Mukasey, Waterboarding, and Public Opinion:
Marty Lederman has an interesting post at Balkinization about waterboarding, Michael Mukasey's testimony, and the reaction of Senate Democrats and Republicans to it. An excerpt:
Here's the latest set of results from about 10 months ago:
A prospective note about comments: In my experience, this issue draws out more anger and frustration than any other issue within the usual range of blogging topics here at the VC. Despite that — or perhaps because of that — I think it's unusually important for commenters to be civil and respectful. To enforce that norm, I'll be unusually ready to delete comments that I think cross the line.
UPDATE: My apologies for an earlier transcription error -- the "rarely justified" numbers in the poll are 25%, not 35%,
The real explanation [for why Mukasey did not condemn waterboarding] lies in . . . Mukasey's revealing testimony that "there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that." Mukasey can't say that waterboarding is unlawful because OLC has already opined — several times over, apparently — that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.I haven't followed these issues closely, so I don't feel I have much informed to say about them, but did have one meta-level comment about the issue. As far as I can tell, the best poll on public attitudes towards torture generally is one provided by the Pew Research Center for the People & the Press. The question they ask is this: "Do you think the use of torture against suspected terrorists in order to gain important information can often be justified, sometimes be justified, rarely be justified, or never be justified?"
Here's the latest set of results from about 10 months ago:
Never Justified: 29%I gather these results help explain why some politicians are not condemning techniques like waterboarding: Whether or not such techniques technically count as "torture," a significant majority of the public in the United States doesn't want a categorical ban on torture. Now just to be extra clear, I am not claiming and could not possibly claim that these poll results shed any light on the legality or the morality of any of these techniques nor whether they are better banned or permitted as a matter of policy. A public opinion poll is only a public opinion poll. But I think the poll numbers provide a helpful context to understand the public debate on the issue.
Rarely Justified: 25%
Sometimes Justified: 31%
Often Justified: 12%
Unsure: 3%
A prospective note about comments: In my experience, this issue draws out more anger and frustration than any other issue within the usual range of blogging topics here at the VC. Despite that — or perhaps because of that — I think it's unusually important for commenters to be civil and respectful. To enforce that norm, I'll be unusually ready to delete comments that I think cross the line.
UPDATE: My apologies for an earlier transcription error -- the "rarely justified" numbers in the poll are 25%, not 35%,
I object to the use of the word "can't." Mukasey may be "understandably reluctant" to accuse people of torture, but that doesn't prevent him from doing so if he thinks that they are in fact torturers. It is not a question of being congenial, but of being honest.
Then you could ask whether people thought torure by American should be evaluated based on diffrent standards.
On a slight tangent, it seems that many people who argue that torture can sometimes be justified seek to rule out soldiers from those who can be tortured. Yet the average private soldier is a great candidate for effective torture: no army will change its plans just because a private soldier has been captured, low level soldiers often receive very fresh and pertinent information, the likelyhood of saving lives on the torturing party's side is high, and most soldiers are far less prepared than fanatical terrorists to resist torture.
A harder question is: if we ever really did have a drug that was safe when administered in effective doses AND actually was a "truth serum", when would we be justified in forcing it on someone we thought was a bad guy?
We have our own standards that are not dependent on the standards of our enemies. It is our own standards that matter.
In fact, a responsible lawyer's job is to clearly explain the law, particularly in cases where it is unclear or people obviously don't understand it or are relying on false/improper understanding of the law.
Mukasey's argument that "and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that" is entirely backward. He owes it to them, to future "torturers" and to the public to explicitly explain what is and what is not illegal torture.
This is all presuming that he is going into this in good faith and is not simply going to provide a helpful opinion of counsel that the administration and torturer's can claim to rely on in defending that they did not knowingly violate the law.
In addition I would like to add a more nuanced reading of the poll data than the argument that they indicate "a significant majority of the public in the United States doesn't want a categorical ban on torture."
I am actually one of those who would answer that torture can rarely be justified. However, that doesn't stop me from wanting a complete ban on torture and I don't think that is inconsistent.
IF I absolutely knew that a bomb was going to go off in a crowded public place and knew that a particular person had information that would allow me to safely prevent the explosion I think that torture could be "justified" in those circumstances. However, those situations rarely if ever occur and as circumstances have borne out, once you allow and bureaucratize torture it just expands and corrupts everything it touches.
I don't trust any government and certainly not this president to make this decision and I would rather suffer the results arising from a refusal to torture than the results we currently have.
The issue of waterboarding as torture is complicated. It apparently works, practically all the time. It is not physically painful, in that it does not spike the pain receptors. It does not result in any injury at all. It may be a matter of a different set of reflexes than those associated with pain and other forms of physical distress. It is enormously frightening and horribly uncomfortable. It is so scary that even the threat of a repeat is usually sufficient, or unnecessary.
It has all the results torture is supposed to get, without any of the actual attributes save for fear and discomfort. Fear and discomfort are bad enough, but for most people, pain receptors and injury must be involved to satisfy any definition of torture.
So I can see waterboarding being in a different category. What you make of that category is something else, but it ought to be considered when wondering why one thing is allowed and another isn't.
I disagree about the private soldier's info. It may be fresh, but like fish, fresh is temporary. It is also limited in scope. Lastly, whatever he tells you might be deliberately wrong instead of simply obsolete. In either case, he's a dead man if he's not right, and probably if he is, too. The only way to test him is to go into a fight with his information guiding you. So if he's wrong, for whatever reason, you won't be around to punish him. Or he can think the odds are pretty high.
