Mark Kleiman rebuts an argument of mine:
Eric Posner says that since the other parties to the Convention Against Torture are unlikely to do anything to enforce its provisions, Holder has full discretion to decline prosecution on political or policy grounds. But a duly ratified treaty is the law of the land, and Holder is sworn to uphold the law. Could he get away with not prosecuting, in the face of enough evidence to convict? Sure. But he'd be violating his oath of office.
Andrew Sullivan chimes in: “And unlike under the Bush administration, that is no longer actively encouraged.”
There are two problems with this argument. First, if my premise is accepted, that a treaty obligation ceases to have binding force when other states fail to comply with it, then neither the attorney general nor the president would violate his oath of office to uphold the law by failing to respect that treaty obligation. One might contest my premise, of course; but Kleiman does not.
Second (and more interesting), Kleiman’s argument rests on doubtful premises about American law. “Oath of office” arguments are derivative: they implicitly make claims about what the Constitution means. Here, Kleiman advances a syllogism, which I would reinterpret as follows: treaties are “the law of the land,” the president has the duty to “take care” that the law be executed, therefore, the president has a duty to take care that treaties be enforced. This is, at best, a controversial interpretation of the law.
For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).
Section 7 of the Convention Against Torture thus is not judicially enforceable. Could it not still be a “law” that binds the president? It could be; no court has resolved this question, no doubt because the question could never appear before a court in the first place. However, there are strong reasons for doubting that the president, and hence, the attorney general, have any constitutional obligation to “take care” that a non-self-executing treaty be enforced. It is a generally accepted proposition in foreign relations law that the president has the authority to terminate international treaties. President Carter did just that when he terminated a treaty with Taiwan, an act that led to a famous Supreme Court non-decision in 1979 that left his act undisturbed. Such a power cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Presidents also violate treaties. Consider President Clinton’s military intervention in Serbia in 1999, in violation of the UN Charter. Treaty violations at the orders of the president—and the U.S. has a long history of them—also cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Perhaps one might argue that President Carter and President Clinton violated their constitutional duties and hence their oaths as well, as did many of their predecessors and successors. But given the long history of presidential discretion in this area, it is a bit late to make this argument.
The Whitewater/Lewinsky fiasco was a sterling example of lacking prosecutorial discretion, and I think it's fair to raise the issue as regards, say, indicting Cheney, Addington, or even Bush.
Now, I think I might ulitmately disagree as regards the merits of pursuing the prosecution; but I can accept that people could disagree with me in good faith. It certainly wouldn't imply that Holder or Obama were violating their oaths of office.
Those standing on the outside may carp about the decision to their heart's content; but the decision making authority is vested in only one individual.
I don’t think I’ve ever seen the word “wit” appear in a sentence that mentioned either Mark Kleiman or Andrew Sullivan before (and certainly not both).
"Any person subject to this chapter who willfully and maliciously burns or sets on fire an inhabited dwelling, or any other structure, movable or immovable, wherein to the knowledge of the offender there is at the time a human being, is guilty of aggravated arson and shall be
punished as a court-martial may direct."
(Just a random example.)
I certainly think the CAT was written to minimise the political angle in the prosecutor's decision, but that simply reduces the amount of politics involved from the usual international law level to the usual criminal law level.
your explication appears to bind the state party, but not the competent authority (i.e., the prosecutor) to whom the case is submitted.
Yes, that settles it, as far as I'm concerned. Under subsection 2, prosecutorial discretion is not forbidden, and the "competent authority" is the prosecutor.
By Joby Warrick and Dan Eggen
Washington Post Staff Writers
Sunday, December 9, 2007
What we're dealing with was done under full congressional oversight. Would the various lawmakers involved be considered complicit under any prosecution?
Another problem. Many of the techniques described as 'torture' were used during the Waco standoff, including exposure to cold (by shutting off utilities) and exposure to loud noise. These are described as 'stress escalation techniques' by the FBI, and are described in various manuals.
after World War One there was a prohibition on the use of 50 caliber weapons against human beings. Such arms were to be only used as anti-vehicle and anti-tank arms. John Kerry likes to remind people of his statements post Vietnam of the use of 50 cals as a war crime under this old treaty. What he fails to mention is that every fighter pilot in WW2 who attacked troops in the field was guilt of this crime including Senator John Glenn and Test pilot Chuck Yeager. To have enforced that treaty after WW2 would have required the US to imprison every fighter pilot they had.
Mention was made of our intervention in Serbia and Boznia during the Clinton presidency. But wasn't the Russian invasion of Afghanistan also a violation of a UN treaty. Did Vietnam violate any rules when it invaded Cambodia in the late 70s, regardless of the fact it went in to put an end to the Killing fields. Did France and England violate any UN treaty when they seized the Suez canal from Egypt after Nasser nationalized it.
Many treaty's are obeyed until they come in conflict with the national interest, or national survival. Today treaty nations banning land mines are totally supportive regardless of the statement by the treaty's main supporter that they are on record as supporting higher casualty rates in there military forces then using land mines. But if they get caught in a war, and start loosing men in record numbers, you can be sure they will back out of that treaty faster then they got into it. Regardless of the required penalties the UN will require for withdrawing.
I realize this is a minor nit, but you forgot the 'prefix' "Conservative" when mentioning Sullivan.
That to me is the # 1 argument for prosecutions, but possibly a "truth commission" would have the same effect.
I suspect that such a commission would shock people by how little thought was expended in the first place on whether torture is even particularly effective, much less whether there are better methods of interrogation.
I think that depends on the specific facts, which we don't know much about right now. It's kind of hard to charge bystanders in the usual case, even enthusiatic ones, and there's also the speech and debate clause. That said, they certainly should be exposed.
I have. But only in the compound "dimwit."
MarkField wrote:
Absolutely. Eric Holder would have to investigate lawmakers who were briefed about the interrogations to determine culpability. If Nancy Pelosi could have stopped these interrogations, but didn't, there should be culpability. But that might not be up to Eric Holder. It might be up to whichever international treaty is trumping congressional authority.
What we're dealing with was done under full congressional oversight. Would the various lawmakers involved be considered complicit under any prosecution?"
