Shouldn't we wait until noon tomorrow to have this discussion?

Its not that I doubt everything the AP credits to unnamed presidential advisers, but.... Ok. You got me. It is that I doubt everything the AP credits to unnamed presidential advisers.

According to AP, President Bush has commuted their sentences.

Its not that I doubt everything the AP credits to unnamed presidential advisers, but.... Ok. You got me. It is that I doubt everything the AP credits to unnamed presidential advisers


Look on the bright side: It's more trustworthy than anonymous blog commenters.

Great, I come here to help, and Orin is questioning my credibility before I even click the 'Post' button... :)

News too soon?

I have it on good authority that Bush will pardon Orin Kerr for fraudulently acquiring free beers.

Total number of free beers acquired from VC readers since that free beer post over a year ago: Zero. Even more proof that you can't trust Anonymous Blog Commenter(s). Hah!

I have it on good authority that Bush will pardon Orin Kerr for fraudulently acquiring free beers.

Total number of free beers acquired from VC readers since that free beer post over a year ago: Zero. Even more proof that you can't trust Anonymous Blog Commenter(s). Hah!

Conspiracy to acquire free beer?

"Bob R:

No one is claiming immunity from scrutiny, but the Dems would be well advised to think twice."

The investigation I'm talking about is one of fact that would hope to elicit what was done by various GWB operatives. Once the facts are known, and only when they are known, will it be appropriate to apply the facts to the law to make prosecutorial decisions.

Conspiracy to acquire free beer?

Overt act?

Overt act?

Posting a blog comment fraudulently implying that someone owed him a beer.

Bob, why is the “exact” definition of torture unclear when we have a federal statute that expressly -- and clearly -- defines torture in 18 U.S.C. § 2340? Among other things, the definition includes intending to inflict “severe mental pain,” which includes “the prolonged mental harm caused by” the “threat of imminent death.” We know the administration water boarded people and that water boarding is intended to make the victim think he is going to drown. It’s torture. Many executive branch officials and high-ranking members of our military have said it is torture. Indeed, the United States’s prior position was that it’s torture.

There should be little doubt that anyone who authorized water boarding violated the law. Whether they should be prosecuted is, of course, a thorny political and moral question. But lets not hide behind the alleged opaqueness of the law. Lets also not hide behind their alleged good intentions. Lots of criminals do what they do for entirely understandable reasons. People illegally come into this country to work to feed their family. Last time I checked, that good intention is not an excuse to criminal behavior. (And if the President and his henchmen can meet the legal defense of necessity, then let them present that argument to a jury.)

Shouldn't we wait until noon tomorrow to have this discussion?

Its not that I doubt everything the AP credits to unnamed presidential advisers, but.... Ok. You got me. It is that I doubt everything the AP credits to unnamed presidential advisers.

Agreed, although I suspect that since tomorrow will be 24-hour coverage of the “historic” Obama inauguration, any news about any last minute pardons and/or clemency for members of the Bush administration will be pretty much buried.

Among other things, the definition includes intending to inflict “severe mental pain,” which includes “the prolonged mental harm caused by” the “threat of imminent death.” We know the administration water boarded people and that water boarding is intended to make the victim think he is going to drown.

Actually it makes the body act like it's drowning, but with the material between the person and the water there's no reason to think they're intent is to actually kill them. I see more promise in the first provision "the intentional infliction ... of severe physical pain or suffering" and calling expert testimony to establish the severity of the pain.

In either case it's a matter for a jury to decide, if prosecuted, and of considerable doubt whether the law was violated. Unless, of course, you have some proof that imminent death was actually threatened or a scientific reading of the severity of the pain they experienced so we can skip the trial and go straight to sentencing.

Bob, just because people claim something is unclear does not mean something is unclear. This is a political issue, so it’s not surprising that people (mostly non-lawyers) are claiming the legal issues are inherently vexed. Lots of articles do what you did: claim there is unclarity about the law and leave it at that. Obviously, your comment was in a blog post, so I’m not claiming you should have cited the controlling law. But how many stories talk about the “unclarity” of the law and then fail to even note the controlling definitions? What is so unclear about the definition provided above? I’m sorry, but I don’t take seriously legal analysis in “newspapers and magazine articles.”