Then there's the info flow. My father's unit caught a German who pointed vaguely to the south and said something about artillery and tanks. Nothing they could do about it, so they sent him back. Never heard what happened to him, but the Ardennes Offensive later that week was a surprise. Among other things, there are always tanks and artillery around. Thanks for nothing, Helmut. Got anything we can use?
There is a theory that the Germans changed their plans in 1940 because a copy of the plan fell into Allied hands. So they did Plan B, which, unfortunately, fell on the Allies' Team B. Had they not changed their plans, they'd have hit the A Team and everything afterwards might have been different. That's Big Op planning. What the average soldier knows is pretty little. And there are always deception ops, just in case.
One of the questions regarded torture in the "ticking nuclear bomb" scenario. I thought Butler's response was the most interesting. He said that torture is illegal and remains illegal, but that much like self defense, the circumstances can be very important if someone is accused of torturing someone.
i think it heavily matters WHO we a torturing..should toruture be limited to forign terrirists..or also domestic terrists that have ties oversees.
morally it may not make a diffrence
but if we are conernd about the direction that troutre takes us in..and indeeed...many of the anti torture people are anti torture not becuase they simpatrhise with terrirsts or are really morally opposed to torutre in all cases (see previous post from sjalterego)
recent jurisprudence (hamdi v rumsfeld and the 4th cir decision about detaining padilla) have ruled that it is ok to detian a us citizen cought aborad (hamdi) and even a us citzen caught in the US that has ties to terrists oversees (padilla)..
this basically puts our own american citizens in the same legal catagory of other detaineees does it not?
while many people supported the padila and hamdi decisions..and many of those same people support waterboarding...would thsoe people support waterboarding padilla or hamdi? it probably would withstadn an 8th amendment challange becuase it is not punishment but a way of getting information.
remember that the main problem with hamdi and padilla is that since they are american citizens they have enhanced constitutional rights that others dont have...(notably in hamdi they have the right to a neutural fact finder...even if there rights or rules of evidence of that fact finder dont conform to consittuional norms)
but if we use the hamdi rule (or even more problematic a padilla like rule to start detaining US citizens indefinitly and then COMBINE that with waterboarding..how close are we coming to essentially doing away with every basic right...for good....
remeber that its easy to imagine hamdi and padilla as people who deserve ot be locked up and otrutred becuase we sort of know they are tied ot terrirsts...but the RULE is the real issue....preventing someone who is NOT invovled...who only gets a neutrla fact fidner with paritial conittuinal protectiosn at the hearing..from being indefinitly deatined..and then waterbaorded...
Richard, it depends on what you mean by "works." It's true that waterboarding almost always makes the tortured party speak. But having him tell you what you want to hear and having him provide useful, accurate information are two very different things.
The problem with most torture isn't that most people will remain steadfast in the face of great pain or discomfort. It's that some people will, and the remainder will eventually tell you whatever they think will make the pain or discomfort stop. Waterboard someone long enough, and they may gladly confess to a terrorist attack. But are they terrorists? It's extremely difficult to say.
Additionally, you might compare this to other means of banned interrogation - for example, fake executions. The fact that they don't inflict massive, lasting pain does not necessarily make them more palatable. Finally, as many intelligence and military officials have noted over the years, other interrogation techniques are far more effective.
So let me turn your implied question around: if waterboarding's efficacy is poor, it's unpleasant at best, and there are more humane techniques with results that are as good if not better, why bother doing it at all?
Since part of the effectiveness of waterboarding is to make its subject believe that he is in greater physical danger than is in fact the case, it may originally have been reasonable (from a policy rather than legal perspective) not to seek congressional authorization for it. Public disclosure, even in generalities, could potentially have lessened its effectiveness.
Now, however, the world knows all about waterboarding, and that excuse no longer exists. The issue has become a matter of public debate and concern. If the administration believes waterboarding necessary to national security, it ought to make the case publicly and lay before Congress a draft law to authorize it. Legalisms ought to have no place in a debate such as this.
So here's the thing. The administration and the CIA have both asserted that this and other such techniques have been effective. Reportedly, this is what broke KSM, al Qaeda's chief of operations. That was, what, four years ago? Surely some of the information KSM purportedly coughed up can now be revealed without damage to the ongoing fight against al Qaeda. If waterboarding is indeed necessary to national security, the administration could set things out: "KSM broke only under waterboarding. He revealed this detail about that operation, and we successfully rolled it up. Without employing this tactic, we would not have been able to do so." If the administration can make such an argument, it would be very powerful in terms of swaying public opinion. I, for one, want to see it - if it can be made.
Enough with evasive legalisms, let's settle this thing where it ought to be settled - in the court of public opinion and by the votes of our elected representatives.
At least until this Administration came to office, there was a broad political consensus against torture. That's why the Senate ratified the Convention Against Torture unanimously -- with Jesse Helms running the show in the Foreign Relations Committee at the time! Shouldn't we insist now that the leading law enforcement official in the nation be able to articulate a coherent position on torture -- which necessarily includes the ability to apply a definition of the term "torture" to an established set of facts, such as those set forth in the Judiciary Democrats' letter on waterboarding -- without regard to what may or may not be shifts in current public attitudes?
Isn't the least we should ask of the man about to become our attorney general?
I tend to think the poll question is most naturally read to ask about torture "with the goal of gaining important information" rather than "in a way that does gain important information." Although I agree it would be a better question if that were more explicit to avoid confusion.
