, our enemies in this war are going to scream outrage no matter how benign our actions.
Democrats/Liberals hate Republicans/Conservatives. In 1984, at the Ohio State University College of Law, there were students who asserted that a lawschool newspaper’s endorsement of Reagan for president was a racist act. I am just waiting for the day when being registered as a Republican is determined to be a war crime.
March 1, 2010, 9:10 pmElliot says:
In 1955, if a Alabama cafe owner asked a lawyer if it was legal to refuse service to Blacks, would a correct legal opinion be, “Yes, it is legal to refuse service to Blacks?”
What would his or anyone’s opinion on segregation have to do with the question?
March 1, 2010, 9:16 pmMalvolio says:
A more obvious strawman is difficult to imagine. Del, do you honestly think that anyone in the US would be willing to defend the proposition “there is no limit on executive power”?
You might mean “Yoo’s position is inevitably tantamount to removing all limits on executive power” but that (a) would take a lot of explanation you haven’t done and (b) seems indefensible in the face of Yoo’s drawing of explicit limits on executive power.
March 1, 2010, 9:19 pmBob from Ohio says:
Tough. You can dish out the the Nazi comparisons (talk about blood libels) and make grade school “bedwetter” taunts but can’t handle anything thrown back at you.
March 1, 2010, 9:30 pmDilan Esper says:
Tough. You can dish out the the Nazi comparisons (talk about blood libels) and make grade school “bedwetter” taunts but can’t handle anything thrown back at you.
This statement may be many things (and it says many telling, awful things about the character of the person who made it), but it is not a policy argument. It’s a schoolyard taunt.
March 1, 2010, 9:34 pmJames H says:
For what it’s worth, in the Reverse Yoo hypothetical, I would feel strongly against waterboarding. And as a policy matter, I would argue against it vociferously. However, if the relevant statute was on point and clearly authorized waterboarding and there were no contravening laws, then he would have to advise that it is indeed legal … and, for what it’s worth, I would understand an opinion that authorizes waterboarding in such an instance. I wouldn’t like it for moral reasons, but I would understand why he did what he did.
That said, in the reverse hypothetical, I would expect his memorandum authorizing it to be accompanied by (if it’s at all within his purview) documentation that indicates why he thinks it’s a bad idea policywise.
March 1, 2010, 9:35 pmDNJ says:
Well, as a utilitarian I do not think rape is necessarily wrong, though I daresay it is the great majority of cases. One favourite hypothetical of anti-utilitarians is a rape where the rapist gains more pleasure than the victim loses. Subject to certain caveats regarding the effect on other people’s happiness and questions of distributive justice (I, unlike classical utilitarians, regard the distribution as well as the aggregation of happiness as morally significant), I accept that if raping or not raping the victim were the only two possible courses of action raping the victim would not only be morally permissable but morally required.
March 1, 2010, 9:35 pmRichard Aubrey says:
I am a banned commenter, but I come back and post because I don’t care about rules: I just do whatever I want.
March 1, 2010, 9:43 pmAnderson says:
Well, as a utilitarian I do not think rape is necessarily wrong, though I daresay it is the great majority of cases.
You’re putting us on, right?
… Prof. Kerr’s post confirms my correctness in avoiding the original thread.
My own take is that Yoo’s duty was to provide legal counsel. If waterboarding appeared more likely than not to be legal, he should have said that, while not downplaying the chance of being wrong; he should then have appended a discussion of policy and moral grounds for not doing it.
Or, if that was too little, he could have resigned rather than write the memo.
But I don’t accept that a lawyer EVER has the right to provide a client deliberately flawed legal advice in order to achieve the lawyer’s moral goal. When you’re someone’s lawyer, it stops being about you and starts being about your client; you owe him or her a duty to put yourself second. If you can’t fulfill that duty – writing a torture memo, defending a Klan member or a polluting corporation — then stop being their lawyer.
March 1, 2010, 9:48 pmMark Field says:
The internet is indeed a big place.
I assume, though, that even if you thought it was moral in a given case, you would still advise a client that it was illegal.
March 1, 2010, 9:52 pmCGordon says:
I have three responses:
1. Your point is well understood. However, there is a real difference in approach in cases where legal sanctions are insufficient to deter the client.
2. It helps if one’s client is the fox guarding the hen house (a variation of response 1).
3. I intend to litigate.
March 1, 2010, 9:52 pmMark Field says:
In that thread, someone asked for the cite to a case or cases in which attorneys were prosecuted for criminally advising violations of the tax code. I thought you once cited a case to that effect. If so, can you supply it? Thanks.
March 1, 2010, 9:54 pmMick says:
Legal questions are moral questions, one step removed.
March 1, 2010, 9:58 pmMichelle Dulak Thomson says:
S,
What don’t you understand about Tim referring to a United State[’]s Treaty Against Torture? (hint: subject matter, atrocities)
Only that he didn’t actually refer to a particular treaty, but just said that the conduct in question was so “atrocious” that it was prohibited by treaty?
March 1, 2010, 9:58 pmMichelle Dulak Thomson says:
Tim,
No. I am pointing out that it is so atrocious that we thought prohibiting it required an international response, and recognized that for obvious reasons, a domestic ban on torture would be insufficient.
Yes, I understood you; I just thought the way you formulated the statement was a little odd. There are many, many things that would be treaty violations, but not atrocities.
But, to be devil’s advocate for a minute, what good has an international ban on torture done? It hasn’t eradicated torture, obviously. At best, it’s given the press a means of attack on those who torture. At worst, it’s given the worst torturers a cover: Did they not sign the treaty abjuring any such thing? Are you calling them liars to their face? Have you the evidence to prove your scurrilous accusations?
March 1, 2010, 10:08 pmPerseus says:
That is one of the reasons for distinguishing between unlawful enemy combatant and POW. If you don’t abide by the rules of war, you (as an unlawful enemy combatant) may be treated worse–much worse–than a POW.
March 1, 2010, 10:11 pmOrin Kerr says:
Legal questions are moral questions, one step removed.
Never studied the Electronic Communications Privacy Act, I assume?
March 1, 2010, 10:16 pmKen Arromdee says:
These enemies will pretty much do the worst possible things to our servicemembers whether we torture them or not.
March 1, 2010, 10:20 pmjukeboxgrad says:
A certain popular Republican seemed to think it was a good idea at the time:
See also here.
March 1, 2010, 10:22 pmHoward Gilbert says:
Let me put on a Yoo hat for a moment and ask everyone a question. For the last 60 years the President of the US has had the power to order a nuclear strike in response to a foreign attack. Every modern President is constantly in touch with US strategic forces prepared at a moment’s notice to kill hundreds of millions or billions of civilian non-combatants in response to an enemy attack on our country.
However, I am unaware of any legal foundation for the principle of nuclear retaliation. It seems to clearly violate all the basic principles of international law. I see no way it could possibly be legally justified. It would clearly be a billion times worse than anything Bush did to all the detainees or anything that Yoo authorized.
So, how do we explain the disconnect between the clear reality that everyone knows and everyone has been living with and the clear letter of international law? We exist today because we are ready and always have been ready to commit the greatest atrocity in history (or at least what would be second worst after whatever attack is made on us).
Until someone is able to close this gap, International Law appears to be a convenient fiction used by the winners to punish the losers, used ineffectively by the weak as leverage against the strong (example: China’s attempts to constrain the colonial powers), and used by Law School professors to publish papers. Discussing the morality of waterboarding in a country prepared to murder a billion innocent women and children (in retaliation for an attack on us) makes no sense at all.
So Yoo believes that there are more powers inherent in the President than just the authority to, on his own, decide to kill a third of the world’s population. It is self evident that that position must be somehow right. Exactly where and how to draw the line is certainly up for discussion, but Eurotrash theories of IHL aren’t even a rational place to start.
If you believe that we can ignore what every President has had to live with 24×7 for 60 years simply because it hasn’t happened yet, then maybe you can create an imaginary world where your imaginary laws hold true. However, until those laws accommodate a scale of murder that makes every previous genocide look good by comparison, then you are just building a fictional narrative. Why should Yoo adopt your view of imaginary law when he has a perfectly good imagination of his own.
March 1, 2010, 10:23 pmjukeboxgrad says:
James Joyner is a conservative, and he has served. He can explain to you how torture endangers our soldiers.
March 1, 2010, 10:27 pmJohn says:
58% Favor Waterboarding of Plane Terrorist To Get Information. What do you suppose the numbers would have been in October 2001?
I only bring this up because we are nearly a decade removed from the event and the academic debate going on here seems to miss that point.
The morality question wasn’t the interrogation techniques, it was about how to save American civilian lives after 3,000 had been killed by jihadists. These enhanced interrogation techniques either work or they don’t. CIA directors said they worked. If they don’t work the debate is moot, they shouldn’t be used at all.
For arguments sake, let’s say they worked. What number of saved lives would justify making KSM stand for long periods of time or have water poured onto a cloth over his face? Is it morally wrong to cause temporary discomfort to a mass murderer to save innocent human life? Is following the letter of the law always a moral good? Would Congress ever write a clear law that took a stand one way or the other?
You tell me.
BTW, my answers are no, no and NO.
March 1, 2010, 10:27 pmBlue says:
You mean the technique used at SERE?
March 1, 2010, 10:31 pmjukeboxgrad says:
longwalker:
Wrong. Also see here. Reading the prior threads on this subject might be helpful.
When the Japanese used a procedure essentially indistinguishable from ours, we called it torture and prosecuted them. I guess we owe them an apology.
============
blue:
I guess you’re not familiar with what the CIA IG said about the comparison you’re making.
March 1, 2010, 10:35 pmJohn Moore says:
I find it interesting that those against water-boarding often draw a very sharp distinction: water-boarding is immoral, torture, etc; other interrogation techniques are not.
This same sharp line is somehow not characterized as a utilitarian distinction, but rather as an a priori fact, as if everyone but an idiot can see that water-boarding is immoral, evil, etc, while other actions (solitary confinement, for example) are not.
That sharp line may be because this is a law blog, but I think it is more a sign of the success of anti-water-boarding propaganda. Water-boarding has become an iconic symbol of the evil of the Bush administration.
The same folks usually mis-characterize water-boarding as “simulated drowning.” A more accurate description would be a treatment which triggers the gag reflex. Gagging is extremely unpleasant, but my dentist is not torturing me.
I have also seen the argument (today) that water-boarding places the subject in immediate fear of death, and thus is unlike SERE training. Nonsense! The interrogatee (unlike, say, a victim of a dictatorship’s secret police) knows full well that the purpose is to elicit information, and that if he is killed, the interrogator has failed. Likewise, just like the SERE trainee, the interrogatee knows that he can end the water-boarding at any time – by providing information.
So I conclude that those who view water-boarding as torture when practiced against probable terrorists, but not SERE trainees, are hypocrites.
March 1, 2010, 10:35 pmMark Field says:
IIRC, there has been at least one conviction under the Act.
March 1, 2010, 10:37 pmbailey says:
50-46 on a generic questions 8 years after 9/11-and you think those numbers show an even divide. Try something specific-should we have waterboarded the mastermind of the 9/11 attack to find out about and prevent further attacks. My guess is 65-70% pro if the crotch bomber his 58%. As to John’s question, the lefties here will never answer it. Their “morality” is always cost free. Of course, as Bob from Ohio pointed out, some of them are pretty much explicitly pro-terror.
March 1, 2010, 10:40 pmCalifornio says:
This discussion is futile. The arguments about “well, if someone could show that torture actually gets good intelligence info..” is like the death penalty opponent saying they have yet to see how the death penalty deters crime. Here’s a newsflash – that person will never accept any data or “proof” that refutes their quasi-religious belief. Period. Waterboarding as done by the US recently is not the same waterboarding as done by the Japanese in WWII. (compare “mistreatment” of prisoners in Iraq with “mistreatment” of POWs by the Japanese in WWII, one is traumatized, the latter is missing his head.)
March 1, 2010, 10:44 pmbailey says:
As to soldiers, if they know best and know that the anti-”torture” position helps them (and are honorable to boot), why do they so consistently vote for those bad old pro-torture Republicans. How can they be so short sighted.
March 1, 2010, 10:45 pmjukeboxgrad says:
moore:
Then why did we call it torture when the Japanese did it (link, link)?
I guess you’re not familiar with what the CIA IG said about the comparison you’re making.
============
californio:
The claim remains false, no matter how many people repeat it (always without lifting a finger to support the assertion with proof).
March 1, 2010, 10:49 pmorca says:
General Petraeus said the C.I.A.’s torture program caused far more trouble than it was worth.