Let's investigate and disclose exactly what happened in this regard. The facts will likely demonstrate something much less than "full" disclosure or congressional oversight which the R defenders claim.
Probable cause exists to believe that prisoners were abused, beaten, tortured, killed. A number of persons, including innocents, were kidnapped. Secret prisons. Endless detention without charges or trial.
Recent reports indicate that those responsible for this conduct were so careless in their brutality that they refrained from maintaining adequate files on those they captured and detained, apparently disregarding issues such as advancing charges, conducting trials or even thinking ahead to a resolution. It has been reported that some prisoners, identified as innocents after detention and abuse, were dumped in alleys.
Five years into this chapter — after many prisoners have been released after years of detention, while many others are still held after years without charge or trial, after some prisoners died violently and others were handed off to be tortured — it is a strange moral compass that points to using terms such as "overzealous" and "grandstanding" to disparage those considering holding those responsible to account for their conduct.
I'm still willing to consider steps short of criminal prosecutions — disbarment proceedings for a number of lawyers might be a good start, for example — but the "let's just forget about it" approach seems immoral. It is becoming hard to avoid the impression that what most bothers some who defend the abusers is that the abuse has been disclosed, questioned and stopped. Ironic, is it not, that they thereby embody persuasive arguments for strong legal action against those they strive to defend?
Assume for the sake of argument that American officials have, in the course of administring national security policy, engaged in acts for which they can be prosecuted.
It might still not be prudent to do this. It es easy to find things to prosecute government officials for. Republicans tried to impeach President Clinton for false statements under oath. He undoubtedly lied under oath, and was disciplined by his state's Bar for this.
If change of political party were to lead to a move to find crimes and prosecut the "outs." it would have undesirable effects on the political system that would outweigh any advantages. Read any summary of Pakistani history and you'll have an inling of what they are. Good people will eschew politics. The party in power will do anything to stay in power.
Is this how you want this country to run?
Let's investigate and disclose exactly what happened in this regard. The facts will likely demonstrate something much less than "full" disclosure or congressional oversight which the R defenders claim.
Or, we could just ask Nancy Pelosi. From NYT (12/10/07):
It seems that me that NP was properly briefed, and "eventually" got around to issuing a protest. This strikes me as a very weak response, given that she was one of very few people in a position to stop prisoner abuse.
This argument puzzles me. It seems to say that the solution to criminal behavior by governments is to ignore it so that we don't have criminal behavior by governments.
I could see if there were a distinction being made on the nature of the alleged crime. For example, we might give a pass to all malum prohibitum crimes, but prosecute only those mala in se. Short of that, though, the advice seems self-contradictory.
Citations, links, supportive material. Specifics.
Maybe. But I think most people will shock you on how little they give a s**t about any of it.
I agree with your read that Article 7 still allows an exercise of prosecutorial discretion, but I think the language does place some meaningful limits on the exercise of that discretion. First, the language of Section 1 requiring submission of the case to "competent authorities for the purpose of prosecution" indicates to me that any decision not to prosecute must be made by the Department of Justice, not by the White House. Second, the language of Section 2 requiring that the prosecutor make the decision "in the same manner as in the case of any ordinary offence of a serious nature" indicates to me that the decision not to prosecute must be based on prosecutorial considerations, not political ones.
In summary, I would agree that Article 7 allows the Department of Justice to decide not to prosecute because it concludes that it is unlikely to obtain a conviction, because it doesn't feel that the violation rises to a level of severity warranting conviction, or for some similar reason. I do not believe, however, that the Article allows the Department of Justice to decide not to prosecute because the White House doesn't wish to engage in political recriminations because that would not be treating these extraordinary charges the same as ordinary ones.
To my thinking the main question is the self-executing versus non-self-executing issue that Professor Posner raises. I lack sufficient knowledge to comment on that issue, but I look forward to being educated by others' comments. I'm also curious about Presidential authority to terminate treaties. I don't doubt Professor Posner's recital of the historical precedents. Nonetheless, I have trouble accepting the conclusion that a President can freely terminate something that required ratification from the Senate and is expressly made the supreme law of the land by the Constitution.
1. The Holder justice department undertakes prosecutes everybody from Bush and Cheney on down.
2. A major Islamist terror attack occurs in the United States.
Now, conspiracy readers, estimate the electoral consequences for Democratic officeholders.
You'll concede that there's a valid concern there, though, won't you? We don't want new administrations to engage in criminal prosecutions of their predecessors as political reprisals. At the same time, we also don't want new administrations to be detered from legitimate prosecutions for fear of being accused of engaging in political reprisals.
If I had the ability to re-order the United States government to my liking, I would solve this problem by making the Department of Justice an independent agency (i.e., I would give the Attorney General a fixed term that does not coincide with the Presidency and allow removal only for cause).
Google.
Agreed on both counts.
In fact, why stop at the Cabinet level? We should elect: the Pardon Attorney, the heads of every division at DOJ, and perhaps, at the State Dept., ambassadors to countries we really care about. That's the lesson I take from the Bush Years.
Stepping back from the legal argument, it seems clear that Posner, in predicting that the torturers will go unpunished and providing various legal justifications for not punishing them is indicating his wishes as well as his analysis. Posner, his fellow Conspirators, their commenters, and almost all of the Red team want the torturers to get away with it. That's as good a reason for sticking with the Blue team as I can easily think of.
I can't think of anything that Prof. Posner has ever written at the VC that would lead one to doubt Prof. Kleiman's inference.
And I would certainly welcome just one post from Prof. Posner on whether he thinks Cheney, Yoo, Addington, Tenet, etc. broke any laws, regardless of whether prosecution would be prudent.
(As for "fellow Conspirators," I don't think Prof. Kleiman has enough to go on, certainly not as regards Profs. Kerr, Post, and Benjamin. It's a big Conspiracy.)
I have.
Which is why I asked for specifics - i.e. specific cases, facts, circumstances. E.g., extraordinary extradition was practiced by Clinton and others, yet no hand-wringing, legal concerns were voiced. Waterboarding is not obviously torture, at least not across the board, which is why Hitchens was willing to subject himself to it, but was not willing to subject himself to other forms of torture. There's the attendant fact that the two or three instances acknowledged, wherein waterboarding was confirmed, it was also reported valuable information was obtained.