Plastic, the law doesn’t require the person have the intent to kill the victim; it merely (and sensibly) requires the person to have the intent to make the other person think they’re going to be killed.

Luagha, if you’re being water boarded as part of a training, don’t you think you’d view the water boarding differently than someone who is being water boarded in an attempt to gain information? Obviously, in a training environment, you know on some level that your trainers are trying to kill you. If you’re being interrogated, you don’t know that. Indeed, that’s why it’s used.

GV, the relevant statute reads, in full :

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

I don't think C fits, as I'm currently unaware of any actually dying from waterboarding.

Its interesting to see there are so many well-meaning but clueless brainiacs thinking if "we could only put some Bushies in prison for their supposed war crimes" they would solve most of humanity's ills. Never mind that it would rip the nation asunder for a decade and cost "the one" so much political capital he would probably do a Carter in 20ll - if he lasted even that long. It just sounds like a good thing to do. Let's do it! Everybody that's somebody agrees with us. Who cares how the flyover country folk think?

It’s the same with water boarding. The point of water boarding is to simulate drowning; in other words, the individual believes he might die from drowning.

No. The individual being waterboarded knows he has plastic covering over his mouth and water isn't getting in. It triggers instinctive reactions to expel the water (that isn't there), but that's not the same as believing he might die from drowning.

Nick

No. The individual being waterboarded knows he has plastic covering over his mouth and water isn't getting in. It triggers instinctive reactions to expel the water (that isn't there), but that's not the same as believing he might die from drowning.

Yes, so instead of believing he is drowning (dying by having the lungs fill up with water) he merely feels as if he is drowning but knows that he is actually being suffocated by the plastic wrap covering his nose and mouth. Waterboarding does "simulate drowning" but actually involves suffocating someone with plastic wrap, a point that isn't made nearly often enough.

It's telling that when Christopher Hitchens signed up to be waterboarded for his article on the procedure, he had to sign a waiver to agree to not hold his handlers responsible in the event of injury or death. For the lawyers, that's probably standard boilerplate CYA procedure. But obviously, practitioners in the real world feel it is necessary.

1. People did die under torture while in US custody. Don't try saying he was the only one.

2. As Eric Boehlert said

I mean my goodness, what kind of zealots investigate the actions of presidents after he leaves the White House? What kind of partisan fanatics call for hearings about a president months after he has exited ?

Oh, you mean those kind

(Not that I think the Bush Administration would admit it if it did accidentally kill someone.)

Because the Bush administration has been sooooo good at keeping secrets...

The point is the detainee has no reason to believe that he isn’t going to be shot and likely believes he will be. It’s the same with water boarding. The point of water boarding is to simulate drowning; in other words, the individual believes he might die from drowning.

And if the person with a gun pointed at them has clearly and completely demonstrated that the firearm is cleared of any and all ammunition?

I'd consider that a violation of a few of Jeff Cooper's rules, but I also doubt it would match the ability, opportunity, intent test for self-defense.

Actually, the US has routinely prosecuted persons for waterboarding, both US and enemy personnel, so the difficulty is avoiding prosecuting the offense. US Army personnel were prosecuted the Spanish-American War (including a general); the Japanese during World War II; and Americans during the VietnamWar (article includes photo of NVA being waterboarded).

Indeed.
But waterboarding isn't the only thing that is considered torture.

Let's see what Bush's 'convening authority of military commissions' says on the subject.

Link

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

Sleep deprivation, forced nudity, sustained isolation, etc., are all 'procedures calculated to disrupt profoundly the senses or personality' as stated in statute quoted earlier.

I doubt the incoming administration will investigate anything because Obama's got more pressing issues to worry about, and because of the political resistance from the dead-enders who think 24 is a training film featuring instructor Jack Bauer.

If Obama and the Democrats decide that they want show trials, said pardons will be declared invalid by some court.

Not in a million years. The pardon power is absolute and irreversible.

Let the inquisition begin! If the Dems are foolish enough to try and prosecute the people who were out there trying to protect us, so be it.

General rule - when commenters use the terms "operatives" or "henchmen," they have telegraphed their inability to have a discussion.