The US, under the Convention Against Torture, is not supposed to deport people to countries where it is more likely than not that they will be, well, tortured.
Suppose you're an immigration judge and are faced with a non-resident alien otherwise subject to removal whose only claim rests on having successfully proved that he is more likely than not to be subject to waterboarding if returned to his home country. What result?
Does it matter if:
a. it's likely to happen more than once?
b. the country in question is Castro's Cuba?
c. the country in question is Pinochet's Chile?
As for the efficacy of torture or threats of torture as a means of ascertaining truth, I might recommend commentators review a recent 2nd Circuit decision that has gone unfortunately unremarked upon in these environs.
The fact that there are no such stories with any degree of specificity suggests to me that (a) the people who have been waterboarded knew nothing, (b) they spouted useless misinformation just to make it stop, or (c) both.
I respectfully disagree with your characterization of the poll being that most people do not want a categorical ban on torture. That people think that torture may be sometimes justified is different from people thinking that there should not be a categorical ban. Many people may think that DESPITE categorical ban, torture may be justified in, say, "ticking bomb" scenario (something exceedingly unlikely and hypothetical). Therefore, people may think that there should be an absolute legal ban of torture, but in extreme circumstances one may have to violate this ban and still be justified.
I'm sure physical pain is the central, quintessential case of torture for most people. But who, if they actually thought about it, would honestly deny that, say, Chinese Water Torture is torture? It's right there in the name, for goodness' sake. But it doesn't involve "pain receptors."
I mean, honestly. Let's say we anaesthetized people but left them conscious, then cut open their bodies and made them watch while we poked around in their inner organs? That wouldn't be torture?
It seems like the difference with waterboarding is that most people just figure it can't really be that bad. Like, it's just like taking a shower upside down, right? Even I don't quite get how it could be all that awful. But apparently it is. So it's torture.
All the theoretical reasons why torture doesn't work are wishful thinking, for obvious reasons, which don't fit the actual reality of when it's been used. Not that it always works, and sometimes, as in the Inquisition, you want a false confession anyway, so it hardly matters. But the hard guys of nation states in the last few millenia have actually made it work for real. So we're at one of those points where we have to dismiss reality because it doesn't fit the theory.
I'd put waterboarding in another category and then talk about forbidding it. This is niggling and hair-splitting, but this is a lawyers' board so....backatcha.
As I say, this is a partisan issue, anyway. Google up Menchaca and Tucker to see how much anybody actually cares when it's some of our guys. Double points for anybody who says, "Who?"
I tend to think the word "categorical" means that there are no exceptions.
Forget all the red-herring arguments about whether the information received is accurate; that applies to all information received from the enemy, voluntary or otherwise.
As Richard Aubrey stated above: That isn't 'torture,' that is temporary discomfort. People in the County Jail are subjected to temporary discomfort all the time. And it's a lot closer to 'torture' when you voluntarily go to the dentist.
[The remainder of the post deleted by OK on civility grounds.]
The fact that there's a categorical ban doesn't mean that there may not be instances when it may be appropriate to violate the categorical ban. Even if we assume that torture may be sometimes justified, it doesn't mean there should not be a categorical ban. Let there be a categorical ban and if one violates it, it would be at his/her own peril.
[OK comments: Markusha, I think we're just disgreeing on the meaning of the word "categorical." Looking at the definition provided at dictionary.com, I am using the first definition, "without exceptions or conditions; absolute; unqualified and unconditional," You are using the third definition, "pertaining to a category."]
Frankly, I thought that condoning waterboarding merited harsh and sarcastic criticism. I can't condemn such condondation too harshly.
The non sarcastic point in the deleted comment was that Mukasey's point was an untenable one. He said:
In this quote Mukasey shows that he errs on the side of protecting tortures rather than erring on the side of protecting human rights. He is being congenial to waterboarders and condoning the practice. He does not want to put the careers or freedom of torturers at risk and has no apparent concern for the secretly held, secretly tourtured detainees. Such a position clearly demonstrates that he is unsuitable for the job of AG.
Whatever effect public opinion polls may have on politicians, Mukasey is not a politician; why should he pay any attention to polls at all, especially in the context of answering a question of law in a hearing to evaluate him as the next AG?
Maybe your point is only meant to be tangentially related to Mukasey's answer-- if so, sorry in advance.
Mukasey is not a politician; he should not pay any attention to public opinion polls. I was referring to the GOP Senators, primarily.
One year later: You were subjected to waterboarding once and told all.
You were subjected to various mutilations for which there are no useful prostheses and told all.
How would you be, one year on?
I don't think public opinion polls drive this topic on either side. I think there's a real and fundamental difference between peoples' attitudes. The polls reflect that difference, but they don't drive it.
Of course, we DID ban torture, categorically, when we adopted the CAT. Even the Administration appears to accept this moral frame -- Bush regularly says that "we don't torture". Of course, that's an outright ... well, I'll try to be polite and just say that it's a misrepresentation. I guess that's the tribute hypocrisy pays to virtue.
Markusha clarified his position and I agree. One can favor a categorical ban on torture and still come up with a hypothetical where it could be "rarely justified." You seem to be thinking only of affirmative defenses, not mitigating or extenuating circumstances.
If you have an actual ticking time bomb situation, wouldn't you violate a categorical ban on torture? You may feel that this is one of the "rarely justified" times. That's fine, but if you end up torturing someone and can't present sufficient evidence that the mitigating circumstances are so compelling that you should get off, I want you to be severely punished (say, 25 years to life imprisonment) for committing a morally repugnant and reprehensible crime.
