Col. Davis and the Testimony that Wasn't:
As Eugene noted below, the Pentagon did not let Col. Morris Davis testify before the Senate about military commissions. As it turned out, the military sent Brigadier General Hartmann instead, and he was "not equipped to answer" some of the Senate Committee's questions, such as whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman. Has it really come to this? More from Marty Lederman here.
Related Posts (on one page):
Of course if would violate the Geneva Convention. US military personnel are covered by the Convention. What kind of a question is that?
Indeed!
If the agent was an Iranian national captured in Iran it would not. But how would a US Citizen charged in Iran with espionage differ from one of the illegal combatants in Guantanamo? I am sure some were caught operating covertly. There are people who say all our captives in Guantanmo are covered by the Geneva Convention.
The short answer is that GC3 conveys privileges against coercive interrogation to uniformed regular forces who follow the GC like a downed US airman, but not to terrorists disguised as civilians who routinely violate the laws of war.
playing dumb has a way of making you look dumb. why not simply give the "bart" answer and make the Senators refute it. then they look dumb, not you.
The witness is a general and not a lawyer. I am sure he knew the answer to the airman question, but he also probably knew that there would be a follow up question about al Qaeda detainees which he is not prepared to answer.
Graham should have known better than to sandbag the General.
Now there's a nice, concise statement if I've ever heard one. Thanks Bart. Should keep the Angry Left at bay, at least for a minute or two until they come up with some "reality-based" counter to it.
One real issue is the fact that the military, with the support (and probably goading) of the Executive does not consider itself accountable to Congress, and hence to the people. Another is that Congress does not seem to have the spine to demand accountability from the military, and from the Executive in genreal. Perhaps Congress should de-fund all operations in Guantanamo Bay until the Executive can explain what's going on there.
Because the Bart answer is wrong. The correct answer is "absolutely". And the GC requires humane treatment and due process rights for all captured persons who are in a conflict covered by the GC, regardless of their status, which would include not waterboarding them (which is clearly inhumane treatment, even if it doesn't rise to the level of torture). Bart, who claims to have military experience, (but apparently with the Union Army in the Civil War), apparently slept through his course on the GC.
As for a CIA agent captured by Iran. I don't know if Iran is a signatory to the International Convention Against Torture or other Cruel, Inhuman or Degrading Punishment or Treatment, but we certainly are. And waterboarding is most certainly banned under that, regardless of the status of the victim (or their status under the GC). So I just don't understand what this obsession with the GC when it comes to waterboarding is. It is hardly the only treaty or U.S. law that is applicable. And arguing about whether it is torture or not is also an irrelevant exercise. Even if waterboarding isn't torture, that doesn't make it legal.
The real reason he is unable to speak to the matter is the same reason COL Davis is unable to speak to the matter: he was told not to cooperate.
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives? If so, should it ever be done, followed by a pardon?
As for the Geneva conventions, the Supreme court ruled that they apply to Guantanamo inmates by the ridiculous claim that "conflicts not of an international nature" (I hope I am quoting the GC correctly) includes all conflicts in which one group was not a nation, e.g. Al Qaeda, when the common sense interpretation of the GC was civil conflicts.
A better comparison would be that Iran grabs a U.S. citizen it says is an "enemy combatant" and waterboards him or her. Exactly how do we argue that Iran's executive doesn't have the discretion to make that call?
What if the "punishment" could give every boy and girl a pony? How about that?
There is no such reasonable belief as srg implies. Latest to speak out was a former head of the Defense Intelligence Agency, re: the Zubaydah waterboarding:
There are always those who, whether out of fear or inexperience, rush to push the panic button instead of relying on what we know works best and most reliably in these situations. I would caution those who would rely on this example. It is far from clear that the information obtained from this prisoner through illegal means could not have been obtained through lawful methods. The FBI was getting good intelligence from this prisoner before the CIA took over.
And there are numerous examples of cases where relying on information obtained through torture has disastrous consequences. The reality is that use of torture produces inconsistent results that are an unreliable basis for action and policy. The overwhelming consensus of intelligence professionals is that torture produces unreliable information. And the overwhelming consensus of senior military leaders is that resort to torture is dishonorable. Use of such primitive methods actually put our own troops and our nation at risk."
So -- would you use "inhuman or degrading punishment" in order to put our nation at risk? Why not?