March 1, 2010, 10:50 pmjukeboxgrad says:
bailey:
Actually, they don’t “so consistently vote” R. The military vote has been turning away from the GOP (link, link). Which tends to demonstrate the opposite of what you’re claiming.
March 1, 2010, 10:52 pmDangerMouse says:
Come on… this was a conclusion anyone could figure out. If anything, libs cannot make the distinction between legal and moral. It is IMPOSSIBLE for them, because their whole being is defined by a smug sense of knowing better than you. Every law that they disagree with is unjust, illegal, overruled by a higher law or an international treaty, etc.
Simple test: Abortion is legal. I have no problem saying this even though I don’t want it to be legal.
But gay marriage? Ask someone who thinks gay marriage should be permitted, and 9 times out of 10, they’ll claim it’s ALREADY permitted for the entire country, as if it was the first thing on Madison’s mind when he wrote the Constitution, or something. Libs eat this crap up. And then they get a judge to say that, lo and behold, it WAS the first thing on Madison’s mind when he wrote the Constitution. In fact, that’s kinda how they made abortion legal. It was illegal in many places, until it wasn’t.
So libs are all about moral arguments, because they are incapable of a detached analysis of the law. Their righteous outrage infuses every argument they make. Nothing can be trivial.
Vision of the Annointed, and all that. Orin, this was a foreordained conclusion. And this thread and the other are proof, to be sure. But you hardly need listen to these comboxes to know this. It’s everywhere.
March 1, 2010, 10:54 pmJohn says:
General Petraeus is a good soldier but I reject your comment out of hand. There was no “GITMO” on 9/11/01. Nor was there a GITMO prior to Khobar Towers, the USS Cole or Leon Klinghoffer for that matter. I could go on but what’s the point?
March 1, 2010, 10:55 pmcelticdragonchick says:
Is that supposed to be a joke?
What in the hell was the conceivable military target in Dresden that was worth incinerating the entire civilian population for?
No military historian I have read seems to know, beyond speculation that we were trying to scare the Soviets. Try reading A.C Graylings “Among The Dead Cities” for an examination of the moral legacy of unrestricted mass bombings of civilian population centers.
March 1, 2010, 10:59 pmjukeboxgrad says:
john:
Then why doesn’t the GOP advocate the repeal of the UN Convention on Torture, which Reagan ratified? If the GOP really thinks so many Americans are so pro-torture, then it should embrace the pro-torture position more directly and honestly.
And when are we going to start waterboarding criminals? Surely they are dangerous, and we could elicit life-saving information, right?
Anyway, statements by a GOP pollster should be taken with a grain of salt. Especially because public opinion on this subject has been greatly influenced by a long series of falsehoods they have been told about waterboarding. Falsehoods that keep popping up over and over again in these threads.
March 1, 2010, 11:04 pmcelticdragonchick says:
I’m sure that Manadel al-Jamadi and the other prisoners who died of abuse at Abu Ghraib will appreciate that distinction.
If you wish to claim that we are better than the Japanese because we didn’t have beheading contests while conducting the equivalent of the Rape of Nanking, then I would venture that your standards need improvement.
March 1, 2010, 11:06 pmjukeboxgrad says:
john:
I guess you also reject this comment:
You were there, so you know better, right?
March 1, 2010, 11:09 pmorca says:
Because our current leading soldier speaking out against torture undermines the phony tough guy narrative supporting torture?
March 1, 2010, 11:10 pmDangerMouse says:
Another thing, Orin. You should know that most, if not all arguments made by libs these days, are really arguments about morality and not about what works, or what’s best for all given limited resources.
A company doesn’t fire people because it needs to preserve resources, it’s merely a FAT CAT ROBBER BARRON.
A person doesn’t want to pay less taxes because he wants to spend money on his family, he’s just a GREEDY SCOUNDREL.
A man merely wants a fair shake and doesn’t want to be treated any differently than a woman or minority, but he’s just a RACIST, SEXIST PIG.
Being a lib means never having to say sorry for all of your mean insults! That’s the whole fun! You can be as nasty and despicable as you like, and claim it’s all for the greater good or to serve “the people.”
So John Yoo didn’t write a legal opinion that was poor, he’s a TORTURE MONGER WHO WANTS TO CRUSH PEOPLE’S NAUGHTY PARTS!!!!!!!111!!eleven!
It’s really impossible to have a conversation with people who think like that. Because to talk to them, you need to get them to give up on their moral code. And since their moral code infuses almost everything about them, it’s impossible. I’ll admit that on some issues, I’m not going to give up my moral code. I’m not going to give up on abortion, for instance. But I can acknowledge the other side (even as I try to get away with calling abortionists MURDER, etc). The problem with libs is that their morality infects everything they touch. It’s like the lightbulb joke: how many feminists does it take to change a lightbulb? THAT’S NOT FUNNY. That, in a nutshell, is what it’s like to talk to a lib.
March 1, 2010, 11:16 pmJohn says:
I suspect I ETS’d from the Army while you were still crapping your pants so I can’t speak to Afghanistan and Iraq through personal experience.
Now would you care to address the terrorism prior to jihadist confinement at GITMO or not? I really don’t care one way or the other since your failure to address it speaks volumes.
As for the GOP I don’t speak for them.
As for Rasmussen I’ll tell you the same thing that I told my fellow travelers when he was the first to show Obama with a strong lead early on. Rasmussen is a good technician. Such is life.
March 1, 2010, 11:16 pmcelticdragonchick says:
I see the scary libruls have dangermouse hyperventilating again.
March 1, 2010, 11:18 pmcelticdragonchick says:
I’m sure that Manadel al-Jamadi and the other prisoners who died of abuse at Abu Ghraib will appreciate that distinction.
If you wish to claim that we are better than the Japanese because we didn’t have beheading contests while conducting the equivalent of the Rape of Nanking, then I would venture that your standards need improvement.
March 1, 2010, 11:19 pmrpt says:
A periodic visit to Marcy Wheeler’s ongoing analysis of the actual OPR report and documents is essential. Have any of the torture-defenders here actually read any of it? Are there any R/cons who are actually reading and analyzing the documents?
March 1, 2010, 11:19 pmOrenWithAnE says:
This is spot-on — the ethical determination rests with the President, not the OLC.
German civilians are a perfectly good military target.
March 1, 2010, 11:23 pmJohn says:
Phony tough guy? LOL, very funny. Is that an original thought?
Any idea why they were mad at us before “GITMO” and enhanced interrogation?
Any clues why they threw an old man in a wheelchair off a cruise ship because he was Jewish?
Khobar Towers?
USS Cole?
Embassies?
Olympics?
Airliners?
Night Clubs?
I guess they just anticipated GITMO and will be much happier when we move their jihadist brothers to another prison in a town near you.
March 1, 2010, 11:24 pmRoger Zimmerman says:
Not sure if it was porterhouse on the previous thread who argued this, but, surely, the actor’s (honest) intent is of some importance in determining both the legality and morality of an action. In the examples you cite, the object was not to extract information which would save the lives of innocents (as I claim is true in the present case), but instead to either inflict damage for the sake of inflicting damage, to gain information which would aid in the prosecution of a war in which the actor’s side was the aggressor, and/or to elicit a confession.
I a
March 1, 2010, 11:25 pmSenatorX says:
A side note but I have sometimes wondered about Orin’s morality. Granted he posts here so that says something but he seems to work hard at being… neutral? technical? I suppose this might be an attractive quality among lawyers. Still with other conspirators their morality is much closer to the surface but with Orin he keeps it close to the vest (unless I am missing some obvious posts which point to this subject, which is definately possible).
March 1, 2010, 11:25 pmbyomtov says:
Orin,
for a lot of Yoo’s critics, whether Yoo followed the law or not is mostly beside the point.
And Yoo’s defenders? I think Dilan Esper is exactly right that for most of them, whether Yoo followed the law or not is completely beside the point. They are happy to torture prisoners, and don’t much care what the law says.
But I don’t think it’s fair to criticize Yoo’s attackers on these grounds. You wanted a comparison. Lots of Yoo’s critics agree that reverse Yoo (RY) was unethical in fudging his opinion. But they claim (and I certainly agree) that Yoo was worse than RY because the consequences of his fudging were so much worse. So “following the law” was not irrelevant, but it was far from the only factor in comparing the two situations.
March 1, 2010, 11:33 pmorca says:
I think we all know the answer to that, but here is what General Patraeus said about the right’s urge to torture helpless prisoners:
I have always been on the record, in fact, since 2003, with the concept of living our values. And I think that whenever we’ve perhaps taken expedient measures, they’ve turned around and bitten us in the backside. We decided early on, in the 101st airborne division, we just said, we decided to obey the Geneva Conventions…
In the cases where that is not true [where torture takes place or international human rights groups aren't granted access to detention sites] we end up paying a price for it, ultimately,” he added. “Abu Ghraib and other situations like that are non biodegradable. They don’t go away. The enemy continues to beat you with them like a stick…. Beyond that, frankly, we have found that the use of interrogation methods in the army field manual that was given the force of law by Congress, that that works.”
March 1, 2010, 11:38 pmMark Field says:
Present tense?
March 1, 2010, 11:38 pmAnderson says:
Mark, I can’t remember where I saw that about prosecuting for tax opinions — tried to find it, but I’m having a bad google day, or am so full of Medicare-reimbursement law (oral arg this week) that I can’t think straight.
March 1, 2010, 11:41 pmRandy says:
JOhn Moore: “I have also seen the argument (today) that water-boarding places the subject in immediate fear of death, and thus is unlike SERE training. Nonsense!”
Mindszenty’s treatment was in many respects identical to American enhanced interrogation techniques: hooding, humiliation (he was forced to wear a clown suit), drugging, sleep deprivation, etc. Pius XII was so appalled by Mindszenty’s torture that he wrote an apostolic letter – Acerrimo Moerore – condemning it. Pius went on to excommunicate those involved in the torture. Mindszenty was beatified by John Paul and is being considered for canonization by Benedict.
Interestingly for those who support torture — George Bush repeatedly said that we don’t torture. So did he lie to you? But if it’s true that we didn’t torture, then he must be one of the weepy heart liberals who didn’t want to ‘inconvenience’ our enemies. Surely, then, he really didn’t prosecute the war on terror to his utmost?
March 1, 2010, 11:45 pmRoger Zimmerman says:
Not sure if it was porterhouse on the previous thread who argued this, but, surely, the actor’s (honest) intent is of some importance in determining both the legality and morality of an action. In the examples you cite, the object was not to extract information which would save the lives of innocents (as I claim is true in the present case), but instead to either inflict damage for the sake of inflicting damage, to gain information which would aid in the prosecution of a war in which the actor’s side was the aggressor, and/or to elicit a confession.
I am actually sympathetic to those that argue that there is danger in allowing agents of the U.S. government to use their judgment in applying techniques which may border on (or cross the line into) torture. I worry about actually innocent victims, about dehumanization of our soldiers/agents, about blowback, about wasted time and about eliciting bad information. I don’t think any of those are likely – since I basically trust our soldiers and agents to act sensibly and morally in support of their oath to protect and defend the constitution and the people of the U.S. But, I understand there are tradeoffs and that those outcomes are possible, and I therefore would like to see some bright lawyers and constitutional scholars propose ways to lessen the likelihood of the bad outcomes.
But, I must admit I have my “screw them” moments when I see the lack of appreciation for these tradeoffs from those that have the hardened “we should never torture” position. The quoted section above is a great example of this – it demonstrates an unwillingness to make any kind of moral distinction. The intent of the actor would be one of the first things that jumps into a mind that is at least somewhat open. I conclude that this is not a person that is open to rational persuasion.
March 1, 2010, 11:45 pmjukeboxgrad says:
john:
That’s what I thought. Matthew Alexander was there. You weren’t. What do you know that he doesn’t?
I don’t understand your question. Yes, there was “terrorism prior to jihadist confinement at GITMO.” And our abuses there and elsewhere made the problem worse. How does one truth contradict the other truth? It doesn’t.
Your ‘logic’ is like saying that people who don’t smoke die anyway, so smoking obviously doesn’t make people die.
=============
roger:
How do you know the Japanese weren’t trying to save Japanese lives?
How do you know we weren’t trying to elicit false confessions? False confessions, produced under torture, were indeed used to sell the war.
March 1, 2010, 11:46 pmLawGuy5000 says:
Let us not forget, that while Yoo’s definition of torture is legally indefensible, his justification of torture as an inherent power of the Commander-in-Chief is truly beyond the pale. Check out his March 2003 memo here. Are there any serious legal scholars who agree with this interpretation?
March 1, 2010, 11:48 pmSteve P. says:
Well, I’m gratified to see that I guessed correctly.