I don't doubt that torture could work under the conditions you describe. But has it?
An argument can be made for torturing people when it's absolutely necessary. We've been torturing people for a while--surely there's at least one case where it was clearly necessary?
The upshot was that the state could not use any evidence from the statements of the kidnapper in court. He was convicted of murder and kidnapping on the evidence anyhow, and the policeman was fired and tried. As I remember the outcome of that case, he was found guilty, but scooter libbied out of jail.
Now this is, I think the proper outcome to the ticking bomb issue. Anyone have more details?
So long at *I'm* not being tortured, it's a luxury to decide that other people shouldn't be tortured.
But I don't grasp the connection of Prof. Kerr's observation with Prof. Lederman's guess about Mukasey, which I thought was spot-on. If waterboarding is torture, then it becomes difficult to explain why those who authorized and performed waterboardings are not torturers. And as we've seen, not even Cheney is eager to be publicly identified as a torturer.
I was just making an observation that came to mind after reading Marty's post -- and in particular his frustrated remark about how no GOP Senators joined the letter.
My take was that Prof. Kerr was trying to draw a connection between the poll and the fact that Republican senators did not sign the letter to Mukasey. Of course this raises the question of why only Republican Senators would be concerned with public opinion polls.
I agree with you on the substance: America's feelings on torture are muddled and that may explain Mukasey's reluctance to condemn waterboarding.
I presume there are. But the political climate certainly wouldn't accept success as any kind of excuse, now, would it?
As if the admin is stupid enough to give you something to work on.
And, for good reasons or not, sources and methods need to be classified.
There are stories, probably true, that Churchill allowed the Luftwaffe to bomb Coventry without taking the slightest precautions with the info provided by Enigma. Didn't want the Germans to start wondering.
And if they knew, say, a flight of Germans was coming, they'd give orders for a destroyer or recon aircraft to be in the area to provide a plausible reason for the fact that the response seemed to imply some kind of warning.
We don't want people to know what we know. We may have use for it some time later, and allowing the bad guys to know what to change is a bad idea.
But you know that, don't you?
and "conditions you describe"? You think that's some kind of rare situation? Those are the circumstances every interrogator tries to arrange, whether using torture or not.
Has it worked? See the resistance networks vs. the Gestapo.
You might agree with Matt Yglesias, then:
I get the sense that Republicans think that while Iraq may now be a bad issue for their party, that things like unconstitutional surveillance, arbitrary and indefinite detention, and routine torture are big-time winning issues for the GOP. So they like the hawkish posture, even if Iraq's been a problem. That's how it seems to me.
Beyond that, I can also say for a fact that that's how it seems to an awful lot of Democrats. Talk to people on the Hill or people involved in messaging, and there's just no confidence that they could win a big high-profile standoff with Bush on pretty much any issue related to terrorism. There's a critical margin of members who just won't back any position that can't also attract substantial Republican backing to provide "cover."
Now, I happen to think the Repubs and Dems are both wrong, and that the poll numbers you cite (as corrected by Mark Field) are fairly encouraging, given that the Dems have done NOTHING to move the public on this issue. A Reaganesque "Torture - It's Just Not What America Does" message would work pretty well, is my hunch. (Commenters who object that there's a record of American torture stretching back to the Phoenix program &beyond are missing my point; I'm talking politics here.)
Leaving me to infer that the Dems either are clueless, or just don't care for the most part. Both are plausible.
I'm still waiting for the Democrats in either house to push legislation to specifically ban waterboarding. I think it would pass with veto-proof margins. I'd vote for it if I were in Congress. Other techniques that have been criticized are a different story - especially those that rely on fatigue rather than intense fearfor their effectiveness (think forced standing) - fatigue is also more calculated to overcome the brain's ability to remember and repeat lies.
Nick
Its not about eliciting confessions. I realize most here are lawyers, so they must put everything into their frame of reference. Torture, mild or not, is quite effective in getting information out of folks, if a) they have it and b) you know they have it, and of course c) you have a way to confirm it before acting on it. Stuff like waterboarding is both fast and effective. Its even relatively humane, because it doesn't last long - no one can hold out even 5 minutes.
How should it be authorized? How about FISA court or equivalent on the front end, then a board of inquiry on the back end, along with a removal from duty, at least temporarily? If the board of inquiry determines the info to the authorizer was forged, you get sent to the grand jury.
I can't see how that would help. The dems ban torture and the the Administration simply claims that anything short of the pain of death or organ failure isn't torture. Then the Administration repudiates that interpretation and secretly redefines cruel treatment. There is no reason to think the Administration wouldn't simply redefine waterbording. And all of that is still window dressing since Mukasey wouldn't repudiate the Administration's position that it can ignore any and all laws by invoking the president's "Commander in Chief" duties--the mistaken Unitary Dictator theory.
Okay, Orin--I'll do it for you. If a solid majority of the public across all social classes were strongly opposed to torture under any circumstances, then torture would undoubtedly be illegal, and few Americans would defend its morality or advocate its wisdom as public policy. Conversely, if a solid majority of the public across all social classes were strongly in favor of allowing torture under certain circumstancs, then permitted forms of torture and their rules of use would be written clearly and explicitly into the law, and few Americans would doubt its morality or usefulness.