Whether or not the Guantanamo detainees were covered by the GC in the first place was indeed the question the SC wrestled with (and even I will admit them finding that AQ--although not Taliban fighters--were covered by GC is a thin reed indeed), once a person is covered by GC, contrary to what Bart asserts, they must be treated humanely and are entitled to due process rights--regardless of whether they are a uniformed combatant, spy, sabetuer, terrorist, or common criminal. Bart, and many other posters, seem to think that the GC only cover the treatment of POWs. This is patently untrue. The GC merely sets aside a huge portion of its text to lay out the very special treatment accorded to POWs. Some classes of prisoners are accorded even more rights than regular POWs (e.g., Chaplains have the option of being repatriated if they so choose).
The important first distinction, whether you are a legal or illegal combatant, determines whether you can be charged and tried for things soldiers do--like shooting at and killing the enemy. But just because you are declared to be an illegal combatant, that doesn't give your captors the right to torture you or even treat you harshly.
The military bans it with no exceptions, that's good enough for me. If the military sees no net benefit in such practices (and theoretically they would have the most to gain from such tactics), why should I substitute my judgement for theirs.
Is this a question of law? If that is your question, then absolutely yes. There is nothing in U.S. law, the Constitution, or any treaty that says, "cruel, inhuman or degrading punishment is banned except . . ."
So, provide this evidence, then. I quote you a lieutenant general who used to run the freakin' Defense Intelligence Agency and who relies on "the overwhelming consensus of intelligence professionals."
What have you got? I would prefer sources who are not themselves facing potential indictment under the Torture Act, etc. -- they might have an understandable motive to bend the facts just a bit, to keep themselves out of prison.
Oh yeah, me, Anderson, the former head of the DIA, the freaking military of the United States. All us liberal pansies.
Seriously, what's going on? America won't fall if we refuse to torture. It already has if we say it's okay.
I suspect torture does "work" sometimes. The problem is that there's no easy way to know when it has worked and when it resulted in fantasy. That means that the results are untrustworthy in EVERY case except to the extent they can be otherwise validated.
I favor a complete ban on torture regardless of whether it might "work" in a specific case.
But rationally, it is hard to see why torture, if used only to save lives, and only in cases where nothing else is working, and where time is essential, is unjustified, but killing soldiers, and even in some cases civilians ("collateral damage" when not used disproportionately) is justified.
Please enlighten me.
The criterion isn't saving lives, though. In every federal oath of office I've ever seen, the oath-taker swears to defend the Constitution, not the People. It's nice to save lives but saving the Constitution, and presumably the Eighth Amendment with it, is the real name of the game.
Not a lawyer? Yo, isn't he the head of the JAG Corps?
I'll leave it to others to debate the moral and efficacy issues, but yes, all such treatment is banned even when it saves lives. Read the UN Convention Against Torture, it has a specific provision that torture and other forms of cruel, inhuman, and degrading treatment are banned no matter what the justification is.
Because the Bart answer is wrong. The correct answer is "absolutely". And the GC requires humane treatment and due process rights for all captured persons who are in a conflict covered by the GC, regardless of their status, which would include not waterboarding them (which is clearly inhumane treatment, even if it doesn't rise to the level of torture).
There is no "absolutely" about it. The GC3 only extends the privilege against coercive interrogation to privileged combatants. The US airman qualifies, al Qaeda terrorists do not.
There is no "clearly" about it. "Humane treatment" has no objective definition. Humane can just as arguably mean all treatment short of torture as it can anything else.
Furthermore, the only "due process" an capture is entitled to under the GC is a status determination. When Zubaydah and KSM both admitted up front that they were al Qaeda, the status determination was made.
We really don't know the costs and benefits with any precision, I don't think. But that's a little beside the point of whether the legislative branch should have a right to know what sorts of things the executive branch is doing
As JFT points out, the Convention Against Torture is more relevant here. I believe our own torture statute was enacted as part of our treaty obligation under the Convention?
This is correct. However, your problem here is that the US signed an amended definition of torture under the CAT, that it adopted nearly verbatim in the torture statute, which defines torture as the intentional infliction of severe physical or mental pain, with the mental pain being further defined as having to be prolonged. The intentional infliction of 35 seconds of panic on Abu Zubaydah during waterboarding does not cause any physical pain and cannot be considered to be prolonged severe mental pain.
A better comparison would be that Iran grabs a U.S. citizen it says is an "enemy combatant" and waterboards him or her. Exactly how do we argue that Iran's executive doesn't have the discretion to make that call?
If they catch an American who is a member of a terror group dedicated to the mass murder of Iranians, then they are free to waterboard him to gain intelligence to stop the terror group.
What is good for the goose is good for the gander.
I'd have to refer that question to the Hon. Ms. Pelosi. She seemed to have some opinions on the matter.
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?
The military bans it with no exceptions, that's good enough for me. If the military sees no net benefit in such practices (and theoretically they would have the most to gain from such tactics), why should I substitute my judgement for theirs.
The CIA does it for them. Stop ducking and weaving and answer the question.