And did John Moore really compare waterboarding to gagging at the dentist’s? This always makes me feel a need to preserve these threads, so when my kids grow up I can point to them and say, yes, people really believed this.
March 1, 2010, 11:51 pmAnderson says:
This always makes me feel a need to preserve these threads, so when my kids grow up I can point to them and say, yes, people really believed this.
Do they really? I have my doubts. Andrew McCarthy wrote the other day that today’s Democrats are controlled by the radical Left. He didn’t believe that. It makes me wonder who can be believed and who’s just b.s.’ing.
March 1, 2010, 11:59 pmDavid Sucher says:
Maybe someone far away from the situation can help clarify.
It is not at all a matter of morality but of plain old professional standards. He was not a good lawyer — he didn’t tell his client what the client wanted to do but was clearly not according to the laws.
Yoo is wrong because his use of the law would in civil or private terms be considered such poor lawyering as to be disbarred — something like he repeatedly missed his client’s filings or explicitly advised a client to know something — using an accountant’s trust funds to go buy a trip to Spain — is so outrageously obviously clearly not the law that he must be sanctioned.
As an outside observer my own take is that Yoo was an incompetent lawyer — not that he was immoral.
I could be wrong on many counts but that is what from a layman comes through the haze is that he did not advise his client. He didn’t public laws. He broke the standards of a profession.
March 2, 2010, 12:03 amporterhouse says:
I was not that person, but that is exactly the distinction I was attempting to make.
If one is using waterboarding as an interogation tactic in order to gather intelligence from high level enemy combatants, then that is NOT torture…at least according to Webster’s dictionary. Now, that does not mean the law must use the same definition of “torture” as Webster’s. That also doesn’t mean we can’t prohibit the use of the interrogation tactic known as waterboarding. Torture should obviously be illegal, and serves no purpose in a representative democracy based on the rule of law, but one must distinguish between interrogation tactics and actual torture.
Once again, I think one obvious limitation on the interrogation tactics that we allow our intelligence community to use is–will the tactic detract from our larger goal of winning the war. So, I could be for waterboarding in the abstract, but against the tactic if I feel it will give the terrorists a rallying cry that will create more danger for our troops…that does not make the tactic immoral, just counterproductive.
Once again, gathering intelligence in a just war is moral, and employing waterboarding (if it is legal) to gather intelligence is moral…even if waterboarding can amount to torture in a different situation–and torture is immoral.
March 2, 2010, 12:07 am1040 says:
Thread winner! :)
March 2, 2010, 12:08 amrpt says:
If you run into an impasse at the argument blame it on Jim (no medicare reimbursement for you!) Bunning.
March 2, 2010, 12:21 amDan Simon says:
To a lot of people this isn’t a legal issue, even if it’s framed in legal terms. Rather, it’s a moral question presented as a legal question. And it’s a moral question on which public opinion appears almost exactly evenly divided: According to a 2009 poll, 50% of the public approved of how the Bush Administration interrogated terrorist suspects and 46% disappproved. With each side resting its views on one moral conception and denying the legitimacy of the other side’s view, we’re destined to run in circles presenting competing moral arguments as legal arguments.
There’s a very important word that’s conspicuously missing from this discussion. That word is, “political”.
In most democracies, moral issues on which there’s sharp disagreement among the public are considered political issues, and are dealt with through the political process. America, however, has a political culture with a pronounced legalistic strain that has strong anti-democratic, even authoritarian overtones. The result is a long history of treating such issues as legal matters: viz., Brown v. Board, Loving v. Virginia, Roe v. Wade.
One of the many negative consequences of this legalistic approach to resolving divisive issues is that the cold logic of the courtroom is less likely to generate the kinds of messy compromises that democracies typically resort to when an issue sharply divides the polity. And in an all-or-nothing setting, neither side has much incentive to adopt a moderate, conciliatory stance, as opposed to amassing arguments in favor of its own side’s absolute legal correctness.
The case at hand is a perfect example of this dynamic in action. Given that the public is sharply and nearly evenly divided on the issue, one would expect politically-minded people to be casting about for a broad, centrist position that is not inevitably poised on the knife-edge of minority status. But in America, politically-minded people have an alternative: by shifting the battle to legal terrain, they can avoid the problem of half the population disagreeing with them, and retain a chance of winning an absolute victory.
Such victories are, of course, pyrrhic, since their completeness is matched by the completeness of each defeat. But as long as American politics is suffused with anti-democratic legalism, moral disputes will continue to be far more acrimonious and polarized than in other democracies.
March 2, 2010, 12:38 amjukeboxgrad says:
anderson:
I often have the feeling that McCarthy couldn’t possibly believe what he writes. Take a look at this:
McCarthy is pretending to not understand that USC 2340 does not apply to SERE, for multiple reasons. It only applies to captives (our troops are not captives), and it only applies outside the US (our SERE program is in the US). There might be some other reasons, but those are more than sufficient.
I don’t understand how anyone takes him seriously.
March 2, 2010, 12:40 amShelbyC says:
OK fine. French civilians.
March 2, 2010, 12:44 amorca says:
I don’t think they do:
http://www.sadlyno.com/archives/14327.html
March 2, 2010, 1:01 amreadery says:
Moral questions are legislative questions. And a legislature can make them legal questions.
March 2, 2010, 1:13 amMnZ says:
It seems like anti-Yoo might create some moral issues too. Suppose for example that anti-Yoo writes a memo that wrongly states that Interrogation Method X is torture. Couldn’t the existence of the incorrect memo be a tool to use against the US and its personnel? In fact, couldn’t it indirectly lead to deaths and badwill internationally (i.e., when the US ignores the incorrectly written memo)?
It sounds pretty immoral to me…but I guess being of a (ehem) certain political persuasion means never having to say you are sorry.
March 2, 2010, 1:31 amStormy Dragon says:
Only Yoo’s opponents who are consequentialists. For those of us who are deontologists, whether or not it actually works is irrelevant.
March 2, 2010, 2:40 amjukeboxgrad says:
I agree with what Stormy said, but there’s also lots of evidence that waterboarding and other forms of torture don’t work. See here, here, here, here, here and here.
March 2, 2010, 2:53 amleo marvin says:
I agree it would be wrong, though I don’t know of any law it would break. Anyway, I’m sure you’d agree that an otherwise innocent person who refused to divulge what s/he accidentally learned about a terrorist plot would be less culpable than a terrorist in possession of the same information. And as the unlikely ticking time bomb hypothetical tests the limits of moral opposition to torture, this one tests the moral justifications claimed by those who advocate what I’ll call “enhanced interrogation” (just to put the nomenclature controversy aside for now).
If it’s OK to use enhanced interrogation on a presumed terrorist detainee believed to possess high-value intelligence, shouldn’t it also be OK to use on a non-terrorist, non-criminal, non-combatant who happens to come into possession of the same intelligence, and won’t divulge it? The justification typically offered for enhanced interrogation is that it saves lives, and that outweighs the objections to its extreme nature. Isn’t that calculus identical whether or not the person interrogated is an accused terrorist? And if the calculus isn’t identical, if it’s OK to waterboard a suspected terrorist, but not a random citizen with the same information, doesn’t that suggest at least part of the justification for using it is punitive? In which case doesn’t the mere presumption of guilt unconscionably disconnect the punishment from due process?
March 2, 2010, 3:08 amThe record says:
Yoo’s supporters are factually wrong. Only three are terrorists, and more than ten thousand are American soldiers, waterboarded as part of the training that the DOD calls Survival, Evasion, Resistance, Escape.
March 2, 2010, 3:45 amGilbert says:
But torture has nothing to do with the evilness of the subject. Notice that the justifications for torture (it will save more lives than it will injure) DO NOT necessarily require that the subject be guilty. Notice also that torture in this instance occurred without adjudication of guilt. It’s not a coincidence — guilt is irrelevant to the justification.
For example, if it were a perfectly innocent person (think journalist) who stumbled on information regarding when and where the next attack would occur, and refused to divulge it, the justifications for torture would apply equally to permit his torture if he refused to tell. That is, obtaining the information by torture would do more good than harm.
The Yoo supporters are not on his side because they are the ones that believe terrorists are bad people–we can all agree on that. What we disagree about are (a) the empirical utility of torture –whether or not it actually yields actionable intelligence–and (b) the moral calculation regarding (assuming you get actionable intelligence) whetehr the ends justify the means.
March 2, 2010, 7:26 ampublic_defender says:
A lawyer can’t lie to his client. If your client’s goals are unethical but legal, you can 1) try to persuade your client to change; 2) honestly help the client reach those goals; or 3) resign.
Yale Law Professor Stephen Carter, writing long before anyone had heard of Yoo, gave the example of counseling an openly racist company when racial discrimination was generally legal, except on federal contracts. He asked what a lawyer should do when asked to help the racist client maximize the racial discrimination of his company.
We aren’t called “counselors” for nothing. Part of our job is sometimes saying, “That’s just wrong, and I’m not going to help you do it.”
I’ve given the example before, but I once had a client who had pleaded guilty to sexual assault and served his time. He asked about a potential loophole in the stay away order. After a brief glance at the order, the claim looked at least plausible, but I would have to look at it further to be sure. But I just told him I wasn’t sure whether he was right about the order, but that he should just stay away from her. Should I have looked at the paperwork, researched the question, and told him it was OK to see her if there really was a loophole? Maybe that would have been the Yoo approach, but it was not mine.
As to Professor Kerr’s hypothetical, I would say that the “Reverse Yoo” would should have counseled that they not tortutre; and if that failed, resign. You may not be able to stop evil behavior, but you don’t have to help. Before resigning, you have to ask your self whether this is really just a “personal preference,” as Professor Kerr puts it, or something bigger. Having to face the personal consequences of resignation helps put that question into better perspective.
Also, still within Kerr’s hypothetical, a smart criminal lawyer should generally advise the client to stay a good distance away from the line between criminal and non-criminal behavior, especially when the other side of the line is “war crime.”
The Yoo/Bybee Pedophile Hypothetical
I’d like to re-propose a counter-hypothetical for those who think Yoo was right to advise his client how to come up right against the line between harsh interrogation technique and torture. What should a lawyer say to a pedophile who walks into the office of a criminal defense lawyer with this question? “I like to take pictures of and touch kids. How far can my photos go and how far can I go with the touching without violating the law?” Yoo and Bybee would apparently think it was their duty to help the pedophile legally take pictures of and touch kids.
March 2, 2010, 7:37 amjukeboxgrad says:
record:
I guess you’re not familiar with what the CIA IG said about the comparison you’re making.
And aside from not reading the torture memos, I guess you also haven’t read the thread, since you’re just one more in a long line of people making the same phony comparison, even after it’s been shown to be phony.
March 2, 2010, 8:21 amAnderson says:
a perfectly innocent person (think journalist) who stumbled on information regarding when and where the next attack would occur, and refused to divulge it
I must confess, it would be an open question in my mind whether that refusal was itself an evil act. Not that it would merit torture — just sayin’.
March 2, 2010, 9:03 amBobC says:
[not lawyer] I would do everything in my power so that he can accomplish his goals. Frankly, it is easy, as the news covered a website where a guy took pictures of children in parks and it was all perfectly legal. I do not feel the distribution of knowledge can be a moral evil.
March 2, 2010, 9:30 amjukeboxgrad says:
Your pedophile client would like to sneak into a kid’s bedroom, and you know where under the porch the parents hide the key. So telling your client where to find the key is just “the distribution of knowledge,” right?
March 2, 2010, 9:38 amBobC says:
I would if grabbing the key and molesting the boy was not an illegal act. Heck, if it was legal to rob someone using a key left outside then I am in the wrong profession. This is a silly train of questions. It is not a lawyer’s job to remake the world in their image through their clients. Punishing/stopping people who are not criminals but violate your code makes you a vigilante.
March 2, 2010, 9:58 amDJR says:
The original question was “How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?”
Asking about whether people are “upset” or if Yoo is “blameworthy” doesn’t seem to ask for a legal analysis at all, actually.
March 2, 2010, 10:21 amBob White says:
jukeboxgrad:
If the CIA waterboarding technique had been the same as the SERE waterboarding technique, would that have been permissible, or would it still be illegal torture?
Re lawyer prosecution for tax fraud:
March 2, 2010, 10:21 amI believe Jenkins & Gilchrist attorneys were criminally prosecuted for their tax shelter advice, and Refco’s outside counsel, a partner at Mayer Brown, is currently in jail, ostensibly for fraud but seemingly more for giving bad legal advice and/or not being up enough on his client’s affairs and/or not disclosing information he may or may not have known.