The problem is that while a solid majority of Americans do believe that torture is appropriate in at least certain rare circumstances, the elite segments of society, in politics, the law, the press, academia, and other influential fields, are disproportionately opposed to torture. Moreover, they tend to view their position as a demonstration of their moral superiority, and hence a validation of their elite status. In many cases, this snobbery leads to extreme positions, such as deploring anything less than cushy hospitality for captured terrorists, and morally equating American government officials who defend the rare use of harsh interrogation methods with the terrorist organizations from whose members they seek life-saving information.
An obvious analogy is capital punishment. A solid majority of the public considers it appropriate for brutal murderers. But not only do America's (and many other countries') elites disproportionately oppose it, but they overwhelmingly do so for reasons that demonstrate general revulsion at any harsh punisment of anyone, however heinous their crimes, and sneering contempt for those barbaric plebeians who consider it regrettably necessary in the case of hardened criminals.
Mind you, many of those same people who vigorously defend the rights of convicted criminals to all manner of creature comforts, will also joke crudely about the rape that awaits them at the hands of burly fellow prisoners. That is, their concern is chiefly for their own sense of superior righteousness, not for the actual well-being of those they pretend to defend. Likewise, those who insist that torture must be illegal under all circumstances typically respond to the "ticking bomb" scenario by invoking some poor low-level interrogator who should go ahead and do what has to be done, then take the fall and accept the punishment so that America's sanctimonious Pecksniffs can sleep soundly in their cocoon of moral superiority.
Sadly, I strongly suspect that the results in the two cases will be the same: torture of terrorists with potentially valuable information will be carried out just as the punishment of criminals is carried out--by arms-length proxies acting "illegally" with a wink and a nod. They will be far more brutal, less selective and ultimately less effective than the sanctioned alternative would be, but the right of America's elites to incessant moral preening will be preserved.
But it is wrong, whether it is sometimes effective or not. Whether it is used by good guys against people they can call terrorists or not. No one who has expertise as a torturer should be tolerated, much less employed, bu this country.
Wow. Getting such a rich conclusion out of such lean facts.
*sigh* But it is already illegal! Somehow that keeps getting lost in the shuffle.
I don't understand your position. Could you articulate the argument for why you think the facts are "lean" but the conclusion "rich"?
And this constellation occurs ... when?
Allow me to add spice to my conversation:
No one ever said that torture won't sometimes produce good intel. Sure it will. If I torture you and demand your name, you'll tell me your freakin' name.
The issue is, whether torture is superior to other methods in producing good intel, and whether torture has aspects that make it inferior. It's not superior -- you can get people to talk just fine without torturing them, if you show them some respect and behave cannily. (Look up Mark Bowden's article on how we nailed Zarqawi by cleverly interrogating our subjects.)
And torture has obvious bad effects I've described. If I'm not happy that you say your name is Wayne, and I want you to confess you're Batman, then I'll keep torturing you -- until you admit it.
Historically, who's famous for using torture? The Inquisition. The witch-hunters. The KGB. They wanted confessions. That's why the European "justice system" until the Renaissance used torture -- because the only satisfactory way to prove guilt was to get a confession.
Given the hordes of professional interrogators who disavow torture, and the paucity of support for torture's alleged efficacy, I'm left to conclude that the commenters here who support torture, do so because they like it.
Why? Makes them feel tougher than the pantywaist liberals, I suspect.
As Senator McCain has told us many times, it's not about them. It's about us.
And I don't know too many people on the streets of flyover land who would seriously categorize waterboarding as "torture" if given a good description. Go watch the Navy flyer training in "An Officer and a Gentleman". They were all tortured.
In any case, the recollections of interrogators of German soldiers in World War II who say they did not use coercive interrogation do not seem to me to be useful in evaluating the problems in dealing terrorists today, who are Islamist fanatics, not regular army soldiers.
And what happens if what the interrogator thinks he knows is false? He keeps on until he gets confirmation of the falsehoods.
This doesn't even require torture, just persistence and threats. See the Higazy case cited by Simon above. Under pressure, Higazy eventually came up with three different stories to account for the radio hotel employees claimed they'd found in his room on the 50th floor. All of them were proven false when a pilot came looking for the radio he'd left in his room on the 50th floor.
It's a good thing this mistake only involved wrongful imprisonment and threats against the guy and his family, not something like an interrogator asking about enemy plans with a pre-conceived notion that caused him to reject the truth, get confirmation of a false idea, and send troops into a trap. (Two examples of how strong can such pre-conceived ideas can be: In 1941 Stalin not only rejected intelligence predicting the German invasion, but delayed the response to the actual invasion in the belief that the first reports were fraudulent. In 1944, the German high command - not just Hitler, but a whole committee of generals - held back panzers needed for a counterattack at Normandy because they believed planted intelligence that the real attack would be elsewhere.)
So, we've got one example of a screwed-up coercive interrogation. How many examples of useful intelligence found by American interrogators using waterboarding or other tortures can you cite? "It's secret" isn't an excuse; anything someone we captured four years ago might have known about terrorist sites or plans is long obsolete.
I presume--absent information which, as it happens, is not available--that interrogators choose torture when other methods fail. Given the absolute impossibility of failure of other methods (see the opponents of torture for examples), that would be rarely.
Eric Haney, ex of Delta Force claims most guys actually want to talk. He's against torture. I don't know who "most guys" are, but when subject to taciturn guards and limited conversation with other prisoners, a quiet room with unlimited coffee and real cream and sugar and an individual who wants to talk to you individually can be extremely effective with "most guys".
Hell, I recall writing in a diary I kept for about a week in Basic that the first time somebody referred to me by name (we'd just gotten our names on our fatigues), I was most impressed. Sneaky technique, calling somebody by his name, when for a week it had been yelling and goheregothere.