Both Zubaydah and KSM were initially interrogated within the restrictions of the Army Interrogation Manual and did not cooperate. They both broke within moments of being waterboarded and give up several al Qaeda cells which were in the process of preparing for their next mass murders.
I highly recommend that you read the book "The Terrorist Watch" by Ron Kessler, which goes into great detail concerning the intelligence that Zubaydah and KSM gave up to the CIA.
Bart, are you a lawyer? Were you in the military? If so where did you go to law school and which military did you serve in? You are simply wrong, wrong, wrong. Just like you were wrong that "prior to" the MCA officers in the U.S. military could legally summarily execute spies (and no I found your explanation by "prior to" you meant 140 years prior to the passage of the MCA unconvincing).
For you to argue that humane treatment is anything that doesn't rise to the level of torture is patently ridiculous. For you to argue that the GC doesn't require basic due process guarantees for everyone who is captured or held by the occupying country is simply wrong. You simply are making unsupportable arguments. The GC envisions that those declared illegal combatants (or spies, common criminals, etc.) will be charged with crimes and tried in a system that approximates normal due process rights accorded criminal defendants in a functioning legal system.
You may not like it but that is the way the system works.
If this is the case, then the argument that the information was time critical and necessary to prevent an imminent attack ("ticking timebomb") is hardly credible, is it? Seems that you are just torturing to get stale operational information.
So I guess my answer is still Never and what the CIA did was clearly illegal and the information they claim they obtained probably inflated to justify their atrocious acts. Just like after claiming that the tapes of the torture were destroyed to protect the identities of the torturers, one of them is willing to talk publicly about all the valuable information obtained from the interrogation.
when I put it in the way I just did, does the utter backwardness of your position sink in?
When the SCOTUS ruled that the rat bags were covered under the GC then the ruling precludes any trials in the civilian justice system.
I imagine the GC reasoning was that a soldier might not get a fair trial in the civilian justice system of the country he is at war with.
I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:
1) The GC3 extends the privilege against coercive interrogation to all captures.
2) The GC extends due process rights to interrogated combatants who do not fall under the definitions of the GC3 apart from a status determination.
3) The GC offers an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture.
The FBI has people trained to do this, but CIA insisted on snatching the prisoners away for their ghoulish "enhanced interrogations."
Kessler seems like he had his mind a bit made up beforehand -- I don't think we're going to know the truth about Zubaydah's interrogation and what it yielded unless and until the Congress develops some guts and demands it. Certainly, the proud CIA folks were in a hurry to destroy the tapes that would show exactly what Zubaydah said.
What about if they suspect the American is a member of a terror group? Can they then hold them for 6 years and waterboard him in order to get him to admit he's part of a terror group?
After all, what's good for the goose is good for the gander...right.
Oh, and the Blackwater Operatives. They can waterboard them right? They're not part of a uniformed military. You have no problem with that right?
Kiriakou is identified, was there and speaks in detail.
Actually, he "said he saw intelligence reports saying that waterboarding ... had caused Abu Zubaydah to start talking after 35 seconds."
That's never been in dispute; it's what Zubaydah said, and how useful it really was, that we need to know. Suskind went into some detail on that; Kirikou hasn't.
Kiriakou's claim that Zubaydah's info disrupted numerous attacks is based on hearsay. Give the years that've passed since the capture, it's time for the feds to put up or shut up on the intel we obtained and on why it supposedly couldn't be obtained by FBI interrogators.
Btw, Darius Rejali's op-ed "5 Myths About Torture" is quite good -- all 5 myths have figured prominently in VC threads.
Kessler has been covering the CIA for years as a reporter for both the left WP and the right Newsmax and as an independent author. He has earned a variety of journalistic awards from his largely left leaning colleagues. I am unsure what is the basis for your claim of prejudgment.
In any case, I would again recommend reading his latest book. There are two chapters of roughly 20 pages of detail about both Zubaydah and KSM. If Kessler is writing fiction, it is very detailed fiction down to the al Qaeda cell code names which were given up.
Btw, on another thread, Bart wrote re: Zubaydah's interrogation: Kiriakou is identified, was there and speaks in detail.
Actually, he "said he saw intelligence reports saying that waterboarding ... had caused Abu Zubaydah to start talking after 35 seconds.
I do not recall Kiriakou saying that in his ABC interview as implied by your linked article. I will have to listen to it again.
Anton, repeat after me: The Geneva Conventions have never, ever, not once protected an American prisoner in any of the Asian countries that have held American prisoners. That includes USSR, China, North Korea, Japan, Vietnam, Iran, Iraq, Afghanistan, Cambodia, Laos.