If I used the term "Democratic operative" or "liberal henchmen" in a discussion, I would understand that I had given the game away. This is not a mere technicality, but an indicator of the writer's thinking. If a writer must refer to people as "henchmen," not in sudden anger but in reflective discourse, it is an announcement that the issue being discussed is a mere smokescreen for their actual intent.

That said, they might still be correct. They may be worth listening to for something useful to hear. But there is absolutely no point in discussing anything with them. They can't hear.

Bush Jr ain't going to do nothing that doesn't make his family money.

The BP Agent thing must have been hitting the Bushes in the pocket book.

A little story about Bush Sr. During Gulf War I the press was doing stories about how our enlisted families were short on food money (long story, but back then a big chunk of lower enlisteds family pay was in the form of ration payments which stopped during deployments).

The kuwaiti royal family responded by ofering the same deal arab enlisted troops were getting, a ten thousand dollar per head cash bonus.

Bush Sr went on armed forces TV and radio. 'Of course I turned it down, you are not mercs...'

The second Bush's butt was out of office he flew over there to pick up oil contracts worth more than the money he screwed the troops out of.

All money for the Bush family, no money to feed troop's kids. That's the Bush way.

gran:

So if, before you waterboard him, you "Mirandize" a terrorist so he knows you're not trying to kill him... then it's OK to waterboard?

That comment would be something other than extremely silly in a world where everyone told the truth 100% of the time, and everyone therefore had complete and absolute trust in 100% of the statements they heard from 100% of the people around them. Including their sworn enemies.

Let us know when you discover that world.

By the way, if you actually did manage to convince your captive that you would absolutely not harm him or kill him, under any circumstances, do you think that might possibly interfere with your ability to get him to say the things that you're trying to get him to say? The whole point of an abusive interrogation is to get the person to believe that they will suffer great harm if they don't blurt out the correct words.

===================
idiot:

If I used the term "Democratic operative" or "liberal henchmen" in a discussion, I would understand that I had given the game away.

Just for fun, I googled "democratic operative" at various places. This is how many results appeared:

Power Line: 82.

Weekly Standard: 51.

National Review: 100.

there is absolutely no point in discussing anything with them. They can't hear.

I was hoping you would eventually notice that.

Amazing -- he's out the door today and yet the BDS feverishly continues to fester and metastasize.

box,

If your aim is to make a terrorist detainee feel 100 percent secure in his safety, then you'll at minimum be required to hand him a loaded AK-47 and release him into the Pakistani tribal lands. Behind-bars custody is something less than that obviously.

So if your aim is to make terrorists feel 100 percent secure in this or any case, you're certain to miss your aim. The Great Satan eats their children, remember.

So then, our pre-waterboarding "Miranda" notification to the terrorist is just as likely to quell his insecurity as about anything else reasonable, isn't it? Particularly if our Mirandizing process is robust (video representation, technical experts involved, interviews with past waterboardees made available, etc.).

Now, I doubt the executive will ever go this route. They'll simply send terrorists to countries with less concern for terrorists' feelings, where comprehensive interrogations will be made.

I believe the thinking here is that if Obama and company are stupid enough to pursue these sorts of prosecutions, then they will be severely damaged politically. Sort of a rope-a-dope situation.

Bush certainly isn't doing Obama any favors. If he had pardoned people, Obama could have said how troubling that is and how he would really like to do something but his hands are tied thanks to the evil Bush. Now he can't say that. He will instead have to explain the facts of life and national security to his more derranged supporters. Or in the alternative, waste his political capital rehashing the arguments of the last 8 years and trying to convince the mainstream voting public that torturing KSM or the Al Quada agent responsible for the USS Cole bombing is really a crime worth prosecuting and also explain why it was a crime for Bush and Company to do it but not a crime for the Democrats in Congress to know about it and support it.

Honstely, I think many Democrats don't want the responsibility of government and would rather go down in flames taking out their vendetta on Bush. At least then they could claim they lost the 2010 and 2012 elections in the name of the rule of law while being relieved of the burden of governing. Obama is definitley not one of those and would like to stay in power. For this reason, he will chose to do nothing leaving his cult followers to weep over the lost promise of the Obama era.

the law doesn’t require the person have the intent to kill the victim; it merely (and sensibly) requires the person to have the intent to make the other person think they’re going to be killed.