It's the other guys who bring up the question.
The Attorney General's job is not to say what the law is. It is to enforce the law as he understands it, with due discretion. That he refuses to explain his understanding of the law, or the principles by which he would enforce it, is very problematic in my mind.
I have mentioned before, in other threads, that there is a story that some of the planted intel ref Normandy was done by betraying resistance leaders to the Gestapo, being confident that they would eventually give up the FALSE INFORMATION with which they had been provided which they believed. It would not have worked if torture had not "worked" and would not have been tried if the allies had not expected it to work.
It's interesting that torture has been practiced for millenia to no end whatsoever, don't you think?
In our society, I doubt that anybody who used it, even successfully, is going to be talking about it. It's too disgusting.
There's nothing odd about this distinction at all. Rules are always under- and over- inclusive, and the literature on the duty to obey the law in the legal philosophy literature consistently characterizes such a duty as merely prima facie, subject perhaps to being overridden by particular unusual considerations. See the SEP article on Torture and on Political Obligation.
Who do you think has is better equipped to determine the most appropriate interrogation procedures for terrorists: the professional, uniformed military or political appointees?
As for this --
According to one source (WSJ editorial of 10/9/07), waterboarding was successfully employed in the interrogation of Abu Zebaydah and Khalid Sheikh Mohammed.
-- Ron Suskind has already shown us what "successful employment" meant with Zubaydah (false reports that sent us running around in circles). As for KSM, he's thought to have confessed to plenty of stuff he didn't do.
More importantly, who *says* that torture was the only way to get good intel from these guys? Answer: the same people who are guilty of torture. Those of us who didn't abandon our critical faculties after 9/11 may wonder whether those sources are completely trustworthy on the subject.
I've told you what our standard should be--The Army Field Manual. Your response was that the document was just some kind of cover and the military really didn't follow it. So you just insult the military when I offer a reasonable and well-thought standard (based on a century of interrogation experience in many different circumstances) for interrogating detainees. It offers the advantage that if we follow its standards we won't be put in the situation of having to ask "is this torture" (or actually "cruel, inhuman or degrading treatment"--since that is the standard, not torture) and get down to the hair-splitting you are so concerned about (which apparently for you is somewhere between yanking fingernails and starting to cut off body parts).
Next up, ejo on squishy words like "consent" -- what is consent, after all? Doesn't no mean yes sometimes?
So, on the "separate question" of whether the Gestapo's torture tactics should be emulated by the United States, would you care to state your opinion, so as to ward off any future misunderstanding?
It does not matter what someone who appears on CNN or other talk show says – including a US Soldier who had been captured by terrorists and waterboarded. Although pundits and columnists may not understand the legal significance of definitions, I’d think that lawyers would. Pundits and columnists throw around terms like “genocide”, “war crimes” and “torture” to obtain ratings by depending on the shock value of such words. I have seen comments to other blogs objecting to the use of the term “Islamofascist” on various grounds, mostly concerning the shock value and lack of accuracy of the term. When discussing what is or is not “torture” I’d expect to see at least as much concern, since there is a definition, even if you don’t happen to agree with it. For further information, see,
“CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, TREATY DOC. 100-20, 1988 U.S.T. LEXIS 202, April 18, 1988, Date-Signed.
LETTER OF SUBMITTAL
DEPARTMENT OF STATE, Washington, DC, May 10, 1988.
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DECLARATION REGARDING THE NON-SELF-EXECUTING NATURE OF THE CONVENTION
Although the terms of the Convention, with the suggested reservations and understandings, are consonant with U.S. law, it is nevertheless preferable to leave any further implementation that may be desired to the domestic legislative and judicial process. The following declaration is therefore recommended, to clarify that the provisions of the Convention would not of themselves become effective as domestic law:
"The United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing."
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ARTICLE 1
Article 1 defines "torture" for purposes of the Convention. The Convention seeks to define "torture" in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned. "Torture" is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture.
The Convention does not attempt to catalogue the various acts that constitute torture, nor was it thought possible to draw a precise line between torture and lesser forms of cruel, inhuman or degrading treatment or punishment. Rather, the Convention sets forth certain criteria which must be applied in determining whether a given act amounts to torture. For an act to constitute torture, it must be an extreme form of cruel and inhuman treatment, it must cause severe pain and suffering, and it must be intended to cause severe pain and suffering.
The requirement that torture be an extreme form of cruel and inhuman treatment is expressed in Article 16, which refers to "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. * * *" The negotiating history indicates that the underlined portion of this description was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind.
The extreme nature of torture is further emphasized in the requirement that torture cause severe pain and suffering. Article 1 recognizes that severe pain and suffering may be mental as well as physical. Mental pain and suffering is, however, a relatively more subjective phenomenon than physical suffering. Accordingly, in determining when mental pain and suffering is of such severity as to constitute torture, it is important to look to other, more objective criteria such as the degree of cruelty or inhumanity of the conduct causing the pain and suffering.
Further, the requirement of intent to cause severe pain and suffering is of particular importance in the case of alleged mental pain and suffering, as well as in cases where unexpectedly severe physical suffering is caused. Because specific intent is required, an act that results in unanticipated and unintended severity of pain and suffering is not torture for purposes of this Convention. The requirement of intent is emphasized in Article 1 by reference to illustrate motives for torture: obtaining information of a confession, intimidation and coercion, or any reason based on discrimination of any kind. The purposes given are not exhaustive, as is indicated by the phrasing "for such purposes as." Rather, they indicate the type of motivation that typically underlies torture, and emphasize the requirement for deliberate intention or malice.