Mark Field says:
No problem. If you come across it, let me know and I’ll bookmark it so we have it in the future.
You’re going to have to define more closely what you mean by “the same”. SERE is undertaken by one’s fellow soldiers. The soldier is told it’s a training exercise. He’s not asked any questions, nor is the process repeated against his will. He can back out at any time. Etc.
Agreed.
March 2, 2010, 10:37 amjukeboxgrad says:
bobc:
I think you’re missing the point. Not everything that is legal is moral. You said “I do not feel the distribution of knowledge can be a moral evil.” If you give someone knowledge knowing that they will use this knowledge to commit an immoral act, what you did is not “a moral evil?” Really?
================
bob white:
Here’s one of the important characteristics of the SERE waterboarding technique: the subject is given a safe word, which they can use to stop the procedure at any moment.
Are you asking me if I would call that torture, if the CIA did it? No, I wouldn’t. Because if the subject can end the procedure at any moment, simply by issuing a specific command that has been stipulated in advance, that pretty much violates every legal and common-sense definition of the word torture.
And this is aside from some other important limitations: there is a maximum of 20 seconds, and no one can be waterboarded more than twice. There are also very specific limitations with regard to how much water is used and how it is poured.
I answered your question. Now answer mine. If I keep you standing shackled and sleepless for 180 hours is that not a violation of USC 2340? And various other laws and treaties? Because that’s what we did.
March 2, 2010, 10:39 amBlue says:
Look, the logic is very simple.
1. Our soldiers undergo waterboarding during SERE.
2. This technique is not considered torture.
3. Therefore there is nothing inherent in the technique that makes it torture.
The only logical case you can make is that the line between torture and not-torture exists somehow in implementation differences between the cases. Thus waterboarding, in a logically-consistent formulation of your view, can be either torture OR not-torture.
And with that, the entire universalist aspect of your position falls to pieces.
March 2, 2010, 11:15 amJoe says:
for a lot of Yoo’s critics, whether Yoo followed the law or not is mostly beside the point.
Well, this isn’t true for me, nor for most of the stuff I read supporting investigating or even charging him. Repeatedly, such discussions focused on what law he broke, what legal ethical standards (to the degree these are “laws”) he was required to follow and so forth. Many also find him morally distasteful, surely, but his responsibility as a lawyer tended in my experience to be a major focus of the discussion. This — as noted by some above — is true of the last thread.
To the harshest Yoo critics, the moral evil is waterboarding. Waterboarding is evil, so stopping it is a moral good and facilitating it is a moral evil.
Said critics tend not to think many “evil” things are legal in this country. So, as with some above, I’m not sure why this line matters that much.
But to Yoo’s strongest supporters, the moral evil is terrorism.
Of course, his strongest opponents also tend to think terrorism is a moral evil. They think waterboarding is not helpful in stopping it at the end of the day. Thus, of those against Yoo who focus on terrorism as “the” evil, Yoo can in fact be that much worse. So, you again phrase things somewhat badly — you have to focus on supporters who think what Yoo did helped combat terrorism.
Sitting by and letting innocent Americans die from attacks when you could stop them is a moral evil, while stopping the attacks is a moral good.
Both sides think this, right? Again, your phrasing is poor in some ways, and it really doesn’t help the conversation by doing so. Those against Yoo are not just “sitting by” but doing various things, including not using torture that furthers the danger as suggested by various experts.
Further, each side denies the legitimacy of the other by making factual assumptions that undercut the other’s premises.
This is typical of most legal debates.
To Yoo’s opponents, it is gospel that waterboarding doesn’t work, so waterboarding does not really further a moral good.
To me, bottom line, waterboarding is illegal. EVEN IF torture worked, it is illegal. If rape “worked,” it would be illegal. So, some Yoo opponents might actually be somewhat agnostic (or admit sometimes it works) about torture, and still think he twisted the law.
To Yoo’s supporters, it is gospel that every person waterboarded is an evil terrorist, so waterboarding does not really inflict a moral wrong.
This isn’t necessary either. Yoo supporters just have to believe that on the whole his reasoning is acceptable and that overall the techniques are necessary to fight terrorism. They can admit that no one’s perfect but that such is war — in war, some innocents are hurt. Overall, however, the ultimate good is followed & here most are terrorists or necessary to capture them.
I do fear these debates will continue … so much talking past each other, even by those who say they really aren’t looking at things closely, but are just trying to understand things better. Their analysis doesn’t make me feel too much better either, especially since they too will influence the course of affairs as members of the legal community or voting public as well.
March 2, 2010, 11:17 amBob White says:
jukeboxgrad:
Thanks for answering. One point of clarification-if the CIA, before waterboarding, had told Prisoner X he would be waterboarded, but could stop it at any time by indicating his willingness to provide requested information, does that make it not torture? Alternatively, is waterboarding at Gitmo, even if practiced pretty much exactly at SERE, with no more than one session per week and only two pours per session, illegal torture?
To respond to your question, I haven’t particularly familiarized myself with 18 USC 2340 or its interpretations, and haven’t read even the comments in Orin’s previous posts, let alone had a chance to sit down and analyze the Yoo and Bybee memos. But, from a quick read of § 2340, I would say keeping me standing shackled and sleepless for 180 consecutive hours would be torture as defined thereunder.
March 2, 2010, 11:17 amGeoffbo says:
I find it interesting, as a non-lawyer, how dark a line lawyers appear to draw between morality and the law. On the one hand, I agree that what is legal and what is moral are not necessarily the same thing. But morality is embedded inextricably both within the law as well as its structures, and moral judgments are made all the time within its practice.
Indeed, the law takes fundamentally moral intentions into account all the time; judges tend to be more lenient on someone who stole a loaf of bread to feed their family than someone who robbed a diamond store for profit, although the underlying crime – theft – is the same.
As a result, it seems odd to me that there would be complaints that Yoo opponents are more strident about what they perceive to be Yoo’s legal misbehavior because they believe that the behavior was committed to further an immoral action. I don’t see the contradiction between believing that the Reverse Yoo situation shows a similar misdeed yet thinking that it should be punished with varying levels of severity.
March 2, 2010, 11:18 amJoe says:
the line between torture and not-torture exists somehow in implementation differences between the cases
Right. Sex is done all the time legally. When it is done against a person’s will, particularly when the person cannot get away and sex is inflicted on them violently w/o the person’s interests in mind (as compared to S&M or other types of violent sex that a person intentionally partakes in for their benefit), it is rape.
The “implementation” is the rub.
March 2, 2010, 11:23 ambyomtov says:
we’re doomed to run around in circles with the John Yoo/torture question.
I don’t understand this statement. Who exactly is doomed to run in circles? Not me. I know where I stand, and so, seemingly, do virtually all the other commenters.
There is obviously pretty strong disagreement, but that doesn’t condemn anyone to run in circles. Nobody is stopping us as individuals from evaluating the arguments and coming to a conclusion.
That it’s a moral argument rather than a legal one doesn’t change that. Moral arguments can be wrong, too.
March 2, 2010, 11:28 amJoe says:
told Prisoner X he would be waterboarded, but could stop it at any time by indicating his willingness to provide requested information, does that make it not torture?
partially drowning someone would not be torture if someone could stop being partially drowned if they talked?
This would help many government officials, I dare say … a sort of blame the victim approach.
March 2, 2010, 11:31 amjukeboxgrad says:
blue:
A better example of obtuseness would be hard to find.
CIA IG found that “the waterboard technique was different from the technique described in the DOJ opinion and used in the SERE training … the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.” The differences are major.
Why are you pretending that the two things are comparable when they are not comparable?
Next up, blue will reveal that he doesn’t understand the difference between rape and sexual intercourse. (I realize I’m making essentially the same point Joe made.)
===============
bob white:
No. “Requested information” and a pre-agreed safe word are not even remotely the same thing.
I don’t know what you mean by “pretty much exactly.” Is there a safe word or not?
The SERE limit is two pours per person, period. Not “two pours per session.”
Thank you. Then you are admitting we committed torture. Can you think any reason why prosecution shouldn’t proceed?
March 2, 2010, 11:47 amKen Arromdee says:
Here’s another hypothetical (which isn’t really all that hypothetical). You’re not a lawyer, but a pharmacist. Instead of a client buying advice from you on how to torture in accordance with the law, a customer is buying birth control pills from you. (Your boss is on the same side as the customer.)
Like a lawyer with a moral objection to torture, you believe that what you are being asked to provide is immoral. Do you refuse to serve this customer or do you say that you shouldn’t let your personal idea of morality override your obligation to serve the customer?
March 2, 2010, 11:52 amBlue says:
I just read your linked OLC report. You, sir, are profoundly, profoundly dishonest in your citation of that document.
March 2, 2010, 12:01 pmjukeboxgrad says:
Really? Then you should be able to prove it. What’s stopping you? There’s no time like the present.
March 2, 2010, 12:09 pmBob White says:
jukeboxgrad:
The CIA asked DOJ which of the proposed interrogation techniques would, legally speaking, give rise to torture. The DOJ responded. The CIA interrogators did not perform those tasks that, as guided by the DOJ response, were specifically intended to inflict severe physical or mental pain or suffering. Thus, they cannot be convicted because they lacked the specific intent required by 18 USC 2340.
March 2, 2010, 12:16 pmjukeboxgrad says:
You mean the lawyers aren’t responsible because they didn’t do the torture and the torturers aren’t responsible because they got a permission slip from the lawyers? Sounds a little circular to me.
I think you have also failed to notice that CIA exceeded the limits that were expressed in the 2002 memos.
March 2, 2010, 12:25 pmDavid Luban says:
A comment to CGordon:
I don’t see any contradiction between my views on civil disobedience and my views on honest opinion writing. I argued that sometimes it could be morally right to counsel a client to disobey the law. I’m sure we can all think of examples where civil disobedience by both lawyers and clients is morally justified, or at least where it might be. Taking this path may lead to punishment for the civil-disobedient client and both punishment and professional discipline for the lawyer. That’s inherent in civil disobedience. Of course, if jurors conclude that the lawyer and client are right, they have the power to nullify; and if disciplinary bodies reach that conclusion, they can mitigate the discipline. But neither the client nor the lawyer can count in advance on escaping the consequences. It’s why civil disobedience takes courage. Before engaging in it, I also think it takes serious self-examination: what if I’m wrong?
All this is well understood. Now let’s take a lawyer who, instead of straightforwardly counseling the client to disobey the law, gives the client a (frivolous) legal opinion saying that the act isn’t illegal. I don’t see much difference between the cases, EXCEPT: (a) in the latter case, if the client doesn’t actually know the law, the lawyer is deceiving the client and encouraging the client to disobey the law when it isn’t clear the client wants to. Most of the time, that would be morally worse than straightforwardly counseling the client to violate the law – or so it seems to me. In the “reverse Yoo hypothetical,” it’s conceivable that all things considered it’s the morally right thing to do, because sabotaging torture might be a moral trump card. But here too, the lawyer should expect to face the consequences. She has violated ethics rules – not just 1.2 (candid advice on the law), but also rules on communicating with clients, letting clients set the goals of representation, independent judgment, and non-deceitfulness. (b) Alternatively, if the client has demanded that the lawyer reach a predetermined legal answer that – so the client has eyes wide open – the lawyer is simply helping the client fabricate an advice-of-counsel defense. The lawyer is writing a CYA opinion. Under rare circumstances, I suppose that too could be the morally best thing to do: “I, the lawyer, have decided to push my client into civil disobedience to the law, but I will also do my best to protect my client from suffering the consequences even though I bring down even harsher discipline on myself” – a talented writer could surely concoct melodramas where that might be the heroic way to proceed. But it seems more likely in the CYA memo case that the lawyer and client are trying to commit civil disobedience without facing the consequences. Why shouldn’t the lawyer face the consequences? In the “reverse Yoo hypothetical,” it seems to me that the lawyer should be disciplined under Rule 2.1, but can take comfort that she did the right thing by trying to sabotage torture (assuming we conclude that IS the right thing).
I’d like to read your seminar paper criticizing my view of Rule 2.1.
March 2, 2010, 12:37 pmyankee says:
No. Getting people to provide information in the hopes that the torture will stop is the point of torture, not a defense to it.
What jukeboxgrad said. I would add some additional points.
1) As a legal matter, the torture statute requires that the prohibited acts be committed “outside the United States” and “under color of law.” Both apply to waterboarding practiced at Gitmo, but neither apply to the SERE program, making it outside the statute (though perhaps some other statute might apply).
2) Does waterboarding as practiced at SERE cause severe pain or suffering, per the definition in the torture statute, the relevant treaties, and the dictionary? I see absolutely no reason to believe otherwise, though in principle I could be convinced.