Anyone who brings the GC into the current debate self-identifies aa a fantasist. A legally-sophisticated fantasist, maybe, but still delusional.
Where's the rebel base, Leia? "Dantooine ... they're on Dantooine."
Back to Kiriakou &Suskind: Kiriakou helped capture Zubaydah but then handed him over, &everything he heard was secondhand at best. His statement is that Zubaydah did NOT provide intel immediately after waterboarding, but rather the next day, citing an overnight visit from Allah.
Suskind writes that CIA got bogus crap out of Zubaydah until a clever interrogator started debating predestination with him and quoting the Qur'an to the effect that Zubaydah was predestined to be captured &spill to the Americans. The One Percent Doctrine at 115-17.
We don't know either man's sources, but Suskind's reporting is much more detailed.
We had a group of folks-- at the agency who were trained in-- what had been reported in the press, we called enhanced techniques. I came back to the-- to the United States to headquarters to move onto a different job. But we had these trained interrogators who were sent to his location-- to use the enhanced techniques as necessary to get him to open up-- and to report some threat information.
Bart states; If they catch an American who is a member of a terror group dedicated to the mass murder of Iranians, then they are free to waterboard him to gain intelligence to stop the terror group. What is good for the goose is good for the gander.
What about if they suspect the American is a member of a terror group? Can they then hold them for 6 years and waterboard him in order to get him to admit he's part of a terror group?
I presume by "suspect" you mean that the Iranians have no evidence and have not conducted a status determination. The GC requires a status determination based on some quantum of evidence such as what we have been providing to the al Qaeda.
There was no question that both Zubaydah and KSM were al Qaeda long before their interrogations. Indeed, neither man denied the fact.
Zubaydah and KS were waterboarded for information on the location of other al Qaeda, not for admissions that they were al Qaeda.
Your hypothetical is not remotely similar to US practices.
It is American power, not the Geneva Convention or the Torture Convention, that gives whatever protections Americans have against mistreatment by Iran or North Korea et al. It is naive in the extreme to think for one minute that our enemies give a damn about the Geneva Conventions. If a foreign government thinks planes and cruise missles will arrive, then they will think twice. If they don't fear us, then they will do what they want.
This is not 1900 with gentlemen fighting gentlemen.
Time to grow up.
[Myth no.] 3 People will say anything under torture.
Well, no, although this is a favorite chestnut of torture's foes. Think about it: Sure, someone would lie under torture, but wouldn't they also lie if they were being interrogated without coercion?
In fact, the problem of torture does not stem from the prisoner who has information; it stems from the prisoner who doesn't. Such a person is also likely to lie, to say anything, often convincingly. The torture of the informed may generate no more lies than normal interrogation, but the torture of the ignorant and innocent overwhelms investigators with misleading information. In these cases, nothing is indeed preferable to anything. Anything needs to be verified, and the CIA's own 1963 interrogation manual explains that "a time-consuming delay results" -- hardly useful when every moment matters.
Intelligence gathering is especially vulnerable to this problem. When police officers torture, they know what the crime is, and all they want is the confession. When intelligence officers torture, they must gather information about what they don't know.
You could have just written "might makes right" and saved yourself some time.
Thanks for the transcripts. I stand partially corrected. Kiriakou's knowledge about the later Zubaydah coercive interrogation is second hand.
However, public disclosed second hand information from one who has access to that information is still far more reliable than Suskind's leaks from anonymous sources with unknown access.
The two accounts do converge on one point, though. They both discuss how Zubaydah spent a great deal of time discussing the finer points of theology with his interrogators.
Kiriakou claims that these discussions did not provide actionable intelligence.
Suskind's anonymous source also does not actually claim that these discussions led to actionable intelliegence. You posted: "CIA got bogus crap out of Zubaydah until a clever interrogator started debating predestination with him and quoting the Qur'an to the effect that Zubaydah was predestined to be captured &spill to the Americans." The clever part of this leak is that the anonymous source does not reveal what Zubaydah actually provided after being tricked. It could have been the phone number to his favorite falafel maker. Remember that Suskind's conclusion is that Zubaydah was a mentally deranged gofer who provided nothing of use.
Actually, Suskind does report what Zubaydah handed over after being "tricked": he confirmed that KSM's code name was "Mukhtar." Page 116. He also gave them Padilla's name, leading to his arrest.
We didn't even try proper methods. A "DO chief" told Suskind, "Did it work because he was tortured first? That's the problem. Once you go down this road - and try everything - it's hard to know what worked."
As for your distinction b/t Suskind's sources and Kirakou's, I fail to understand what it is.
I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:
I don't know how many times I have to cite this before it sinks into some of your thick skulls
The clever part of this leak is that the anonymous source does not reveal what Zubaydah actually provided after being tricked.