In view of the above, such rough treatment as generally falls into the category of "police brutality," while deplorable, does not amount to "torture." The term "torture," in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain. See European Court of Human Rights, Judg. Court, January 18, 1978, Case of Ireland v. United Kingdom Series A, No. 25, 2 E.H.R.R. 25, 80; European Commission of Human Rights, Op. Com., 5 November 1969, Greek Case, §11, YB XII p. 501.
The scope of the Convention is limited to torture "inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity." Thus, the Convention applies only to torture that occurs in the context of governmental authority, excluding torture that occurs as a wholly private act or, in terms more familiar in U.S. law, it applies to torture inflicted "under color of law." In addition, in our view, a public official may be deemed to "acquiesce" in a private act of torture only if the act is performed with his knowledge and the public official has a legal duty to intervene to prevent such activity.” (Emphasis in original).
In view of the US's declarations and reservations when the Senate ratified the Convention, I find many of the questions put to the Attorney General nominee by various Senators about whether waterboarding is torture and similar topics to be exceptionally disengenious. Since legislation is needed to implement the Convention, including its definition, it is the Senators who were asking the questions who should have been answering those questions. However, since the US press, pundits and columnists fail to understand the significance of the fact that the Convention is not self-executing, they also failed to note that it is Congress' obligation to enact the standards, rather than an Attorney General's obligation to make them up and then prosecute on that basis.
It was not by accident at all. It is completely dishonest to discuss military decisions and pretend that in war that soldiers do not die in battles every day because of conscious and moral decisions made by their commanders.
Sometimes they are not as stark as the one made in the "Lone Survivor" instance, but they are made nonetheless.
To insist that torture never works is silly. It does work, sometimes and in some circumstances, and to insist that it's been used for millenia solely as a form of recreation or something is nonsense.
Of course torture is going to elicit information, and sometimes that information is going to be useful. But the question is the overall cost-benefit analysis of using torture is being overlooked by those who advocate it. The military knows that the tactical benefits are soon outweighed by the strategic disadvantages. Read the introduction to The Army Field Manual as to why the military rejects coercive interrogation techniques. Remember that the new Field Manual was written after the debacles of Abu Gharaib and other incidents throughout Afghanistan and Iraq and in spite of considerable pressure from the civilian leadership of the Pentagon and the administration to allow some coercive techniques.
Even if we have elicited good information through the use of kidnapping, torture, secret prisons, and extraordinary rendition, we have severely damaged relations with Canada, France, Italy, Germany (a few dozen CIA agents will never be able to set foot in Europe for the rest of their lives) and other countries. In at least a couple of those cases, the damage was completely unnecessary because we nabbed completely innocent people. Has the information we have gained through extra-legal and illegal methods worth the lack of cooperation we are going to experience in the future and the damage to our reputation in the world?
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Back to the statutes for you.
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The US war crimes statute as amended in September 2006 refers to 18 USC 2340 for the definition of "severe mental pain or suffering," and draws on 18 USC 1365 to define "serious bodily injury."
And I repeat my offer to all of the idealists and theoreticians inveighing here. Accurately describe waterboarding and equivalent rough questioning techniques to the flyover citizens in Indiana and Kansas City, then ask the people whether such tactics are fair game for questioning non-citizen terror suspects. I wager that you don't do so because you know you wouldn't like the poll results. When I ask a random person on the street what "torture" is, the response is something like bamboo needles under fingernails, razor blades slicing, or assaults on gonads, not getting wet and dunked under rules designed to frighten but prevent harm.
See, for example, Hanson on Turkish views of the US.
The worst these examples can do is to give people who already have an opinion an excuse for the opinion, which they would hold without the excuse.
Our opinion of ourselves is all that matters.
I think you miss the point of the Senate's clarification. They are limiting the definition the definition of torture to practices carried out under the "color of law" (which of course would cover anything authorized by the President), the discussion of what constitutes torture (and they reaffirm that stress positions and infliction of mental pain and suffering constitutes torture) is secondary.
The Senators have the power to ASSERT that waterboarding is illegal. Expressly and specifically if they feel such precision is necessary to make the point.
This of course is pure unadulterated bullshit. If you think that our opinion of ourselves is all that matters then we are doomed to lose the war on terror. Just try and maintain troops in Afghanistan or Iraq without the cooperation of Kuwait, Turkey, or Pakistan (or Afghanistan and Iraq for that matter).
Actually existing statutes and laws (e.g. the war crimes Act and the implementing statute for the Convention, and the law that McCain got through last year) set the standard of treatment as prohibiting any acts that would be cruel and unusual punishment under the constitution. Of course on McCain's bill, Bush issued a signing statement saying the CIA was exempt from it.
The rep which damaged us is the Bush 41's betrayal of the post Gulf War uprising. This made Iraqis understandably cautious about standing up with us again. They should have learned it the first time, after watching Viet Nam.
The issue of, say, Abu Ghraib is meaningless in this context. It would be used by some lefty European student as an excuse for his pre-digested anti-US opinion. If not, he'd find another. But Abu Ghraib etc. doesn't seem to bother some of our allies who think naked twister is funny, in the context of what used to happen at a.g.
"However, those situations rarely if ever occur (the prospect of gaining life-saving information)..."
How can you know that? it would be nice to believe that prisoners (ours as well as theirs) never have crucial potentially life-saving information. I could sleep better. But that is just a claim, right? what you would like to believe.