3) Applying waterboarding to an unwilling victim in the way practiced at SERE would work like this: government agent puts wet cloth over KSM’s nose and mouth. KSM instantly uses safe word. Procedure stops. I doubt that produces any pain or suffering at all, much less severe pain or suffering.
4) There is a world of difference between doing something to someone who has consented in advance and has a safe word allowing them to stop at any time and doing the same thing to an unwilling victim. Consensual sex is not rape; letting your spouse/partner tie you up is not false imprisonment; being trained to resist torture is not being tortured by your enemies. I doubt this is a legal defense, since on its face the torture statute does not contain a consent defense, though perhaps one might be read in. But it is a moral defense.
5) Your implied argument is a case of the fallacy of the heap: that because it is impossible to specify the point where waterboarding goes from being non-torture (you claim) to being torture, it is never torture.* It was a fallacy when the ancient Greeks identified it and it remains a fallacy today.
* Though you probably want to claim a sharp line can be drawn between what we did and what the Japanese/Khmer Rouge/Spanish Inquisition did. As has endlessly been documented in the threads on this subject, such distinctions are specious.
March 2, 2010, 12:51 pmSarcastro says:
[I rather like Ken Arromdee's hypo. I find the parallel to reverse Yoo to be pretty strong. Personally, I see both cases as a pretty straight-up case of civil disobedience (not racism, Barry!). You can go with the law and live with your conscience, or disobey the law and live with the consequences.]
March 2, 2010, 1:04 pmporterhouse says:
You are conflating an interrogation tactic with torture. If one is using waterboarding to extract information from an enemy combatant who is reasonably believed to have high grade intelligence, then that particular use of waterboarding simply does not fit the Webster’s definition of “torture”. The way the Bush administration employed waterboarding is simply NOT “torture”, it was a tactic used to interrogate.
March 2, 2010, 1:08 pmElliot says:
I wonder if it would be possible to conduct this discussion without ever using the word “torture.” It seems a somewhat useless word here since there is no general agreement on the elements belonging to the set labeled “torture.”
March 2, 2010, 1:13 pmSarcastro says:
Also true of the inquisition! This thread is kind alike Jesus – it’s absolving everyone’s sins!
March 2, 2010, 1:16 pmyankee says:
You’re right, it doesn’t fit the Webster’s definition, but it does fit the Random House definition and the Google definitions. Someone posted the OED definition on another thread; it fits that as well. (Sadly I lack access since it is behind a paywall).
More importantly, interrogation is expressly contemplated as a purpose of torture in the U.N. Convention Against Torture, which the U.S. has ratified. It also fits the definition used in the United States Code, which says nothing about an exception for interrogation.
March 2, 2010, 1:18 pmjames says:
Well did the terrorists enlist in the US Army or are they prisoners? You don’t think that matters at all, do you? Nice
March 2, 2010, 1:25 pmporterhouse says:
Sticking a person in a room and playing a song over and over can be torture. The US blared heavy metal music in order to get Noriega to come out of his compound, so this does not amount to torture–it was a tactic to achieve a goal, i.e.,capturing Noriega. The way the Bush administration used the tactic waterboarding was interrogation and therefore NOT “torture”.
March 2, 2010, 1:38 pmBenjamin Davis says:
Reverse Yoo might also look to international legal obligations including the one that a state can not extract itself from its international obligations through its internal law. If the relevant international law makes it clear that these things are torture while the US statute does not, then Yoo would be duty bound to point that out and could do that without any artful dodging. The premise is that the statute the Reverse Yoo talks about is the beginning and end of the legal analysis. That is absurd but something you see a bit much of. Moreover, the Reverse Yoo could add his personal advice as part of the memo in a duty to counsel mode if appropriate to reach the same result while providing an opinion. As to the Yoo vs. Reverse Yoo – counseling to commit a crime gets you disbarred. Counseling to not do something that is legally permissible is a more mushy area.
Best,
March 2, 2010, 1:41 pmBen
Ken Arromdee says:
I’m glad you like it but I’m not sure you got the point. Pharmacists refusing to sell birth control to customers because they think it’s immoral isn’t a hypothetical. It actually happened.
And there was quite a bit of reaction to the effect of “it doesn’t matter whether you personally think the activity you are helping your customer with is immoral, it’s your obligation to do your job”.
And that reaction–that the pharmacist shouldn’t judge the morality of the job he’s paid to do–was the strongest from the end of the political spectrum that thinks Yoo should judge the morality of the job he’s paid to do.
March 2, 2010, 1:47 pmSarcastro says:
[Ken Arromdee, I am aware of the issue, partially thanks to this blog. That's why I like the hypo - unless one can distinguish it, results-driven ideologues on both sides have a consistency problem.
And is porterhouse really arguing that as long as you have a goal in mind, nothing is forbidden?]
March 2, 2010, 1:58 pmbyomtov says:
Ken,
I’m glad you like it but I’m not sure you got the point. Pharmacists refusing to sell birth control to customers because they think it’s immoral isn’t a hypothetical. It actually happened.
And there was quite a bit of reaction to the effect of “it doesn’t matter whether you personally think the activity you are helping your customer with is immoral, it’s your obligation to do your job”.
And that reaction–that the pharmacist shouldn’t judge the morality of the job he’s paid to do–was the strongest from the end of the political spectrum that thinks Yoo should judge the morality of the job he’s paid to do.
First, it is totally foreseeable that a pharmacist is going to be asked to dispense birth control pills at some point. Someone who thinks birth control is immoral, and intends to refuse to dispense the pills, should not become a pharmacist. Being asked to approve torture when you go to work at OLC is less predictable by a long shot.
Second, many of those who think Yoo should judge the morality were critical of Reverse Yoo’s professional ethics, and argued that his best course of action was to resign. This is pretty analogous to saying that someone who objects to birth control shouldn’t be a pharmacist.
March 2, 2010, 2:17 pmOrenWithAnE says:
Come on Mark, that was obvious in context.
Actually, our ability to remake Germany & Japan into exemplar international countries (2nd & 4th largest economies, respectively) is nothing short of miraculous. It may, however, have been more due to their internal ethos than anything we did and given us the erroneous idea we could replicate that success elsewhere. It suffices to say that neither Indochina nor Mesopotamia have gone as well.
March 2, 2010, 2:25 pmFat Man says:
You are correct Kerr. I deny your legitimacy, and the legitimacy of your little dog too.
March 2, 2010, 2:37 pmPeople like you who put their personal morality above the protection of the people are not fit to govern this or any other country.
yankee says:
I would say that the people unfit to govern the country are the ones who put their personal moral beliefs above the law. The law says that torture is illegal and there is no exception for national security. If you think the law is overly restrictive, your job is to ask Congress to change it. Someone who thinks he can ignore the law whenever it conflicts with his beliefs about what is morally justified in the name of national security is an enemy of the rule of law.
March 2, 2010, 3:52 pmporterhouse says:
Once again, you are conflating tactics with torture. I have already stated that we should limit the tactics we use to interrogate enemy combatants. I also stated the obvious–torture has no place in our society.
I hate to break this to you–our government, led by President Obama, is currently engaged in killing people without even putting these people on trial…it is called WAR. Killing people with guns is a tactic that we use in war. Killing a person with a gun can also be done to execute a person that has been found guilty of a crime before a court of law. Killing a person with a gun can also be done in self-defense. Killing a person with a gun can also be MURDER. So killing a person with a gun does not equal murder, one must look at the circumstances.
Waterboarding can be used to torture, but waterboarding can also be used as an interrogation tactic–in which case it is NOT torture.
March 2, 2010, 4:42 pmSarcastro says:
[What about testicle crushing in the name of security, porterhouse? Surely there must be some limits on acceptable tactics, regardless of the goal.]
March 2, 2010, 4:51 pmyankee says:
Perhaps by your personal definition, and apparently by the definition in Webster’s, but not by the definition of the law. Or other dictionaries. Or historical definitions of torture; was it not when the Japanese, the Khmer Rouge, and the Inquisition wanted information? That’s a very creative view of the matter.
If you want an exception for interrogation, call your members of Congress and ask them to change the law.
March 2, 2010, 5:12 pmMark Field says:
I was joking, which I guess I should have made clearer, but Shelby got it.
Agreed.
March 2, 2010, 5:33 pmleo marvin says:
Impeach Orin!
March 2, 2010, 6:49 pmporterhouse says:
I wasn’t aware that anybody was convicted of waterboarding enemy combatants that were being held in captivity, and as far as I know torture has always been illegal.
You do realize that the Khmer Rouge killed people, just like President Obama is currently engaged in a program of killing our enemies overseas, does the fact that the Khmer Rouge used the tactic of killing people make it any less legitimate? I personally believe Obama’s policy of killing our enemy combatants is morally justified, but the killing the Khmer Rouge engaged in was immoral…what do you think?
Face it, the Bush administration did not engage in torture–the torture issue was merely a ploy by the Democrats and progressives to politically weaken Bush. I vote Democrat and believe Bush and Cheney to be incompetent and terrible executives, but they did NOT torture anybody. I am not a partisan hack, so I believe the actions by the Democrats on the issue of torture are unethical and irresponsible.
I do not care about the current legality of waterboarding, the tactic has been politically tainted and our enemies are probably training their members to resist the tactic anyway, so it no longer is a useful tool to extract intelligence from our enemies.
March 2, 2010, 7:02 pmporterhouse says:
I guess the fact that you did not address the other parts of my post means that you approve of the tactic of KILLING. President Obama is currently engaged in a policy killing enemy combatants overseas, and he and Holder appear to condone KILLING captured enemy combatants. You condone a tactic employed by the Nazis and Soviets–KILLING enemy combatants.
I will repeat myself once again, we should place limits on what tactics our intelligence community can employ to gather information.
March 2, 2010, 7:04 pmleo marvin says:
A key Bush administration official on these matters disagrees.
March 2, 2010, 7:12 pmporterhouse says:
Torture is illegal and immoral.
The official did NOT say waterboarding is torture (she declined to state whether or not she thinks waterboarding is torture), and she said the interrogating techniques employed were authorized. The official is entitled to her opinion and Obama and Holder are NOT prosecuting anybody for torture.
March 2, 2010, 7:37 pmleo marvin says:
Porterhouse,
You said
I simply pointed out that a Bush administration official with major responsibility in this area disagrees. You’re welcome to change the subject, as you did, to what she didn’t say about waterboarding. It has nothing to do with your original comment or my response, but there are lots of informative comments here by others directly on point.
March 2, 2010, 8:15 pmElliot says:
This all reminds me of a scientist who reports scientific results that are skewed to support his moral conviction that society must act in a certain manner.
March 2, 2010, 8:43 pmJohn Moore says:
Well, I see the befoggers and the befogged are still at it attacking the interrogation technique of waterboarding. They conflate interrogation and punishment/terrorizing, as if there was no difference. Example: Randy says,
Then there’s physiological ignorance:Steve P. says:
And of course we have incorrect assertions made with certainty: Mark Field says,
That is not consistent with my personal SERE experience, nor those of other SERE graduates I have talked to. For one thing, we were told that if we talked, we could be courts-martialed and we would in any case lose forever all security clearances… and that’s just a start.
March 2, 2010, 9:10 pm1040 says:
So… going by the comments, I assume we are still living in the hypothetical bizarro world of decent, law-abiding Yoos where torture is also believed to provide good quality actionable intelligence that defuses the ticking time bomb in Times Square?
March 2, 2010, 9:37 pmporterhouse says:
She is entitled to her opinion and you are entitled to regurgitate her opinion. I can read the definitions of words and analyze information, so I know the Bush administration did NOT engage in torture.
Once again, torture is immoral and illegal.
March 2, 2010, 10:11 pmporterhouse says:
Torture is illegal and the Bush administration did not engage in torture.
I honestly do not know what the best interrogation tactics are–that is for the intelligence community to decide. Congress has oversight of the intelligence community and we can pass laws to outlaw the tactics we deem inconsistent with our values. None other than Nancy Pelosi was briefed on the tactic known as waterboarding in 2002.
March 2, 2010, 10:25 pmTatil says:
I know there are tons of comments already, but I think the blog posts misses a good point raised by some in the original thread. The reverse Yoo might be guilty of misstating the law and be punished for it, even if many would applaud him for his moral stance. (There is a cost to taking a moral stances, joining protest rallies that the government deems illegal etc.) On the other hand, the real Yoo is guilty of criminal conspiracy, so he would be punished not just for misstating the law, but also being part of the act of torture.
March 2, 2010, 11:37 pmTatil says:
180 hours of being shackled with your hands above your head, no sleep and barely any food and waterboarding afterwards. Sure, it was just another day at the police station, not torture.