Actually, Suskind does report what Zubaydah handed over after being "tricked": he confirmed that KSM's code name was "Mukhtar." Page 116. He also gave them Padilla's name, leading to his arrest
This is not the actionable intelligence which provided the location of KSM used to capture him and does not contradict Kiriakou.
You have me at a disadvantage here. You appear to have your copy of the Suskind book in front of you while mine is at home. Did Suskind's anonymous sources claim that Zubaydah provided anything else?
Art 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
The SCOTUS hasn't disagreed; see JFT's penultimate comment above. There is nothing wrong with a military tribunal, assuming that a terrorist like KSM is an "enemy combatant" (which he isn't, but never mind for now).
But it has to be a "regularly constituted" tribunal that guarantees basic rights. The kangaroo-courts created by the MCA fulfill neither of these conditions.
Given where we stand, I would not have a big problem with trying KSM and similar worthies under straight UCMJ rules. But the Bush administration won't agree to that, b/c it's committed itself to using information that we tortured out of people, and there is no reputable court in the world that would allow such evidence. That is indeed on the top-10 list of how to distinguish a "reputable court" from the kind found in China or Burma or any number of other judicial hellholes.
Without prejudice to the competence of courts and superior military authorities, disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers.
In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of war.
Article 96 says I am wrong about POWs trying each other, but I read about it it happening during WWII with German POWs. The last sentence may have been may have been introduced after 1945. Or the trial and execution of a "deserter or Dutch resistance fighter" captured by the Canadian Army and tried by the German prisoners may have been illegal.
That's all that Suskind reports, judging by the index. "Mukhtar" let us confirm that KSM plotted 9/11. Suskind at 138.
This is not the actionable intelligence which provided the location of KSM used to capture him and does not contradict Kiriakou.
KSM was not captured via Zubaydah's intelligence, according to Suskind. A Qaeda traitor gave up his location for the reward money. Suskind at 204-05.
--All this being said, I *do* hope that Suskind has left messages with his sources, trying to get their comments on the Kiriakou interview.
I believe those "trials" were conducted secretly, to punish misdemeanors and perhaps traitors. You probably can't get 3 German POW's in the same tent without an ad hoc legal code's being drawn up.
I posed the following challenge to back up your claims:
I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:
1) The GC3 extends the privilege against coercive interrogation to all captures.
2) The GC extends due process rights to interrogated combatants who do not fall under the definitions of the GC3 apart from a status determination.
3) The GC offers an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture.
You replied with:
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Nothing here extends the GC3 privilege against coercive interrogation to all captures. Waterboarding does not induce humiliation, it induces panic. Furthermore, the US definition of torture is the intentional infliction of severe physical or mental pain, with the mental pain lasting an appreciable period of time. 35 seconds of waterboarding does not constitute torture under this definition.
Nothing here provides an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture. Indeed, you can imply that humane treatment is anything not prohibited by this section of GC, which means anything less than murder, mutilation, torture, hostage taking and humiliation. None of these limits includes waterboarding.
Nothing here discusses the due process required before you can coercively interrogate a captured enemy combatant. Subsection (d) applies to criminal prosecution of captures. In fact, the GC requirement for a status determination is the only hoop you have to leap through because all you need to determine whether the capture enjoys a privileged status.
In relations between nations, that is reality.
Most countries sign these pieces of paper with no intention of ever following them.
We take them more seriously, but too many who comment here make them a fetish.
As various commenters argued (eventually persuading me), that is not quite what the statute says. "The intentional infliction or threatened infliction of severe physical pain or suffering" is assumed to cause "prolonged mental harm." That reading hangs on the word "the" as in "the prolonged mental harm." Of course, Yoo et al. were trying to drive a truck through the statute, not construe it.
Kiriakou's interview (pp. 25-26) makes it perfectly clear that waterboarding inflicts severe suffering, as does sleep deprivation.
It's silly to argue otherwise, because the entire point of these procedures is to make people suffer so much that they "talk." If they didn't inflict severe suffering, then they wouldn't "work."
A perennial mistake. Might makes might.
America has lost more by sacrificing its honor and reputation than it could ever have gained by torture.
It would be interesting to hear from Suskind again after the current round of revelations. He is a good reporter and I enjoyed his book. However, someone is being gamed here.
This trial lawyer trusts witnesses who identify themselves and make themselves available for cross examination under oath. I heartily distrust anonymous sources with unknown agendas.
Would you consider waterboarding "crueal treatment", because you forgot to include that one? My God man, give it up.