There's been no proof of such intent. The soldiers water-board in order to cause enough physical discomfort so as to elicit information, and until there is evidence that someone dies, the prisoners were made to believe someone died, or the soldiers made some threats or warnings about dying there's no reason to believe there was ever the threat of death. I still believe the severe physical pain route makes a stronger case without assuming facts that even if present would be difficult to prove.

According to Malcolm Nance, water enters the lungs. I realize Kiriakou (pdf) said something different, but you should explain why you believe that Kiriakou has complete and perfect knowledge of what we actually did. By his own admission, Kiriakou was not present during the waterboarding.

If water does in fact enter the lungs (what most people would term drowning and not water-boarding) then that's a matter of fact for the jury to determine. If proven, I would agree that drowning, even with the intent to remove the water afterwords, would carry a significant expectation of death.

I certainly don't claim to have any sort of perfect knowledge or even authoritative knowledge of water-boarding, I'm just using the common understanding of the term (which could well be wrong) to form my opinion on the subject.

Sorry, I misremembered. I thought the Detainee Treatment Act of 2005 would have modified that section and the metainformation provided on that site seemed to reinforce that.

Well yeah, box, we're all into the rule of law.

But you've asserted that coercive interrogation becomes torture if the terrorist feels that they might be under physical threat.

So it follows that if we take reasonable steps to inform the terrorist that there is no physical threat from the coercive interrogation, then it removes your ID marker for torture, no?

anomdebus:

Sorry, I misremembered.

Thanks for clarifying.

I thought the Detainee Treatment Act of 2005 would have modified that section and the metainformation provided on that site seemed to reinforce that.

I wish I knew what "site" you were talking about. Also what "section." Maybe you'll clarify your clarification.

==================
doyle:

I guess some people just can't see the fun any more when someone else plays the games they do.

It's not really the same game. I was doing actual google searches, and providing the link so anyone could see the result. You, on the other hand, were posting results that made no sense, and not really telling us how you got them. And still not telling us.

And it's not that I "can't see the fun any more." On the contrary. Watching you post phony results (and duck when challenged) is even more fun than looking at real results.

==================
gran:

we're all into the rule of law

If you're "into the rule of law," you should explain why you're making excuses for lawlessness.

you've asserted that coercive interrogation becomes torture if the terrorist feels that they might be under physical threat

I hope you'll show us where I allegedly said that. If I said that, why aren't you quoting my text?

So it follows that if we take reasonable steps to inform the terrorist that there is no physical threat from the coercive interrogation, then it removes your ID marker for torture, no?

No. The threat of imminent death is only one of several 'markers' for torture. If you had bothered to read the statute (I already cited the link), you would already know that. And since you're "into the rule of law," here's a good place to start: read the law.

==================
nick:

do you actually believe that forced nudity counts as torture?

Read what Crawford said:

techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, [resulted] in a "life-threatening condition."

So it was a combination of factors, not the nudity alone.

If you actually read his piece carefully, he seems to be assuming that what was done to KSM and al-Zubaydah was the same procedure (dubbed The Barrel) used by the Khmer Rouge and Viet Cong

What he says is a little more complicated than that. He says that he is "a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California." He says "I have personally led, witnessed and supervised waterboarding of hundreds of people." He also says "once at SERE and tasked to rewrite the Navy SERE program for the first time since the Vietnam War, we incorporated interrogation and torture techniques from the Middle East, Latin America and South Asia into the curriculum." He also points out what's been reported elsewhere, "that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA."

In other words, he says the SERE technique was based, in part, on what was "used by the Khmer Rouge and Viet Cong." And the CIA technique is based on the SERE technique. So I don't think he's claiming that the CIA and Viet Cong techniques are identical, but he's describing the historical relationship that connects one to the other.

He wasn't even at the detention facilities in question, and wholly lacks personal knowledge.

We haven't heard from anyone who has "personal knowledge" of what we actually did. That's a problem, and it needs to be solved.