March 2, 2010, 11:44 pmporterhouse says:
Are you aware that Obama is currently killing terrorists overseas without trial? Did you know Obama is open to killing KSM, and Holder is currently committed to holding KSM indefinitely if a jury acquits him?
Do you understand the difference between interrogating high value detainees in order to secure information that could potentially save American lives and submitting an individual to torture in order to get them to confess to a crime they may not have committed? Would you have approved of Bush killing KSM in a drone strike in 2003 if they would not have been able to capture him alive?
Is it moral to kill KSM overseas without a trial, but immoral to interrogate him in order to gather intelligence that could save American lives?
I oppose torture, I support just wars.
March 3, 2010, 12:22 amjukeboxgrad says:
porterhouse:
Then you’re admitting that you’re deeply ignorant about this subject. What a surprise that on the internet one can easily find people who make assertions with great confidence, while not lifting a finger to offer proof, and while also revealing that they know next to nothing about the subject they’re discussing. Keep up the good work! Without people like you, the internet wouldn’t be the internet.
National Review said this:
McCain said this:
So as NR and McCain both know, even though you don’t, the Japanese were “convicted of waterboarding enemy combatants that were being held in captivity.”
But the Japanese were quite silly, because they forgot to remind the judge of the Porterhouse Doctrine: “waterboarding can also be used as an interrogation tactic–in which case it is NOT torture.” If only you had been there as their defense counsel! Quick, get them on the phone. Maybe the cases can be reopened.
More details about the Japanese being “convicted of waterboarding enemy combatants that were being held in captivity” can be found here (pdf).
Good. That means you should have no trouble grasping these important facts, which are obviously complete news to you.
Aside from the facts about waterboarding, I’d like to underline the same point tatil made: are you seriously claiming that standing shackled and sleepless for 180 hours is not torture? Really? Is there any number that would satisfy you in that regard? 1800? 18,000?
Are you claiming that if a future enemy did this to an American, that you would refrain from calling it torture?
I realize you’ve already ducked this question. I’m not asking it again because I expect an answer. I’m asking it again to highlight the fact that you’re ducking it.
Something a grade school student can understand, but you don’t, is that the law and morality regarding the treatment of captives is fundamentally different from the law and morality regarding the treatment of someone who is not a captive.
March 3, 2010, 1:06 amjukeboxgrad says:
moore:
The Senate Armed Service Committee released a report called “Inquiry Into the Treatment of Detainees in U.S. Custody.” From p. 21 in the pdf:
You and I went through this a long time ago. Have you notified the Senate Armed Service Committee that someone has been misleading them? (VC commenter wfjag owes them a similar notification, but he’s being mum on the subject.) Then again, maybe it’s that you’re misleading us, as you have done so many times before (examples).
March 3, 2010, 1:06 amyankee says:
Yes. The question is, do you understand the difference between interrogating high value detainees in order to secure information that could potentially save American lives and torturing high value detainees in order to secure information that could potentially save American lives? The first is legal. The second is a violation of U.S. and international law. Neither the torture statute nor the U.N. Convention on Torture contain any “could potentially save American lives” exception.
In addition to being illegal, it would also be immoral. I will grant that torturing people to obtain information that cannot be obtained by other means and is actually likely to save lives may be morally justifiable under certain improbable circumstances. But torturing people to obtain information that “could potentially” save lives, with no thought to whether the same information could be obtained by other means, is the quick and easy path (or the wide gate and broad road, if you prefer) that allows anything to be justified in the name of security. Arresting members of the opposing party who make it more difficult to pursue “necessary” policies? Imprisoning people who have done nothing to aid the enemy, but might do so in the future? Those “could potentially” save American lives too.
March 3, 2010, 1:39 amleo marvin says:
Just to be clear, the person whose opinion I regurgitated is Susan Crawford, the former chief judge of the United States Court of Appeals for the Armed Forces. You implied that the only logical outcome of being able “to read the definitions of words and analyze information” is the certainty that the Bush administration didn’t engage in torture. Crawford threw out the case against Qahtani because she found he had in fact been tortured. Is it really your contention she can’t possibly know how to read the definitions of words and analyze information?
Also, you said “the torture issue was merely a ploy by the Democrats and progressives to politically weaken Bush.” Either you think Crawford, who has been appointed to senior military legal and judicial positions by three Republican Presidents, including that of convening authority for the Guantanamo military commissions by George W. Bush, was in on this ploy to weaken Bush, or there’s more to this consternation about torture than simply Bush Derangement Syndrome. Which is it?
March 3, 2010, 1:42 amyankee says:
This is actually pretty simple. Crawford missed the exceptions in the U.S. Code and the U.N. Convention Against Torture that say it’s not torture if you do it for purposes of interrogation. They’re written in invisible ink, so it’s an understandable mistake.
March 3, 2010, 1:51 amporterhouse says:
I suggest you work on your reading comprehension skills and then come back here to post. We were discussing waterboarding as it pertains to the Bush administration. The Japanese tortured American soldiers, the Bush administration interrogated high value detainees in order to gather intelligence. Do you understand what a “high value” detainee is? Do you understand what gathering intelligence is?
If you think we engaged in torture, then you should start bashing the Obama administration, because they aren’t going to prosecute anybody for engaging in torture.
March 3, 2010, 1:53 amFury says:
Jukeboxgrad, any chance you can put together a FAQ of some sort on this? The same assertions keep being made by other people over – and over – and over again.
Much bandwidth could be conserved if in the beginning President Bush and his subordinates would have just written/said/otherwise communicated “No, waterboarding is not torture and here’s why”. I’ve always thought that there was never a clear, concise case made for waterboarding and this just added to the issue. It just seemed to me to be a long, tortured (no pun intended) attempt to justify the practice.
And Professor Yoo’s statement to the OPR investigator about the President being legally able to order the massacre of civilian villagers did not help any. Sometimes it’s better to just stop when you too far ahead – or behind – depending on your viewpoint.
March 3, 2010, 2:02 amporterhouse says:
Torturing high value detainees is immoral on many levels, first and foremost, torture does NOT produce useful intelligence, so our intelligence officers would be wasting a valuable asset and possibly put more Americans at risk. I would suggest the officers interrogate the detainees using tactics that have been proven to work in order to gather intelligence from these detainees. I personally do not know which tactics work best.
Our intelligence officers should follow the law, Obama and Holder are not prosecuting anybody for torture…which is illegal.
March 3, 2010, 2:07 amyankee says:
Did the Japanese never torture Americans to get information? Were none of the Americans they tortured “high value”? I don’t know, but would we have accepted that as a defense when we prosecuted them for war crimes? No. Was that a mistake?
Fine with me! I think it’s appalling that the Obama administration isn’t prosecuting the Bush administration officials who authorized such serious felonies. But the government turning a blind eye to its own wrongdoing is par for the course, sadly. Every so often it’s OK to blame the whole thing on a few “bad apples” at the bottom, but the people at the top almost always get off scot-free.
March 3, 2010, 2:07 amporterhouse says:
She is entitled to her opinion. Btw, judges are wrong all the time, you should check out my posts about how intellectually dishonest Scalia is with regard to Heller and McDonald. You don’t want to get me started about how unethical and irresponsible Bush, Cheney, and Rove have been. That said, the Democrats do not have clean hands with regard to the War on Terror either.
I am a Democrat and I voted for Obama (I voted for Gore and Kerry), and I originally thought waterboarding was torture and the Bush administration engaged in torture…until I read what the supposed torture consisted of. Waterboarding was limited to certain high value detainees and doctors observed the interrogations. I simply do not believe what the Bush administration engaged in amounted to torture. The Bush administration was terrible, but they did not engage in torture.
March 3, 2010, 2:27 amjukeboxgrad says:
leo:
Yes, but does she have greater credibility on the subject of torture law than some guy on the internet who doesn’t even know that we prosecuted the Japanese for waterboarding? And who also lacks the integrity to admit that he didn’t know this even after it was demonstrated that he didn’t know this?
Because after all, he “can read the definitions of words and analyze information.” What evidence do you have that she can do the same thing?
=================
yankee:
porterhouse has an unfair advantage in this contest; he is the only party possessing the proper unredacted version of the statutes, where the language you reference can be found. If he had any sense of fair play, he would level the field by sharing that unredacted version with us.
March 3, 2010, 3:14 amjukeboxgrad says:
porterhouse:
Naturally. Because it’s called “torture” when someone else does it to us, and it’s called “enhanced interrogation techniques” when we do it to someone else.
In other news, war is peace, freedom is slavery, and ignorance is strength.
Lots of people like me started “bashing the Obama administration” on this point long before you offered the suggestion. Your ignorance of this reality is roughly comparable to your ignorance regarding the legal history of waterboarding.
Comparisons of the US and Japanese procedures can be found via here. This is one of the many questions you are evading: what’s the difference?
As compared with, say, certain internet commenters who brazenly press on even after it’s demonstrated that they don’t have a clue. You’re in a class by yourself, bringing the concept of “wrong all the time” to an entirely new level. Keep up the good work.
Hearing that is almost enough to make me want to join the GOP.
March 3, 2010, 3:15 amjukeboxgrad says:
fury:
Thanks for the complimentary suggestion.
All the relevant information can be found via here. It’s fairly easy to open those 13 threads in 13 tabs and then search in those tabs.
Another approach is to do a google site search (site:volokh.com).
The facts are not hard to find. The people who are ignorant are working at it.
Welcome to the internet. Human obtuseness is an inexhaustible resource.
It would not have been possible for him to do so, because of our history of calling the practice torture when the Japanese used a procedure that is essentially indistinguishable from ours.
Then again, he could have said this: ‘we torture, and here’s why.’ At least that would have been honest.
There are a handful of commenters on these threads who are honest enough to frankly admit that they support torture. They present an interesting contrast to the porterhouse position.
March 3, 2010, 3:15 amThe record says:
You support torture. You stipulate that the torture stops after twenty seconds of torturing, and that the victim is tortured two times. You say, however, that this torture is not torture, and that this torture becomes torture in the 21st second of the torturing, and the third time the victim is tortured. You do not say where John Yoo disagrees with you.
March 3, 2010, 7:30 amjukeboxgrad says:
record:
It’s true that what we do in SERE does not fit the legal definition of torture, but that’s not because of something I “say.” It’s because of what the statute says (USC 2340). Have you ever read it? Apparently not, so now would be a good time. And if you can make it through all the way to the end, I suggest you also read it to Andy McCarthy, because he apparently hasn’t read it, either.
Let’s see if you can find the words in the statute which indicate that what we do in SERE does not fit the legal definition of torture.
Hint: it’s only been explained numerous times in this thread and other threads, like here.
And if you can navigate that tough assignment, here’s another one you can take on for extra credit: see if you can figure out why what we do in SERE does not fit the common-sense definition of torture (aside from the legal definition). Hint: it has something to do with the concept of a safeword.
I see that you’re confused about lots of other things, too. It’s true that the SERE procedure embodies a maximum duration of 20 seconds, but that’s not something I “stipulate.” It’s something that was stipulated by the people in charge of SERE.
This is in contrast to the CIA procedure, where 20 seconds was described as the minimum duration. A maximum duration of 40 seconds (per pour) is mentioned in various places, but we don’t really know if that limit was respected, other than taking the CIA’s word for it (lol). And of course it’s really quite mysterious that Yoo can’t find his emails and the CIA can’t find their videos. Then again, they probably figure that the people they work for (us) don’t really need to know what they actually do at the office. Especially when it involves felonies.
Yet another thing you’re confused about. Most SERE trainees are not subjected to the procedure “two times.” Most only experience it once. Two is the maximum. Although there is one peculiar exception involving a very special VC commenter.
Yet another thing you’re confused about. I never claimed there was any special significance to “the 21st second.” “The 21st second” is not the key difference between the SERE procedure and the CIA procedure. The key differences lie elsewhere, but you apparently have no knowledge of them because you apparently haven’t bothered to read the statute or the relevant memos. Nevetheless, this doesn’t stop you from making emphatic, unqualified assertions while not lifting a finger to support those assertions with evidence.
But it’s people like you who make the internet great, so please keep up the good work.
You have apparently spent as much time actually reading and actually comprehending my comments as you have reading and comprehending the statute and the relevant memos. That is, none.
To help you get started in this regard, here’s one key example of where Yoo and I disagree. According to Yoo, there is no long history of US courts defining waterboarding as torture. How do I know? Because in his memos, he references that history this many times: zero. Trouble is, that history does indeed exist (pdf).