Otherwise, based upon your presumtively august protestations and concerns alone, that you're concerned with the truth of the matter (v. here, for an unrelated though salient example).
So again, citations, links, supportive material. Specifics. A specific case, or two or three.
Well, I can't imagine what would persuade you otherwise.
Note that Hitchens, in the article you mention, doesn't express having any doubts *before* he underwent the process. Nor does he say that he was willing to undergo it because he thought it might not be torture.
He does say, "Well, then, if waterboarding does not constitute torture, then there is no such thing as torture."
Also, there is the problem that one of the strengths of our country is that we have always had orderly transitions of power. Contrast this with Zimbabwe, where Mugabe apparently initially lost the last election, but intimidated and killed enough people that he was able to hang onto power. And why should he? Because when he and his people finally leave, they will be dead men if they remain in their country. Do we really want to give presidents (and Congress) and incentive to not leave power quietly and peacefully? (One alternative to that would be a blanket pardon, etc. to all appointed officials as a president leaves office).
Finding out what happened, whether torture "worked," whether it's effective, what else was tried -- these are measures that offer to strengthen our national security, and thus can't properly be the focus of blame.
(There are some of course who will find it blameworthy, but we already know who they are.)
I.e., again, he wasn't willing to subject himself to other forms of torture, was he?
N.b. as well that Hitchens, like SERE students, volunteered for the experience. What will you argue next? If you've voluntarily had sex before, then you can't be raped?
Waterboarding, forced standing, sleep deprivation, are standard methods of torture for those who wish to "leave no marks." People who deny that these are torture, in the face of the kind of evidence assembled in (say) Robert Conquest's The Great Terror, are at best naive; at worst, supporting and enabling torture and the regimes that practice it.
Let's have a show of hands. Who is willing to sacrifice their kids so an Al Qeada member isn't waterboarded? Don't like the question? Don't think that's the choice? Don't want to answer? Doesn't matter. That's how the public will see it. Would the public rather have Jack Bauer or Andrew Sullivan in charge of their safety?
That's because the majority don't have many of the facts, which is what a truth commission could provide.
Carried to its extreme, of course, why not rape KSM's kids in front of him if it might prevent another 9/11? Should we take a vote on that?
I am coming to believe that if President Obama's administration is not going prosecute anyone because of legal Gordian knots tied to a desire for political closure, he should openly use his plenary power to pardon all concerned. This should accompany a truth commission for more complete disclosure and repudiation of the Bush-era's legal malfeasance. Civil actions could remain on the table.
Sooner or later (after the commisson inquiry) the President could make a televised address, name names, make it clear that laws were broken, shoulder the nation's shame himself for purposes of moving on, and pardon the miscreants whether they agree or not.
I appreciate he's got a lot on his plate, but if Obama's just going to ignore the law, hell, I just had 8 years of that.
I'd have to know all the facts before making that conclusion. I don't know them.
A commission won't change anything. We had a commission on 9/11. I bet half the country wasn't even aware of it when it happened. I wonder what percentage of the public could name a single congressional hearing from the last year? From their entire lives?
Truth commissions are simply political struggles to determine who gets to define truth.
Am I being unfair?
Algeria? China? Cuba? Egypt? Indonesia? Syria? Pakistan? Russia? Rwanda? Serbia? the Sudan? Yemen?
Just asking.
* A compilation of information concerning "brutal interrogation" and apparent torture in U.S. custody, including accounts of five deaths
* A summary (with link to source) of a report addressing nearly 100 recent deaths of detainees in U.S. custody
* An overview of torture, rendition, detention, secret prisons and similar issues (particularly relevant information begins at page 33)
* An account of an innocent detained while changing airplanes in New York and shipped by the U.S. government to Syria to be tortured:
* A description of an innocent's CIA-conducted trip to a secret prison
* A report of a U.S. kidnapping in Italy followed by transfer to Egypt for electrode-on-genital sessions
* Any of the torture memos, authored by government lawyers, that have been (or are perhaps about to be) uncloaked
The "specifics" Michael B demands would, of course, be among the purposes of trials, disbarment proceedings or truth-seeking commissions that some appear to be striving to avoid. The information already available, however, would amply support a substantial number of charges and trials. People head to trial or prison every workday in the United States on a lesser evidentiary foundation.
A series of tit-for-tat intramural reprisals is not how I would want my country to be run. A program of torture, kidnappings, secret prisons, killings and limitless detention also is not how I want my country to be run, but that appears to be precisely how it was run by a bunch of scared, weak, immoral people who controlled the levers and powers of our government for a time. I am open to persuasive arguments concerning how to address the second problem (and diminish the likelihood of recurrence) without invoking the first.
That's because the majority don't have many of the facts, which is what a truth commission could provide.
Carried to its extreme, of course, why not rape KSM's kids in front of him if it might prevent another 9/11? Should we take a vote on that.
Opening Vegas lines on the various votes:
(1) Waterboarding KSM: 68% in favor
(2) Executing him without a trial: 79% in favor
(3) Raping kids in front of him: 12%
Seriously, how many Americans REALLY think al-Qaeda folks should be treated like everyday criminals? Or like outlaws with no protection? My guess is that there will be ebbs and flows in the count, esp. as either American body counts rise in the U.S. rise or the events fade farther into the past, but that the American zeitgeist prefers to hear about these guys being bombed by Predators than complaining in Gitmo.
Maybe not.
I think it almost always feels that way when you debate hot topics, whether legal or otherwise. If you want to have a civil discussion you have to treat participants as though you believe their analysis is not result-oriented, no matter how much you may suspect otherwise.
(This was the problem with some of David Bernstein's posts recently. Instead of writing a dispassionate analysis of the law, he was acting as a lawyer for Israel, slanting all the facts in their favour and making every and any non-frivolous argument to get them off. That's certainly a worthy practice for a lawyer, but not usually what one would expect to read on a legal blog.)
I suppose it's possible that someone, somewhere, did something like that. Such things and worse have happened in every war we've ever fought.