We have had this discussion about the statutory definition of torture before. The reason we can keep going round and round is that we could both be subjectively right. The term "severe pain" has no objective definition because you cannot objectively measure pain. Consequently, if you think severe pain is a hangnail and I think it is an amputation, who is to say we are wrong.
Even though this argument can have a definite counting angels on a pinhead quality, you can make colorable arguments that an act falls outside the statutory definition of torture.
There is no real fundamental difference between the terms pain and suffering. Pain is the sensation. Suffering is the state of undergoing the sensation of pain. Consequently, if the act in question does not cause pain, it cannot cause suffering.
Waterboarding (placing celophane over your mouth and nose and pouring water over it) does not cause any appreciable physical pain or suffering.
Waterboarding does cause substantial panic, but the panic is very brief and is not prolonged mental pain or suffering.
Hell, there are at least two reporters I have seen who have allowed ex SF types to waterboard them on video and then taped their closing remarks without any evidence of prolonged mental pain or suffering. Waterboarding is something that you do not want to repeat, but it does not cause ongoing panic.
IOW, the Congress used a superfluous word? It's possible to win that argument, but good luck.
I don't think Kiriakou's description of being waterboarded leaves any room for argument that he did indeed suffer. If you think that having severe panic inflicted on you isn't suffering, well, you're just not using words the way most people do.
If you think that having severe panic inflicted on you isn't suffering, well, you're just not using words the way most people do.
My friend, I can just as easily say that you have to be a wimp to think 35 seconds of panic for simulated drowning is "severe pain," but we will be talking past one another again.
I nearly drowned as a kid, choking on real water for much longer than 35 seconds before an adult pulled me out. While I would not care to repeat the experience, it was not remotely painful and I was not mentally traumatized.
I panicked more on a roller coaster. Consequently, from my subjective point of view, riding on a roller coaster is more torturous than waterboarding.
Maybe you think that riding a roller coaster is fun.
As I pointed out before, determining what constitutes "severe pain" is a subjective fool's errand. You simply cannot make an objective determination measuring pain without a point of comparison.
If you defined severe pain as that you experience from a substantial physical injury like breaking a bone or dislocating a shoulder, then a person might have a point of reference if they have personally suffered this kind of pain in the past. However, there is no point of reference in the statute, which makes it useless.
I suppose Scalia might buy that one.
WASHINGTON (AP) -- The House approved an intelligence bill Thursday that would prohibit the CIA from using waterboarding, mock executions and other harsh interrogation methods.
The 222-199 vote sent the measure to the Senate, which still must act before it can go to President Bush. The White House has threatened a veto.
There's no doubt that the Congress couldn't override a veto, but I suspect the Repubs will squash it in the Senate to avoid making Bush have to veto an anti-torture law. But, hey, "we don't torture."
As I pointed out before, suffering is simply the state of experiencing pain. You cannot have suffering without pain. Do you contend otherwise?
BTW, as it has done on numerous other subjects, the Dem House enacted the bill limiting interrogation to the Army Interrogation Manual knowing that it would fail in the Senate so they could say that they tried to enact legislation that they really did not support in private.
Did Pelosi have any comments about her acquiescence to CIA coercive interrogation back in 2002?
Pure political theater.
It must be hell to be a Dem tasked with the responsibility of defending the country while having to deal with their base.
"Suffer" is broader than simply "hurt." You're taking an unreasonably narrow definition of "pain." Being made to feel as though I'm drowning is "suffering" by any reasonable definition. If you have some legal authority to the contrary, I'd be happy to see it.
As for defending the Dems' invertebracy, you'll have to seek elsewhere.
http://abcnews.go.com/WN/DOJ/story?id=3814076&page=1
Bart, you are really making me sick. Its one thing to argue that torture is ok in certain circumstances, but to argue that waterboarding isn't torture, when the military specifically trains their personnel on it in their training TO RESIST TORTURE??? If the police waterboarded you in order to induce a confession I'd like to hear you shrug it off so easily. You don't seem to appreciate the differece between you accidentally almost drowning as a child and intentionally being waterboarded -- imagine your aunt holding you under the water and surfacing every few minutes to scream at you to confess, maybe then you could appreciate it. How low can we go???
This is exactly why no such bill should be passed. Unless it's very carefully worded, it could lead to this very conclusion.
Bart, you are really making me sick. Its one thing to argue that torture is ok in certain circumstances, but to argue that waterboarding isn't torture, when the military specifically trains their personnel on it in their training TO RESIST TORTURE???
1) The US set the bar for defining torture very high and unenforceably vague. You may personally consider waterbaording generic torture, but it simply does not meet the statutory definition. If it did, why would the Dems be going through the motions of enacting new legislation to outlaw it?