Yoo says that “the third time the victim is tortured?” Really? Waterboarding someone more than twice is torture, according to Yoo? That’s big news. Stop the presses. You should get on the phone right away with WP and NYT, because you’ve noticed something quite important that they and lots of other people have managed to overlook.
Anyway, thanks for your terrific comment. Aside from the fact that virtually every word revealed some kind of ignorance and/or illogic on your part, your comment was excellent.
March 3, 2010, 9:13 amjukeboxgrad says:
blue:
Eight minutes after you made that bold accusation (not just “dishonest” but “profoundly, profoundly dishonest;” how did you decide I only deserved two ‘profoundlies,’ and not three?) I challenged you to support it with evidence. That was about 21 hours ago.
I was so looking forward to learning something new about the OLC memo I cited. After all, you obviously understand it much better than I do. So what happened? Are your googles temporarily out of service? Have you been distracted by important activities involving navel fluff?
It’s a shame that everyone here would be abruptly deprived of your erudition, so whatever it is I wish you a speedy recovery.
March 3, 2010, 9:19 amBlue says:
You are dishonest because you cite a limited footnote of a quote of OMS staff about waterboarding as if it was an actual CIA IG determination. In other words, you make a claim from authority that the CIA IG agrees with your view when that is manifestly not the case.
March 3, 2010, 9:29 amBlue says:
Any American who would be captured by the armed forces of another country would be a formal POW and cannot legally be interrogated under the GCs. KSM and the like do not have those protections…not that those protections have EVER helped an American serviceman.
March 3, 2010, 9:34 amMark Field says:
Ok, now let’s see if you can lay out the reasoning for this conclusion as it applies to a Special Forces member or CIA agent.
March 3, 2010, 10:30 amjukeboxgrad says:
blue:
There is indeed a footnote, but the footnote is not “limited,” and the footnote is indeed congruent with the “actual CIA IG determination.” And that’s why CIA IG cited the footnote: as support for its “actual CIA IG determination.”
The CIA IG report is here (pdf, 5/7/04). Here is that footnote, in full, unedited (p. 26):
Also notice paragraph 79 (p. 42). Also in full, unedited (aside from the redactions, of course). This paragraph is not a “footnote,” and it is indeed “an actual CIA IG determination:”
Also notice paragraph 261 (p. 108). Also in full, unedited (aside from the redaction, of course). This paragraph is also not a “footnote,” and it is indeed “an actual CIA IG determination,” and it appears in a section called “Conclusions:”
(All my page-number references are pdf page numbers. They are not the printed page numbers.)
Here’s a summary of the above, in plain English: CIA lied to OLC, and OLC didn’t lift a finger to make sure they weren’t being lied to (and they also had no trouble reauthorizing torture in 2005, even after they knew they had been lied to). And one of the torturers admitted to CIA IG that the CIA procedure was different from the SERE procedure, even though CIA had told OLC it intended to use the same procedure.
So you should show support for your claim that it is “manifestly not the case” that the CIA IG agrees with my claim that the SERE procedure and the CIA procedure are materially different. Because, as I have just demonstrated, the CIA IG said quite clearly that the SERE procedure and the CIA procedure are materially different. Nevertheless, people like Stuart Taylor and many others still insist on pretending otherwise. But this is helpful, because by doing so they inform everyone that they don’t expect to be taken seriously. Just like you.
And it should be noticed that aside from the CIA IG noticing that the SERE procedure and the CIA procedure are materially different, the exact same thing was noticed by the Senate Armed Services Committee. And the people who noticed include 11 GOP senators (i.e., 100% of the GOP senators on the Armed Services Committee).
First of all, you are factually wrong. An “American who would be captured by the armed forces of another country would be a formal POW” only if that American is a soldier. I didn’t ask you a question about an American soldier. I asked you a question about an American. Here’s an example of an American who is not a solder: a CIA agent (I see that Mark has made the same point). Here’s another example: a tourist.
Aside from that, I didn’t ask if shackling that person standing and sleepless for 180 hours would be legal. I asked you if you would refrain from calling that torture. Can you grasp that these are two separate questions? Why are you ducking the question?
March 3, 2010, 10:41 amBlue says:
Here is what you wrote:
That is a lie. The CIA IG never made that finding. You cut out this text:
to make it seem as if it was the IGs office that was making the claim.
March 3, 2010, 12:08 pmTatil says:
Not unless they were wearing uniforms and openly carrying weapons.
However, I doubt our current enemy would care much about how we treat our prisoners when deciding how to treat captured American soldiers.
March 3, 2010, 12:34 pmjukeboxgrad says:
blue:
Is English not your first language? Because you seem to not be familiar with the word “found.” It’s a form of the verb “find.” “Find” (in this context) means “discover” or “learn.”
The following sentence appears in the CIA IG report:
This is what I said, which you claimed was “profoundly, profoundly dishonest:”
The key passage is not, as you falsely claimed, “a quote of OMS staff.” A quote is designated with quote marks. Where are the quote marks? There are none. And the first part of the sentence (“OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time”) is clearly attributed to OMS (via “OMS contends”), but the second part of the sentence (“as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant”) is not clearly attributed to OMS. This is the key passage, because it’s this passage that is the basis of your claim that I was “profoundly, profoundly dishonest.”
Let’s pretend for a moment that this passage is actually “a quote of OMS staff,” even though it’s not, and even though the attribution is ambiguous. If so, then there are two possibilities: CIA IG accepts the “quote of OMS staff” as true, or it does not. You are claiming the latter. Really? Where’s your proof? There’s lots of evidence against that proposition, and none whatsoever for it.
If CIA IG rejects the “quote of OMS staff,” why did he include it approvingly? Why did he say nothing to disassociate himself from the claim? And, most importantly, why did he include a number of other statements, clearly and unambiguously his own, making the same claim using different words? Like these:
The CIA IG also states, in words that are unambiguously his own, that the differences are material; i.e., they involve the amount of water used and the number of repetitions. So there is plenty of evidence that CIA IG agrees with the key statement (“the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant”) and none whatsoever to support your wacky claim to the contrary.
So even if one treats those words as a “quote of OMS staff,” it’s perfectly fair to describe it as something CIA IG “found” (the actual word I used), i.e., discovered or learned. If I assist you in an investigation and give you key facts that you accept and use a basis for the report you write, it is indeed accurate to say that the facts I conveyed to you are things you learned. If I collected these facts on your behalf, that is not materially different from you collecting the facts with your own hands and eyes.
Your willingness to present rank sophistry (“profoundly, profoundly dishonest” and “you make a claim from authority that the CIA IG agrees with your view when that is manifestly not the case”) is truly spectacular. Please show us where the CIA IG makes ‘manifest’ your claim that he rejects the key words (“the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant”) that he happily published in his report. Because there is every indication that he agrees with those words.
Unless you can demonstrate any indication that CIA IG rejected the claim, then it was indeed “the IGs office that was making the claim” that this is something they “found,” i.e., learned or discovered.
March 3, 2010, 3:44 pmricky says:
Defining waterboarding as torture is like defining an income less than $20,000 as “poverty”. Have you no sense of perspective, people? There are large swaths of the world where people would consider the conditions at Gitmo heavenly.
March 3, 2010, 3:59 pmporterhouse says:
I will take it as a positive sign that none of the recent posters on this thread appear to have any problem with KILLING KSM or holding him until he DIES in a prison cell regardless of the outcome of his trial or military commission. Hopefully he will not experience any extreme physical pain during his execution, and hopefully being confined to solitary confinement will not subject him to extreme mental distress…I would hate for more accusations of torture to be thrown around.
Btw, does a drone strike that fails to kill a terrorist, but leaves them burned over most of their body and in extreme physical pain and extreme mental distress amount to torture? We better get the Democrats working on that one.
Torture is immoral and serves literally NO purpose in our society. Yes, the Bush administration was incompetent, but they were trying to prevent future attacks by gathering intelligence from high value detainees. Torture would have been counterproductive to that legitimate goal–and preventing future attacks was about the only thing the Bush administration had going for it…they sure weren’t going to win elections on the economy. Once again, interrogation tactics can be limited by our lawmakers, and torture should obviously remain illegal.
March 3, 2010, 4:15 pmjukeboxgrad says:
porterhouse:
Legally, no. The legal definition of torture is that it is (among other things) something done to a captive.
On the other hand, we realize you have your own magic dictionary where words mean whatever you find convenient in the moment.
By the way, I wonder if there’s any hope that you will ever stop evading the question about shackling that I asked you here. For some strange reason the number of people who are willing to answer that question is awfully close to zero.
==========
ricky:
One more person who’s not going to bother trying to explain why we called it torture when the Japanese did it. I lost count a long time ago. You can take a seat next to porterhouse.
In other news, ricky declares that Al Capone is not a thief because he stole less than Madoff.
March 3, 2010, 4:36 pmporterhouse says:
The Merriam-Webster’s dictionary is not “magical”.
Waterboarding can amount to torture. For example, the Japanese tortured American soldiers during WWII using waterboarding. Forcing a person to stand for long periods of time can amount to torture, is the DMV guilty of torture? Sticking a person in a room and playing loud music over and over can amount to torture, but playing music loudly is not always torture. You continue to equate waterboarding with torture, waterboarding can amount to torture, but it can also be a tactic used to interrogate an individual.
All of this was settled in 2007 when the Democrat controlled Senate confirmed Mukasey even though he refused to classify waterboarding as torture.
Once again, I am happy we agree on holding KSM indefinitely regardless of the outcome of his trial.
March 3, 2010, 5:27 pmBlue says:
Jukebox, you got caught selectively quoting a text to twist its meaning and falsely prove a point. Own up to it, at least.
March 3, 2010, 5:56 pmJohn Moore says:
JBG blathers:
Nice job taking the quote without the associated context, JBG. Dishonest as hell. The full comment may be found above .
March 3, 2010, 6:45 pmjukeboxgrad says:
porterhouse:
The Merriam-Webster definition that’s relevant to this discussion is this one:
Feel free to explain how that applies to a drone attack.
You continue to refuse to explain how there is any material difference between the US procedure and the Japanese procedure. Claiming that what we did is interrogation and what they did is torture is not an explanation. It’s an empty assertion.
Really? Even when we do it? What about the magical exemption for interrogation? Because it’s not torture if it’s done for the purpose of interrogation, right? Isn’t that what you’ve been telling us?
When spineless politicians refuse to enforce the law, that doesn’t mean the law doesn’t exist, and it doesn’t mean that the law hasn’t been broken. It’s just means that we are being led by spineless politicians, who respect the rule of law roughly as much as you do.
===================
blue:
The one who is trying to twist meaning is you. You said it’s “manifestly” clear that the CIA IG does not support this statement: “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.” Even though the CIA IG included that information in his report. It’s obviously something he “found,” as I said. And he included several other statements making the same point, so it’s obvious that this statement reflects his view of the matter, as do the other similar statements.
So far you’ve shown this much evidence to support your assertion: none. What are you waiting for? There’s no time like the present.
===================
moore:
You’re being completely incoherent. Even more than usual. The link you provided is a link to my comment, and it’s the same text that you just pasted in. So what are you claiming is missing? Maybe you think you’ve told us, but you haven’t.
And if you weren’t try to back away from your claim, I don’t think you would be so indirect and oblique. Here’s a simple question: are you maintaining that you were waterboarded by SERE and no one gave you a safeword? Even though the Senate reported that all SERE trainees are given a safeword?
A straight answer would be helpful. But judging from prior experience, I don’t think we’re going to get one.
March 3, 2010, 10:09 pmJohn Moore says:
JBG, maybe if you went back and actually read the comment you inappropriatley excerpted from.
What you left out, that completely changes the meaning of your dishonest excerpt, was:
I think this is the link: http://volokh.com/2010/03/01/thoughts-on-the-reverse-yoo-hypothetical/comment-page-2/#comment-763764
And to answer your latest question:
I went through SERE when they used different methods, also very unpleasant. Trainees could at any time get out of the very unpleasant interrogation by saying the right thing (I’m not going to disclose how that worked). Of course, we would then be courts martialed (as the text you left out said), and would never have security clearances again.
In other words, we were under very strong duress to NOT end the interrogation, unless you think living in a Navy brig is like a walk in the park.
Also, they used sleep deprivation and other techniques to put us into a state where I was not conscious of it being training as opposed to the real thing. They wore enemy uniforms and spoke in pidgin English, for example.
March 3, 2010, 10:53 pmJohn Moore says:
Since the edit timer was running out on the last… let me clarify…
During the most stressful part of the interrogation, the idea that it was training was simply not part of my consciousness or my experience.
They were very good at what they did, and the school saved many lives of my fellow aviators in North Vietnam. I am glad I went to it, and would not be eager to do so again!