Some of the arguments above mention situations where the Geneva Convention (I think) applies; uniformed soldiers captured during a conventional war (will there ever be another conventional war?). That's different, isn't it? the soldier is a voluntary or drafted citizen; a workman who goes about his duties with unknowable enthusiasm. He is not, or is unlikely to be, a zealot.
The soldier should be and sometimes is granted the respect and the care that the conquering forces can afford. He gives "name, rank and serial number" and is consigned to the stockade.
The clandestine, unacknowledged "soldier" should expect less civilized treatment. He probably does expect less and, if he survives with no lasting injury, I think justice is served.
As I noted, waterboarding is illegal under any reasonable reading of U.S. law (and any reasonable definition of torture as it is defined in international law). That is why no one in the Administration or potential nominees are foolish enough to be caught saying for attribution, and especially under oath, that waterboarding is an acceptable interrogation technique. To admit publicly that we have waterboarded detainees would immediately make George Bush a documented liar in the eyes of the civilized world, since he has said "we don't torture"--much more so than Clinton was when he said "I never had sex with that woman".
The only other alternative is we immediately drop out of the ranks of countries that consider themselves civilized and committed to the rule of law.
Snatching innocent German citizens and spiriting them away to Afghanistan to be tortured does matter though. Keystone cop like operations in Italy conducted without the consent of the Italian government also matter. Spiriting away Canadian (again innocent) citizens to Syria to be tortured matters too. All these incidents will reduce the likelihood that these countries will cooperate with us in the future.
Again, read the Army Field Manual, it does not distinguish between a uniformed soldier (in fact once uniformed soldiers indicate they are unwilling to give more than their service number, rank and name, all interrogation must stop) and anyone else. So the rules are meant mostly for non-uniformed, irregular fighters who are not entitled to POW treatment under Geneva.
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I take the opposite view, as a matter of statutory construction. I think the recently-passed Military Commissions Act results in a "damage line drawing" wherein waterboarding does not cross the statutory damage line.
Several of the comments above embrace this willfully obtuse definition. Waterboarding, they argue, only causes temporary discomfort.
Bah.
By this definition, Saddam’s rape rooms were not torture for the women raped – they were only temporarily discomforted. They were not torture for the interrogated – they only had to watch their daughters be raped and were not physically touched at all.
One of the big moral problems of torture is the direct infliction of pain; it is the way you psychologically damage the tortured person. I teach in an immigrant-rich community. I had a young man from the Sudan who freaked out when I patted him on the back for a correct answer. He was literally incapable of seeing any physical contact as being positive because he was tortured by a militia in his homeland. I never enquired about the type of torture. It might have been physical pain or it might have been induced feelings of powerlessness while seeing his family abused, or maybe he was – wait for it – waterboarded. I didn’t ask for clarification from his family because it just didn’t matter. We just had to find a way to help this young man integrate back into society and feel safe, even if he didn’t suffer “major organ failure.”
Semantic games are fun. Arguing about definitions can be a jolly good time. But I hold that excusing the excesses of this administration is harmful to our nation.
Let me ‘splain.
But first, lest I be excused of being a islamofascistophile (is that a word? To heck with it. I’m German. I can glom words together), let me state clearly and unequivocally that I have no sympathy for the terrorists and believe that they do not have valid moral claims that would check our actions. Having set themselves outside the human social contract, they cannot then claim the protections of that contract.
That said, it is hard to know with 100% accuracy whether or not someone is a terrorist (aside from catching them in the act of putting out an IED.) As I understand it, many of our detainees were turned in by their neighbors or captured by reward-seekers. Some of the detainees were not Al Queda sympathizers when we shipped them to Gitmo. Of course, as a wise friend of mine once said, once you’ve sodomized someone with a plunger, whether or not he is sympathetic to the terrorists is a moot question. You’ve made up his mind for him.
The Geneva Conventions do not apply to the torture of the detainees despite the fervent dreams of the Kos Kids. The Geneva Conventions apply only to uniformed members of a combatant signatory of the treaty. Under the Geneva Conventions, illegal combatants may be summarily executed on the battlefield. And yet:
Even if we are not bound by treaty or moral argument to refrain from torture, we still should refrain from torture.
Because it is not effective and counter-productive.
This is what all the semantic-torture-narrow-definers miss. It simply doesn’t matter how you define torture. Many reasonable people will disagree. Many reasonable people with different ideas about the origins of rights will disagree with me about whether captured terrorists have a right not to be tortured.
When we torture folks, the limited utility of largely unreliable data is more than outweighed by the negative impact on support for the American effort – internationally and domestically.
The data gathered by torture is highly unreliable. If someone is removing your spleen (major organ failure!) with a spoon, you are likely to say whatever you think your torturer wants to hear in order to make the torture stop. If someone is waterboarding you (Not torture! Not torture! We have defined it as not torture!), you are likely to say whatever you think your non-torturer wants to hear in order to make the non-torture stop.
The damage to our reputation, however, can be reliably anticipated.
It does not good, oh ye Bush apologists, to point the finger and cry “The terrorists are worse torturers!” True, and irrelevant. The terrorists aren’t trying to motivate a coalition of liberal-minded Europeans and Latte-swilling Americans.
Aside from: one of my biggest complaints about the anti-torture folks like John McCain is that they underestimate the rationality of the American public and try to ban torture on the grounds that when we torture other folks are more likely to torture our soldiers. They should simply stick to the point that t