2) There are many techniques being lumped together under the term waterboarding which are not used by the CIA.
An ex SEAL who trained baby SEALs in SERE school recounted how they would actually force water down the throat and into the lungs of their trainees, causing real rather than simulated drowning. This is by far the worst version and is the one setting off the kos kidz.
Reporters have had ex SF types perform another form of waterboarding on them where their mouth and nose is covered with a small towel and water was poured on the rage which would drip into the mouth and nose.
However, Kiriakou stated that CIA employed a third method where cellophane was placed over the mouth and nose of the prisoner and water was poured over it to simulate drowning without the introduction of water. In essence, the CIA uses a method on al Qaeda which is far less invasive than what we do to our own SEALs and SF in training.
Imagine your aunt holding you under the water and surfacing every few minutes to scream at you to confess, maybe then you could appreciate it.
There is no comparison. CIA subjected Zubaydah to waterboarding for 35 seconds and KSM for maybe a minute and a half.
Because apparently far too many people are under the mistaken impression it isn't.
Actually it is 1900: Back then, the US was waterboarding Filipino insurgents (until President Roosevelt ordered a stop to it). The British were also putting Boers in concentration camps. Apparently we have made less progress than you appear to believe.
But at least the British were trying and executing soldiers for summarily executing illegal combatants. In Bart's world, such actions would be a-okay.
Maybe I was just baiting you and your fellow travelers?
But Bill Taylor sez: 'I can also tell you that under torture anybody will eventually tell what the torturers want to know.'
That's from Taylor' memoir 'Rescued by Mao,' about his three and a half years as a prisoner of the Japanese. Not a military prisoner. He was a civilian.
The Japanese used the 'water cure' (NOT 'water boarding') on their prisoners. They didn't have to try it on very many before the rest (soldiers, Marines and civilians from several countries) decided to cooperate.
This comes from the 4th Geneva Convention on civilians. I'm not sure how a US Airmen is considered a civilian by anyone, but I do know there are some protocols that help define who the "above mentioned persons" are. It's a shame that someone grabbed some straw in an attempt to prove another wrong. Let's at least consider the Basic Rule for civilians:
Since KSM and Zubaydeh are combatants (though, JTF is confusing them as civilians probably because they didn't distinguish themselves from the civilian population while declaring Jihad) and targeting civilians; I don't see why anyone would think the 4th Geneva Convention would apply.
I don't know what you are talking about since I was referring to the 3rd, not 4th Conventions (I stay away from the 4th, because someone will point out that the U.S. has not ratified the 4th--although it has agreed to be bound by the principles contained therein).
The "above persons" referred to in the 3rd is anyone not taking a part in active hostilities, and that definition those in the custody of the combatants (detainees, POWs, arrestees, etc.). You can't participate in hostilities if you are sitting in a jail cell and behind barbed wire under guard.
That was the decision of the SC just a few months ago so I am not just talking out my ass (unlike Bart).
Anecdote is not the singular of data.
Prof. Rejali, who actually studies this stuff for a living:
Myth no. 2 Everyone talks sooner or later under torture.
Actually, it's surprisingly hard to get anything under torture, true or false. For example, between 1500 and 1750, French prosecutors tried to torture confessions out of 785 individuals. Torture was legal back then, and the records document such practices as the bone-crushing use of splints, pumping stomachs with water until they swelled and pouring boiling oil on the feet. But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse (an exceptional high). Most of the time, the torturers were unable to get any statement whatsoever.
And such examples could be multiplied. The Japanese fascists, no strangers to torture, said it best in their field manual, which was found in Burma during World War II: They described torture as the clumsiest possible method for gathering intelligence. Like most sensible torturers, they preferred using torture for intimidation, not information.
Try clicking links like the one above sometime, folks; you might learn something. I certainly have, since I took an interest in my country's torture fetish.
Leland - there is nothing in Geneva that I recall that says "if party A doesn't follow the GC, then no one has to respect the GC w/ regard to party A."
The question about KSM et al. as "combatants" is quite simple. Does KSM meet the description of an unlawful combatant in the GC?
(emphasis supplied)
It is patent that the persons who take an active part in hostilities are not protected under the provision you rely on.
I posted the foregoing before reading your last comment.
Your attempted distinction makes no sense to me--are you saying that no person who has been detained, no matter how active a part that person took in hostilities, can be tortured, executed, etc.? Your reading makes no sense: how can a person taking active part in hostilities who has not yet been detained be tortured or subjected to degrading treatment? By having Beastie Boys piped over the battlefield like The Ride of the Valkyries was in Apocalypse now?
Can you quote me the relevant portion of the Supreme Court ruling you cite?