As for what we know happened: waterboarding of three prisoners, mutt-and-jeff interrogations, hot-and-cold rooms, stress positions, slapping, 24/7 playing of AC/DC, 24/7 lights on; well, cry me a river. Prosecuting such conduct would be retribution pure and simple and those who advocate that the winning political party engage in bloody revenge against the losing political party ought to be willing to embrace the consequences.
That would likely reduce the risk of misdirected brutality.
Umm... how about the opposition criticizing the supposedly illegal practices and persuading the electorate to vote them out? A simple but novel way to achieve your goals in a democracy.
If this technique is successful, the practices will be stopped, and the former officials will now have to take out their own trash and do their own food shopping. If unsuccessful, you can criticize the electorate for being insufficiently moral. But if the majority of the populace believes that a treaty is not in its best interest, their sovereign nation should consider whether the country should repudiate or ignore the treaty, appreciating that this has ramifications as well.
Under almost no circumstances should a democratically elected government prosecute former officials for policy decisions, however.
Well, the fact that U.S. Air Force and Navy aviators, and Army Special Forces soldiers, are waterboarded during their training is not evidence of nothing, or just that all these people in our armed forces are "crackpots." It is a piece of strong evidence indicating that this particular technique is not regarded as too extreme by those doing or undergoing the training. They don't pull out people's fingernails in pilot training, so there must be a difference. This is all a matter of degree.
And the fact that you find the argument to be "flimsy" is not, or not yet, grounds for criminally prosecuting or disbaring those who disagree. Count me as one who is quite content that, in certain limited cases, a few terrorist detainees were waterboarded by the Bush administration in order to get key information otherwise unavailable.
Notice also that Obama has left himself a convenient out -- the Gates study of exceptions to the new rules being applied -- so that he, too, will be able to do what is necessary, when the time comes.
Fuck you, Arthur. You and your presumptive snide and insults.
I asked for specifics, from your pov, because I wanted to deal with specifics and not merely generalities - and I wanted to deal with the specifics that you and others regarded as most salient or noteworthy, rather than the examples that I was aware of and that I would have picked.
It was that simple.
I haven't read anyone who advocates prosecuting former officials for legal policy decisions. The question is whether former officials should be prosecuted for committing crimes while in office.
I don't find that argument at all persuasive. Granted, my knowledge of the SERE program is very limited. (I've read in Wikipedia and seen a fictional portrayal of it on "The Unit." That's it.) Nonetheless, based on my understanding, the program is designed to test the limits of our armed forces to prepare them to resist torture if captured. The fact that a technique is chosen for this program -- especially a technique used in the higher levels of the program -- tells me that the technique pushes the limits of even our highest trained forces. That does little to persuade me that the technique is not extreme. In fact, it persuades me of the opposite.
Because I don't see elected officials as any sort of protected class, immune from the ordinary standards of behavior (except in a few instances provided in the Constitution).
I'm not opposed to phrasing it this way, but surely we agree that, say, rape or child molestation or contract murder should be prosecuted. The real question is whether torture falls into that category.
We did decide that in 1789, and for good reasons, but "settled" is too strong a word. After all, the reason we have an Art. V is that the Founders expected that the actual experience of government would lead to changes: "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided." Federalist 43 (Madison).
The sad fact is that appointments to AG over the last 50 years or so have been little short of disgraceful -- RFK, John Mitchell, Alberto Gonzales. And others have been little better. If experience is telling us that the existing practice doesn't work very well, we should consider changing it.
The fact that many (most?) states separately elect their AG gives me a good deal of comfort that changing the federal practice won't lead to the end of Western Civilization, even as it teeters on the brink due to the DH rule.
Not to pick nits, but this is true with one HUGE exception. You know, the one where casualties were almost equal to all other of our conflicts combined. I'd prefer not to go there again.
Let's begin with prosecuting current officials with crimes they committed before they were in office (Geithner).
You continue to do nothing more than arrogate to yourself presumptively unimpeachable bona fides. Iow, rather than argue rationally and anchored to specifics, you merely wish to browbeat those whom you may well disagree with, because your august credentials are not to be questioned.
I. Don't. Buy. It.
Hence, once again, the desire to argue/discuss while anchored to specifics and not merely generalities.
Hence, for example, I have little - in fact virtually no doubt that torture occurred as a result of at least some extraordinary renditions to other countries/governments - Egypt comes immediately to mind. But as well, that's why I had mentioned Clinton and presumably other presidents had engaged in extraordinary rendition previously, also noting there was no hand-wringing concern at that time - or presently - vis-a-vis Clinton.
Roosevelt and Truman did not turn over a handful of detainees to Egypt or Syria, they turned over more than a million German POWs to the Russians and French for use in forced labor camps. Tens of thousands died in French custody, and only a small fraction of the hundreds of thousands held by the Russians were released in the mid-50s. Worse, U.S. officials forcibly turned over to the Russians tens of thousands of non-German nationals (Cossacks, Tatars, etc.), captured in the West, in German uniform or not, who had opposed the Soviet regime; these the Russians promptly killed or sent into the Gulag.
I'm guessing that the FDR/Truman rendition of rendition stirs no great passions among those crying guillotine for the Bushies.
Despite the best efforts of those who engaged in the conduct, the reports have been available for years. There's plenty of foundation for trials, ample reason for additional inquiry.
If you genuinely were unaware of the information, Michael, I apologize. Anyone attempting to shield torturers or enable another round of brutality in the name of the United States of America, however, deserves only scorn.
Btw, Anderson, bringing up Conquest's Great Terror is more than a little strange. Some of the tortures used - e.g. by V.I. Lenin and his right-hand man Felix Dzerzhinsky, c. 1921/22 - rivaled such tortures as scaphism.
So whatever point you were attempting, it's not at all clear.
Rendition seems to have started with Reagan. Reagan and Clinton both did extraordinary rendition, but on a much more limited basis, compared with what Bush did:
BTW, torture and rendition are somewhat separate issues.