March 3, 2010, 11:01 pmporterhouse says:
You are misunderstanding me, I do not think the US is incapable of committing torture, I just don’t think the Bush administration engaged in torture. I believed the Bush administration had engaged in torture until the torture memos were released and I realized that the use of waterboarding was controlled and limited to high level detainees–these things matter when distinguishing between interrogation and torture.
That said, from what I have read the Bush administration almost engaged in torture. Allegedly Cheney wanted to waterboard a detainee in order to get them to confess a Saddam/al Qaeda connection–this meets the Webster’s definition of torture. The interrogators REFUSED to do this because they knew it was not intelligence gathering but torture in order to get a confession. The confession would have been worthless, because it would be the product of torture–which is why torture has no place in a free society such as ours.
March 3, 2010, 11:08 pmjukeboxgrad says:
moore:
Here’s the relevant paragraph from the Senate report, in full, unedited (p. 21):
Someone is not telling the truth here. It’s quite misleading, at best, for the Senate committee to tell us that “SERE school is voluntary” and that students can “immediately stop the techniques” if it’s also true that the result of doing so is being “courts martialed.” That’s a highly material omission. It’s like saying that paying taxes is “voluntary,” but we’ll put you in jail if you don’t. And it’s a material omission even if it’s not true now, but was true at some time in the past.
So who is twisting the truth? Is it you, or is it the 11 GOP Senators who signed the statement I just cited?
================
porterhouse:
Your persistence in creating your own reality is quite astonishing. I hope that someday you will share with us your special unredacted version of USC 2340 where one can find the language to support the wacky claim you just made.
There is no exception in USC 2340 for “high level detainees.”
And you insist on claiming that “the use of waterboarding was controlled” even though you haven’t lifted a finger to explain why we called it torture when the Japanese did essentially the same thing.
And you also still haven’t told us if 180-hour shackling (or 1800 hour shackling, for that matter) would be considered torture if it’s done for the purpose of interrogation.
It would be good if you addressed the numerous questions you’ve been ducking, instead of simply regurgitating the same ipse dixit assertions over and over again. We’re already familiar with your assertions. I’m hoping that you might eventually make some effort to back them with something remotely resembling proof.
This statement is nonsense, because false confessions, produced under torture, were indeed used to sell the war. So those confessions were definitely not “worthless.”
But I shouldn’t expect you to know anything about this, because you didn’t even know that we prosecuted the Japanese for waterboarding.
March 3, 2010, 11:49 pmJohn Moore says:
JBG comments:
The only liar here is JBG, who took part of my comment without appropriate qualification, and then mischaracterized it. I am not lying, and neither is the Senate. SERE school was voluntary. To get my Navy Airman’s wings, I had to attend, but getting those wings was voluntary. However, a condition of attending was the acceptance of the penalties (not to mention signing a waiver for all damages) for breaking. The same was true for everyone in Navy Air at that time. I cannot speak for other services, and that may be some of the confusion. My experience was shared by thousands (about 10,000 per year in 1967).
So at least in 1967, we were being “tortured” by the standards JBG is asserting. Once in SERE school, we faced severe penalties for breaking, more severe than an Al Qaeda terrorist, who would be rewarded for it!
March 4, 2010, 2:01 amjukeboxgrad says:
I don’t think so. See the Senate report (p. 257):
(And by the way, several years ago even the Navy stopped using it.) I don’t know for sure, but I don’t think any other service ever used the waterboard.
How do you know? What’s your basis for making claims about “everyone in Navy Air at that time?” Did you have them all over for coffee, so you could hear them relate their experience to you?
It could make sense to have a system where “breaking” means you’re ejected from the program and you don’t get your wings (and there’s a distinct lack of evidence that even this was the case). It doesn’t make sense to have a system where “breaking” means you go to jail.
Sorry, but I just don’t buy it. Saying that the students can “immediately stop the techniques from being used against them” (what the Senate actually said) is quite different from saying the students can ‘immediately stop the techniques from being used against them but only as long as they’re willing to go to jail instead’ (which is what you’re saying).
And if it’s something that was only true in the past, it would still be misleading for the Senate to omit it, because CIA and OLC made various claims about SERE waterboarding which reference the entire history of that program. The Bradbury memo of 5/10/05 is typical:
He goes on to claim that none of them were harmed.
And speaking of the point (i.e., that students who refuse waterboarding are supposedly subject to imprisonment) being omitted by the Senate, it’s also important to notice that I can’t find a single instance of anyone other than you making this assertion. If the assertion were true, we would expect the entire pro-torture gang to be banging that drum (for reasons that should be obvious). And that phenomenon would have started with OLC itself. Consider this imaginary, modified version of the statement I just cited:
That added claim helps the pro-torture argument (which is why you’re making it). So it’s awfully hard to understand why the rest of the pro-torture gang (including, for example, the 11 GOP Senators who signed the report, and including the OLC memos themselves) simply forgot to mention this relevant fact which for some strange reason we are hearing about from no one but you.
If what you are saying is true (“once in SERE school, we faced severe penalties for breaking”) we would be hearing that exact claim from Andy McCarthy, Stuart Taylor, and all the other usual suspects. So why don’t we? There is no sensible answer to that question.
And someone else making the same claim might deserve some benefit of the doubt (although the claim would sound bizarre coming from anyone, for the reasons I’ve just explained), but your history puts you in a different category.
I don’t know what you mean by the “standards” I’m supposedly “asserting.” I’m not “asserting” any “standards.” I’m reporting what CIA actually did, as documented in the various memos and reports (and of course we don’t know what they actually did, but those reports establish a minimum for what they did). You’re claiming that the same procedure (that the CIA used) was applied to you? Really? Are you going to claim, like wfjag did, that you were waterboarded 183 times? Even though the Senate said that no SERE trainee is waterboarded more than twice?
Aside from CIA IG and the Senate report documenting that the two things are not comparable, even OLC ultimately had to admit this (as a result of the CIA IG report). Note this disclaimer from Bradbury (5/10/05):
Of course there was no such disclaimer in the 2002 OLC memos.
And in text I haven’t yet bothered to cite, the Senate report said this:
And of course despite all this evidence, Blue is still trying to claim otherwise. And you are too, when you say “we were being ‘tortured’ by the standards JBG is asserting.” But you’re in ‘good’ company: people like Stuart Taylor are doing essentially the same thing.
March 4, 2010, 9:18 amporterhouse says:
In future you should take a few seconds and look up the definition of the word you are going to spend time investigating–this action would have saved you a lot of time in this instance. You also need to work on your reading comprehension skills, because we were clearly discussing prosecutions with regard to the Bush administration and waterboarding.
Btw, is Holder prosecuting anybody for violating USC 2340? Because often when a crime is committed a prosecutor will bring charges against those individuals suspected of violating said law, and then we have a trial to determine guilt.
The torture issue was pushed by partisan hacks in Washington that were trying to win elections. These same partisan hacks now have the power to prosecute the people you believe engaged in torture and they are refusing to prosecute. Talk is cheap, and politicians twist the truth and exaggerate all the time in order to win elections–which is what the Democrats did regarding torture. I believed Pelosi and Obama, now that I have seen the facts I can come to a conclusion on my own–the Bush administration did NOT torture…and I think Bush was a terrible president.
March 4, 2010, 12:08 pmjukeboxgrad says:
So you really are just going to endlessly regurgitate your naked assertions without lifting a finger to show proof or to address the questions you were asked? What a surprise.
I guess you’re doing your part to remind everyone of what makes the internet great.
Some talk is cheaper than others. The cheapest kind offers no proof and ducks all tough questions.
March 4, 2010, 1:29 pmJohn Moore says:
Yeah, JBG, it’s not surprising you would call me a liar rather than accept the truth of my experience. As to the others that experienced it – do you think they had a special program just for me?
You say “It doesn’t make sense” – which just shows you haven’t a clue about the military and what is and is not important.
We were ordered not to break. We were told that violation of that lawful order would be prosecuted. As you might know, violation of a lawful order is a very serious offense in the military.
Furthermore, losing the ability to get one’s airman’s wings is a pretty serious punishment in itself. If you don’t get your wings, you don’t get a free pass out of the military. Rather, instead of being a highly valued aviator, you become a shamed drudge upon whom all sorts of unpleasantness is heaped, and you can’t just quit like a civilian.
You are also making the specious assumption that there was only one kind of SERE training, and it hasn’t changed in all that time. In fact, different services did it different ways, and it changed over the years. I do know, however, that many aspects of the training I received at Warner Springs are still the same, and still classified, limiting my disclosure about them to what is available publicly.
March 4, 2010, 6:36 pmjukeboxgrad says:
I don’t really need to do that. It’s sufficient to point to your track record. I’ve been waiting for you to explain why you’ve made so many statements which fail to correspond with reality, but for some strange reason such an explanation is nowhere to be found.
Something else that is nowhere to be found is your basis for claiming that “thousands” of people other than yourself were threatened with “severe penalties for breaking.” How do you know? I already asked you this question. Can you help me find the answer? Maybe you wrote it using invisible pixels.
And something else that is nowhere to be found is any instance of any of those “thousands” making the same claim you made. Or any instance of anyone else making the claim on their behalf. This is a peculiar phenomenon. And something else that is nowhere to be found is any attempt on your part to explain this peculiar phenomenon. Even though this is another question I already asked.
Here’s the key sentence from the Senate report:
The Senate says nothing to imply that there is any consequence whatsoever to the student for using the “special phrase.” The Senate says nothing to imply that using the “special phrase” would be treated as “a very serious offense.” The sentence in the Senate report is misleading (if not outright fraudulent) if students who use the “special phrase” are then “prosecuted” for violation of a “lawful order.”
Something else that is nowhere to be found is any attempt on your part to explain why the Senate would write such a misleading sentence. And something else that is nowhere to be found is any attempt on your part to explain why OLC, Andy McCarthy, Stuart Taylor, Fox News and the rest of the pro-torture gang haven’t come within a mile of making the same claim you’re making. Even though it would help their case, somewhat.
I already addressed that. You’re not just making a claim about yourself. You’re making a claim about an experience allegedly shared by “thousands” of others. If “thousands” of people had the same experience that you supposedly had, then this would be relevant to various claims by OLC and CIA that ostensibly encompass the entire SERE program, across service branches and over its full history.
But you’re pretending to not notice that I already addressed this, just like you’re pretending to not notice that I asked you a bunch of questions. The answers to those questions are nowhere to found. Let us know when you’re ready to tell us where those answers are hiding.
March 4, 2010, 10:13 pmJohn Moore says:
JBG, I usually ignore your tirades entirely, and your tedious questions. In this thread, you demonstrated your dishonesty by taking a statement of mine out of context.
I reported on my experience. You, on the other hand, are making an argument that because nobody mentioned that little side effect (courts martial), then it didn’t exist, in any SERE program, ever.
You are free to believe whatever you want. I am content with my memories of the real event.
Oh, and I don’t hide behind a screen name.
Back to your playpen. We’re done.
March 4, 2010, 10:54 pmjukeboxgrad says:
Except that you didn’t just report on your experience. You claimed to have knowledge with regard to “thousands” of others. But for some strange reason you don’t want to tell us where that knowledge came from. On the other hand, I’m sure it’s some kind of state secret.
“Little?” In what way is it little? You must “think living in a Navy brig is like a walk in the park.” Here’s an idea: pick one story and stick with it.
It’s not a “little side effect.” As you pointed out, “violation of a lawful order is a very serious offense in the military.” It would be a highly relevant fact, if it were true, and there would definitely be no reason for the Senate, OLC, CIA IG, Andrew McCarthy, Stuart Taylor and many other parties to ignore it. Trouble is, they did. And there would definitely be no reason for the Senate to make a statement implying what is essentially the opposite (i.e., that the student is not punished for interrupting the procedure). Trouble is, they did.
On the other hand, you making this claim is entirely congruent with your track record of making other claims that don’t correspond with reality. Applying Occam’s razor is the reasonable thing to do in a situation like this.
March 4, 2010, 11:26 pmjukeboxgrad says:
Oops, I almost missed that.
Anonymous writing has a long and honorable history. Presumably you’ve heard of the Federalist Papers. The EFF also has an excellent article explaining that “anonymous communications have an important place in our political and social discourse.”
Whether or not you know my name has nothing to do with evaluating the facts and reasoning I presented. When you start resorting to stuff like “hide behind a screen name” and “back to your playpen,” you’re underlining what’s already obvious: that you’re entirely empty-handed when it comes to presenting something with even a remote resemblance to an actual argument.
March 5, 2010, 1:32 am