Read it again "Persons taking active part in hostilities". 'Taking' is in the present tense. To emphasize the point it then goes on to list "including members of the armed forces who have laid down their arms". It includes people who were taking part in the hostilities but aren't any longer because they have laid down their arms, been wounded or captured.
Yes, the GC say that you can't torture anyone--big surprise. You also can't execute anyone "without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Another shocking revelation!
And of course you can treat people cruelly or even kill them if they are taking active part in hostilities. I don't consider shooting or trying to blow someone up very nice, do you?
ejo of course simply lies about what I have said (since the facts and the plain language of the GC are on my side).
I have addressed his ridiculous question numerous times and he just refuses to ignore the answer. I will do it once again, maybe it will finally sink in.
Being a legal combatant means that you can not be held legally responsible for doing the things prior to your capture that soldiers are supposed to do (like shoot at and kill the enemy). It also grants you extraordinary rights like the right to be treated as befits your rank and shop at the commissary, receive and send mail, and associate freely with your fellow POWs.
I'm sorry, the only place I could find your statement isolated in the way you quoted was in the 4th Convention. It is also in the 3rd Convention after the words that David Drake provided. The key part is that there is a definition for the "persons" that you are ignoring in order to make your claims.
Anderson wrote:
That's not my argument. My point is there is a classification of participants in a war zone, and those classifications are spelled out in many places. Those classifications determine treatment.
BTW, the Protocols would support JTF and Anderson's arguments, but they have not been ratified by the US.
I am not ignoring anything. You are ignoring the plain meaning of the GC.
a criminal defendant gets more rights than that-they get mail, they have a right to bail and pre-trial release, they certainly get more due process rights in terms of keeping them under lock and key (ie. miranda,4th Amendment, speedy trial, discovery, etc). you also don't address why we want to offer incentives for conduct we surely want to eliminate. that's why the term silly is so appropriate.
What crime has a POW committed? We are theoretically holding illegal combatants because they have committed crimes against the U.S.--even if it only involved shooting at U.S. soldiers on the battlefield in Afghanistan. Once they are declared illegal combatants we can try them for the crime of attempted murder or murder and sentence them to life in prison or even death for it. They can be confined in a regular prison cell and be forced to wear prison garb and eat prison food.
A POW must receive the same rations (adjusted for cultural considerations) and housing as a soldier of similar rank in the detaining power. He can not be isolated from other prisoners and the detaining power must not limit his access to books, musical instruments, educational opportunities, sports equipment. He must be allowed to retain his own clothes and wear his own uniform and if he chooses to cook his own food the detaining power must provide the POWs with kitchen facilities. As soon as hostilities cease he must be repatriated as quickly as feasible.
I could go on and on, but you really should read it for yourself. I provided a link above.
You said
Is your position really that as soon as a hostile enemy combatant (NOT someone who would qualify as a POW) is captured he gains the rights of a person not taking part in hostilities? If so, please cite me the Supreme Court case you claim to have held this.
What gives me the biggest problem with your position is that a rational military commander, faced with a GC interpreted the way you think it should be, will probably kill all hostile enemy combatants because (a) it's cheaper and safer, given our overwhelming battlefield superiority, than attempting to capture them;(b) they are nearly valueless as sources of information because they will have to be treated with kid gloves; and (c) they have the potential of tying up the already overextended federal court system with endless litigation.
And death seems to me a whole lot worse than waterboarding, regardless of whether you think waterboarding is "torture" or not.
This is really the heart of the controversy in this area. You believe that these people are simply criminals and should be dealt with under the criminal justice system; I believe that these people are much worse than criminals--they are waging war without following the rules of war, and therefore we can kill them and do anythinig else to them short of killing them so that they, others like them, and others who might be persuaded to join them will stop waging war against us and the civilized world.
I will grant you that the root of the problem here is that, without a uniform or the functional equivalent of a uniform, it is difficult to tell whether someone you've captured--even on the battlefield--is a combatant or not. But that difficulty does not warrant granting everyone captured out of uniform a status under the rules of war equivalent to that of a POW but with rights exceeding those of a POW, when at least some of them refuse to follow the rules of war because, under those rules, they will almost certainly lose, and lose quickly.
They won't be drawing that line if they get you in their hands.
Time to get serious. This isn't an assignment in law class. It has nothing much to do with law anyhow.
People like Bob-Ohio, who likes to ignore treaties when convenient and feeling powerful, and Harry Eager-to-torture seem to feel our enemies are the lucky ones, getting to let their ids run free. "It has nothing much to do with law anyhow." Yeah, that explains the torture.
Guys: the USSR is no more. The Nazis lost. The track record for brutality is more losses than wins. Whatever makes it attractive has more to do with personal fear than national security.