If any captive was beaten to death in U.S. custody, or tortured with electricity or fists, the identity of the President at the time (or the partisan position of the abuser) seems irrelevant. The guilty should be identified and punished (perhaps short of criminal conviction -- perhaps disbarment, public shaming, loss of benefits, loss of travel privileges, etc.). If the Clinton administration was culpable, justice is long overdue.
So everyone here arguing in favor of prosecuting Bush/Cheney/every other Republican we don't like is also in favor of immediately prosecuting Obama for his war crimes in Pakistan from last week, right?
[crickets]
[mumbling]
[nervous staring at feet]
[more crickets]
Thought so.
But I can't prove that, of course, just like I can't prove waterboarding is torture. After all, some people enjoy being told to fuck off, and pay dominatrices to do that and worse to them.
I happen to have handy a couple of Conquest quotes that suggest certain parallels.
Regardless: there are standard torture techniques which the NKVD and its colleagues made notorious, and you don't think they're torture. Fine. Be that way.
A hereby append my previous comment:
[crickets]
[mumbling]
[nervous staring at feet]
[complain about the civility of other commenters]
[more crickets]
Like what happened to American prisoners in American jails and prisons in the past.
How many elected officials were prosecuted for the abuse of American prisoners in American jails and prisons?
Not an area of the law I'm familiar with, but here goes.
(1) Pakistan is not "sovereign" over the NW Province/Waziristan. It does not exercise a monopoly of force; it cannot enforce its own laws. In fact, no one seriously doubts that Pakistan's ISI is funding the Taliban, our enemies. Pakistan is neither peaceful nor sovereign.
(2) Killing innocent civilians as "collateral damage" is not, in fact, a war crime. We do it in Afghanistan all the time, we've done it in Iraq. I happen to be one of the lonely few who believes that carpet bombing *is* a war crime, but we have yet to burn down Islamabad.
(3) Torture violates U.S. statutory law. I am not familiar with what statutes a Predator attack in Pakistan violates; perhaps you will cite them.
(Anyone actually interested in what we can do about Pakistan and Afghanistan should read The Inheritance by David Sanger, a survey of the challenges facing Obama from Iran, Afghanistan, Pakistan, North Korea, and China. A very depressing book, and I haven't even gotten to China yet. Bush had bad options coming in, and he managed to make things even worse. Whatever Obama does, succeed or fail, he won't be doing any childish "give in to all our demands and THEN we will deign to negotiate with you" crap.)
Because we are going to rendition terrorists, why not rendition them to Israel? I am sure they will be treated with kid gloves there.
Do you have a cite for this?
Carter: Iran
Reagan: 1983 - Beirut
G.H.W. Bush: v. Al Gore c. 1992, s/b amusing
Clinton: WTC '93, Khobar Towers, U.S. embassies in Nairobi and Tanzania, the USS Cole
And while not in the same vein, Obama's recent signal to Iran and other despots is not obviously propitious - v. Fouad Ajami and Victor Davis Hanson, also for additional perspective that should prove amusing: James Taranto (second story in).
Re, Gitmo itself, facts matter.
Specifics matter.
And btw, in point of fact all this is relevant to the originating post as it serves to reflect upon specific examples of what is reflected in the originating post in more general and legal terms.
Good advice even for a prosecutor, but nothing which would preclude prosecution. After all, Lincoln's sentence continues with "with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in...." And he didn't stop the war at any time until they surrendered.
Your efforts to defend torture are unpersuasive. There is probable cause to believe that innocents were tortured, and that captives were killed by the acts of their captors. A gulf separates torture of shackled prisoners from what appears to be civilian casualties in 'hot pursuit' military action. If any evidences supporting the asserted fear that the Obama Administration is setting its tone using pretext to slaughter civilians, it has not appeared in any credible context. Adopting former vice president Cheney's "dunk in the water" terminology either is an artless dodge or a worrisome signal of enormous moral blinders.
It also is unbecoming to hide behind the skirt of 'attacking any Republican you don't like.' Beating shackled prisoners, killing defenseless captives, kidnapping innocents, enabling torturers with legal contortions and similar conduct is the issue. What degree of moral bankruptcy would drag that into reflexive partisan territory? Plenty of Republicans have found the behavior repulsive and legally questionable.
I was not entirely offended by the direction of profanity toward me. I once with some notoriety declared in court that the Honorable Henry T. Fleming "should go right to f------ jail!" The passion of the moment made it seem appropriate at the time, and any regrets eased when Al Pacino eventually was nominated for an Academy Award for portraying my conduct (including the profane reference to Judge Fleming). Go figure.
Because those things are illegal or because you approve of them being illegal?
Because you don't think waterboarding is illegal or because you disapprove of it being illegal?
So, because a range of techniques were used during the Lenin/Stalin era, from making prisoners stand on tip-toe for extended periods to far more severe techniques, that did in fact rival scaphism - and then because sleep deprivation and prolonged standing were also used as interrogation techniques by the U.S., at least at some points, therefore the Bush/Blair=Stalin/Hitler motif makes sense.
Got it. And it must be true, because you've put it in print, you've authoritatively asserted that it all belongs under the rubric of torture in some general, unqualified sense - at least so for purposes of this current agenda. And it must be authoritative, otherwise, why the repeated harrumphs in lieu of an argument?
Thanks for the clarification, such as it is. Somehow though, I suspect neither you or Hitchens will be submitting yourself to scaphism or any number of other, more indisputable tortures.
(If anyone knows how many terrorist notches are on her prosecutorial record, and is able to correct any misimpression I have concerning that record, I would welcome a correction.)
You asked for a cite for the wholesale "rendition" of more than a million detainees by the U.S. at the end of WWII. These facts have been well known for decades, even appearing in the novels of British novelist Anthony Powell, so here are a few elementary sources. Paul Johnson, Modern Times (1983); Martin Gilbert, The Day The War Ended (2004); Nicholas Bethell, The Last Secret: Forcible Repatriation to Russia, 1944-1947 (London 1974); Niall Ferguson, "Prisoner Taking and Prisoner Killing in the Age of Total War: Towards a Political Economy of Military Defeat" War in History (2004).
I missed the bit upthread about "lefties" unwilling to call out the vices of FDR and Truman. Oddly, I was under the impression that it was us on "the left" who had condemned the roundup of Japanese-Americans (a roundup whose most notable defender of late, Michelle Malkin, definitely falls on "the right").
I also regret that our winning the war left us unwilling to acknowledge the war crimes committed in carpet bombing, most notably at Tokyo, Hiroshima, and Nagasaki. Our conviction that war crimes are what other countries do, has made it easier for present-day war criminals to behave as though it were absurd to call them out.
So yes, a "truth commission" would've been laudable.
High octane rhetoric and self-congratulation are an unbecoming combination. I am happy for you, though obviously not as happy as you are for yourself, that a famous actor won an award portraying you. It is especially good of you not to seek some way of dragging it in to the conversation when it is totally extraneous.
If you could climb down from your high horse for a moment -- though apparently not high enough for you to refrain from trashing those who disagree with you as enablers of torture -- I would appreciate answers to my earlier questions concerning the supposed criminal conduct of our prior Presidents in time of war, under your exacting standards.
Here is another
Perhaps they might ease concern about self-congratulatory excess. If additional humility is desired, I freely acknowledge that I would have been nothing -- literally -- without Norman Jewison, Barry Levinson and Val Curtin.
Meanwhile, in a less theatrical vein, if American presidents, or anyone else acting on behalf of the United States government, beat shackled prisoners to or near to death, held people without trial or charge endlessly, kidnapped innocents and shipped them to offshore torture shops, etc., they deserve unmasking, opprobrium and, perhaps, prosecution.
Just what we need, an army of independent counsels on witch hunts.
John Yoo placed a few exclamation points on his breathtaking lack of remorse and judgment today in the Journal. Every time he expresses his opinion, the prospect of formally holding him to account for his conduct becomes easier to accept, and the reputation of any law school that keeps him around takes another hit.
Yoo's article is getting some discussion at one of the rare posts at Balkinization to have open comments.
What is the specific probable cause?
Kyndra Rotunda's volume, Honor Bound: Inside the Guantanamo Trials, as with the other volume, Inside Gitmo: The True Story Behind the Myths of Guantanamo Bay, were offered on an informational basis. I've ordered them, have not yet read them, though they both came highly recommended and I've heard Rotunda interviewed, she was well spoken, highly knowledgeable and incisive.
Though I have little doubt your dismissiveness is as authoritative as Anderson's Bush/Blair=Stalin/Hitler standard, or whatever it's intended to be. Likewise, why would you want to confuse yourself with additional information? Harrumph!
Like Justice Scalia in Morrison v. Olson, I have reservations about the constitutionality of such a law. But the great merit of Starr's witch hunt was that after Lawrence Walsh's witch hunt, it generated bipartisan opposition to renewing the law.
It's not up to me.
I asked how you discriminate between your two categories of behavior. I take it now you're saying that prosecuting something from the first category wouldn't throw 200 years of peaceful transition of power overboard, but prosecuting something from the second one would. So, again, is that because you think the practices in your second category aren't illegal, or because since you don't think they ought to be illegal, prosecuting them would destroy our democracy? Or something else?
There is a long history of US courts treating waterboarding as a form of torture (pdf).
And aside from the question of whether or not waterboarding is torture, Crawford says we tortured (without even resorting to waterboarding).
Also, Bush's own State Dept declared that "submersion of the head in water" is torture. Both this and waterboarding are methods of using water to asphyxiate, so it's hard to figure why they wouldn't be treated alike.
Is that specific enough?
Also, there's Dilawar. A government coroner said we beat him so badly his legs were "pulpified ... I've seen similar injuries in an individual run over by a bus." Dilawar was beaten to death even though "most of us were convinced that the detainee was innocent." Obviously what Dilawar experienced is torture by any standard. And the penalties that were applied are so lenient that they can't be considered anything other than a joke. Three months in prison for beating an innocent man to death?
Taguba is the two-star general who led the first investigation into what happened at Abu Ghraib. He said this:
And there's this:
Those "abusive interrogation policies" started at the top, and they led to deaths like Dilawar's, and they led to what Crawford calls torture.
And this has been known for years. From 2005: government documents show multiple homicides that "appear to have resulted from abusive techniques used on detainees."
The legal arguments per se are not up to you, but moral/ethical categories always subtend legal categories.
Those moral, existential complexities are for each person, each participating citizen, to assess and judge for themselves whether or not legal implications are warranted.
You've posed questions, so you should likewise be willing to submit to, to answer the multitude of moral/ethical and existential complexities/questions that subtend it all.
For example, from one of juke's links:
"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."
Crawford qualifies her statements, as follows in the relevant link:
"Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said."
So, that's one specific example, concerning a Saudi national (all but four of the 9/11 hi-jackers were Saudi nationals) in the wake of 9/11, a Saudi national alleged to have been the wouldbe 20th hijacker.
So, LM, what is your moral/ethical argument in support of legal prosecutions?
Morally and ethically, however, the government has enormous power with few limitations. If Bush and his henchmen can violate the law with impunity -- and not just any law, but a law against TORTURE, for heaven's sake -- then a precedent is set for the commission of horrendous felonies without legal consequences. Cover your misdeeds up sufficiently to get reelected to a second term, and you're home-free.
But again, I'm arguing with someone who refuses to call torture "torture," so when you ask about morals and ethics, it's like we're trying to explain the color "blue" to someone born blind.
A bunch of other specific examples have been cited, here, here and here. The facts don't magically dematerialize just because you've decided to do this.
The various anti-torture treaties and statutes make no exception for people who are alleged to have been planning to commit a crime. They don't even make exceptions for people who were proven to have been planning to commit a crime. In fact, they don't even make exceptions for people who have actually been convicted of having committed a crime.
But it's fair for the defense to bring this up during trial, and the court can decide if this amounts to extenuating circumstances that favor the defendant.
Courts are constantly dealing with a "multitude of moral/ethical and existential complexities/questions." We have to trust them to handle it, because the alternative is lawlessness.
The same argument we apply when we prosecute thousands of ordinary people every year. People who commit felonies should be prosecuted. We can either do that, or embrace lawlessness. Or embrace the idea that some people are above the law.
But as anderson pointed out, we understand that you're not going to understand this.
Some context for all your unmoored, black and white talk of "torture," a term which can mean so many different things.
Here is the "torture" you refer to in your link to "Crawford" above: "sustained isolation, sleep deprivation, nudity and prolonged exposure to cold."
The subject of this treatment was Mohammed al-Qahtani, the one 9/11 hijacker who failed to enter the country. Crawford says of him: "There's no doubt in my mind he would've been on one of those planes had he gained access to the country in August 2001....He's a muscle hijacker.... He's a very dangerous man."
You say that waterboarding has long been recognized by courts as torture. The source you cite describes incidents from WWII, Korea, etc., in which people were subject to immersion or other forms of water torture lasting for hours, or even days.
The lead operational planner of 9/11, Abu Zubaydah, was one of several detainees who we have waterboarded. He broke, and began to cooperate, after 30 seconds. He has been the chief source of key inside information on the planning of the 9/11 attacks.
I'm suggesting that there are distinctions to be made, and lines to be drawn. Your argument recognizes none of those things. For you water boarding is torture, period, and must be prosecuted, even under a non-operative treaty that the "international community" treatsa as a joke.
But waterboarding has also long been used in military training. Are the trainers now to be prosecuted as torturers? If "sustained isolation" is also torture, do we prosecute all the wardens in prisons that have solitary confinement? Perhaps President Obama will need to be prosecuted when he sends the Gitmo detainees to the Supermax facilty in Florence Colorado, where the prisoners live in sustained isolation far more complete than anything they experienced at Gitmo.
Luckily for the country, the separation of powers and prosecutorial discretion are also part of our law. Luckily for the country also, the war in which we are engaged is not yet being conducted by lawyers, but by people who don't have a schoolboy's view of the world, which means that we still have some chance of winning it.
And in a quite cowardly manner, he posted his last response defending this inane view exactly one minute before the five day window for comments ended.
(Link here)
I didn't suggest you, LM, jukebox or any other individual has to do a thing. I more simply took note of the fact that moral/ethical and existential categories always subtend legal and more abstracted categories. I then took note of a specific case - the Muhammed al-Qahtani, wouldbe 20th hi-jacker situation - for purposes of further illuminating that fact.
Taking note of those factors is particularly important when largely sui generis situations manifest themselves, such as is reflected in 9/11 itself and as is reflected in the type of assymetrical warfare currently being waged against non-state and rogue state actors. The importance of such a focus is all the more evident since executives responsible for the safekeeping of a population are charged - Constitutionally and otherwise - with the execution of decisions in the real world, not in some rarified, abstracted, academic realm.
So you, LM and jukebox don't "have" to do a thing.
But a society, a responsible nation/state, does in fact need to come to terms with all of it - with both the moral/ethical and existential complexities and the Constitutionial and statutory requirements dictated by those complexities and contingencies.
You think schoolboys don't have the common sense to win a war?
I heard that the war against Napoleon was won on the playing fields of Eton.
I'm willing to answer, within reason, any question that doesn't presume the answer. Connecticut Lawyer didn't even ask the question. He just presumed the answer.
I'm willing to answer, within reason, any question that doesn't presume the answer.
Would you tell us what "five day window" you're talking about? Is that supposedly something VC does? Is it something bernstein does? If so, I've never seen it announced anywhere. Have you?
My experience is that bernstein closes threads when he feels like it. Here you can find an example of a bernstein thread that's already locked even though it was posted less than five days ago. Here and here you can find examples of bernstein threads that obviously stayed open for longer than five days. So please tell us more about this "five day window."
The coward is you. The key question I asked you in my last comment is the same question I had asked you twice before. You had plenty of time to answer that question, but instead you ducked it repeatedly.
It does appear to be something different than an editorial, and I explained why.
I've posted here many times, so presumably you have a long list of examples that substantiate your accusation. When are you going to show it to us?
================
mccourt:
There is no exception in the statute making torture permissible when the person being tortured is "a very dangerous man."
Humans lacking gills are not able to survive "immersion … lasting for hours."
And the legal history (pdf) shows that waterboarding is torture, even when it's not "lasting for hours." It's disingenuous of you to suggest that in every prior instance it was "lasting for hours," or that this is the reason why prosecution took place.
And you're always going to be able to find examples of someone doing something worse than what we did. But this is irrelevant, and your temptation to do so only indicates that your standards are too low.
And presumably you have a reliable source which indicates exactly how long all our waterboarding sessions lasted. I haven't seen that source, so hopefully you'll share it with us.
If you have a reliable source for the various claims you're making, I hope you'll tell us what it is.
No, because the experience of a captive is not comparable to the experience of a volunteer. This is reflected in the law, and it's also common sense.
Torture is a crime, by federal law (Title 18, Part I, Chapter 113C of the U.S. Code). Let us know if you think that US law is "a joke."
Crawford probably understands that as well as you do, and she says what we did falls on the wrong side of the line.
Crawford served as General Counsel of the Army (under Reagan) and Inspector General of the Department of Defense (under Bush I). Bush I appointed her "to the nation's highest military court in 1991 for a fifteen year term and [she] later served as its chief judge from 1999 - 2004." Then under Bush II she was selected to be in charge of detainee trials.
Please explain why three R presidents gave very senior positions to a person who (according to you) has "a schoolboy's view of the world." I know that Dubya is famous for hiring dishonest, incompetent people. But his daddy, and Reagan? Was that an issue for them, too?
Hopefully you'll explain how your knowledge of the situation is superior to hers.
I direct attention to the case of Manadel
I direct particular attention to the case of Manadel al-Jamadi (pages 11-12) — a "ghost" detainee who died after being punched, kicked, rifle-butted and hung by his arms while hooded — for the photograph of a beaming American giving a thumbs-up over the corpse. It is not reported whether the pictured American was the interrogator who, according to a government report, responded to the victim's pleas of "I'm dying! I'm dying' by stating: "I don't care. You'll be wishing you were dying." The victim's captives attempted to conceal their conduct by refrigerating the body and sneaking it out of the prison.
The other cases include deaths by strangulation, corpses with broken ribs and multiple bruises, suffocations, death by gunfire (shot from outside the locked cell in which the victim was alone), death attributed to being lifted by a baton placed at the throat while hanging by the arms, homicide by blunt force trauma, corpses missing bones that could have identified cause of death, etc.
Once again your links are misleading at best. Both threads have you claim "obviously stayed open for longer than five days" have no comments longer than 5 days and one hour from the original posting date. Quite a coincidence, eh? (Ok, I should have said 5 days and one hour instead of 5 days).
I just can't believe that you are still claiming this link is not an official New York Times editorial. Let's not forget your first argument in this regard: that it is not an editorial because it "is clearly labeled "Opinion." That has got to rank as one of the dumbest comments ever posted on this blog. When called on this, your follow-up argument was that what you really meant (but somehow didn't say) is that there was no additional "separate heading indicating that the piece is an editorial". To evidence this, you provided some recent links from NYT editorials.
Did you ever stop to think that maybe adding the title "editorial" is a more recent stylistic change. Did you ever think to check what the policy was back when the piece was written? Why don't you search the NY times for editorials on that date? Oh, what the hell, I'll do it for you - here. Please click on the links (2,3 and 4). Please let me know if you see the word "Editorial" anywhere. Do you really need the word "editorial" in bold to know what an editorial is? And if that piece is not an editorial, just what, pray tell, is it?? (For those following at home, please avoid the mistake I am making in debating JBG. You just lose brain cells arguing with a brick wall).
As for the question you claim I am cowardly ducking, you must be kidding. Let me quote the question for any really bored readers:
This is a blog. On the National Review. We need the word "opinion" (presumably in bold and italics) to be "warned" it contains opinion?? (Well, maybe you do - after all you can't even identify a standard editorial). Oh, just so you don't play your old game of semantics, I never claimed there is "only opinion" on the blog. However, I don't need a flashing neon light to realize that this link is an opinion. For goodness sake, it is titled: "Obama's Dow Numbers: Who Is Really Out of Touch With Economic Reality?"
This is a forum for discussion, so I'm not going to be drawn into some private correspondence with you, in which I am to answer a series of cryptic questions that you put forth in shorthand, to the bafflement of everyone else. I think this is appropriate, especially as you completely ignore the points I tried to develop, and the questions that I asked of you.
Nonetheless, I will try to answer your questions. I ask that you do the same and answer the questions I posed to you in my post above.
I never suggested anyone "had gills," as you well know; just that your own source recounts prolonged episodes of water immersion -- repeated for hours, or days -- as being torture (do you read you own cites?).
My suggestion, which I think is perfectly reasonable, is that the waterboarding that has been done to the three key al Qaida prisoners was far shorter in duration (30 secs in the case under discussion, about two and a half minutes in the case of Khalid Sheikh Mohammed), was necessary, was not torture, and doesn't rise to the level of some crime that should be prosecuted.
For you: "water boarding" = torture, case closed, call the police -- except that, now that I mention it, you allow that waterboarding of our own trainees is OK, because training isn't coercive, and therefore not torture after all -- spoken like a civilian out of central casting. What part of the statute you cite supports such a conclusion? I would also note that the outgoing AG, Judge Mukasey -- no one's partisan hack -- has declined to agree with you about waterboarding, but let's start building those gallows anyway.
1) You seem surprised that the waterboarding of Abu Zubaydah, one al Qaida's key operational planners, lasted for about 30 seconds, after which he broke and gave us important intelligence. You seriously want a source for this? I thought you were familiar with published accounts of this subject. Here is an example, from among many, available to you in the press:
"In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke [Abu] Zubaydah in less than 35 seconds."
'From that day on, he answered every question,' Kiriakou said. 'The threat information he provided disrupted a number of attacks, maybe dozens of attacks.'"
http://abcnews.go.com/Blotter/Story?id=3978231
BTW, you can contact ABC News reporter Brian Ross for the news that Khalid Sheikh Mohammed held out for all of two and a half minutes. Those brief moments allowed us to stop an attack on the Library Tower office builing in L.A.
I suppose the reporter's CIA sources could be lying, but then I guess we should install a permanent truth commission, perhaps with you at its head (?), to get to the bottom of everything.
(I note parenthetically, although I realize it matters not at all to your position, that this gentleman Zubaydah had been implicated in a 2000 terroist operation against the U.S. at LAX, had been sentenced to death in Jordan for his involvement in hotel bombings in Amman, and had been wounded by Pakistani security forces duriing his capture. By rights we should have left him in Pakistan, to their legally constituted mercies, or turned him over to the sovereign government of Jordan, to serve out, however briefly, his lawful sentence there.
Instead, we took him with us, treated his wounds, asked him some questions, and -- for 30 seconds -- insisted that he answer. That we knew he had an answer to give explains why he is alive today, and not left behind by us to rest in a well-earned grave in Pakistan or Jordan.
If your way prevails, the Zubaydahs of the future will not be captured by us; they will be killed, or left where they are, to much worse fates. They will be dead, and we will lack needed intelligence, but you, at least, will be satisfied. But of course, these real world consequences are all irrelevant to your fearless project of statutory construction.).
2) As to Ms. Crawford opinion that "sustained isolation" is torture; well, that is her opinion. Not being in thrall to authority as you suggest we should be, I happen to disagree with her. (I don't notice that she has followed her opinion up with your conclusion: that the incoming administration should hold a mass Eichmann trial for the outgoing administration). I also pointed out that thousands of civilian prisoners, tended by thousands of civilian guards and wardens, including in the very places (Leavenworth, Kansas, and Florence, Colorado) that the Obama administration is preparing for Gitmo detainees who cannot be released, are engaged in such supposed torture ("sustained isolation") this evening.
I repeat my question: should they be prosecuted under your rule? If not, why not?
What's the presumed answer?
But I thought your whole point was that I deliberately posted just one minute before the thread was locked. What's your point now? That I deliberately posted 61 minutes before the thread was locked?
I also cited an example of a thread that was locked in less than five days. Why are you failing to address that example? And when are you going to tell us where bernstein announced a "five day window?" And if he didn't announce it, what is your basis for claiming there is such a thing?
I thought they would make such a change across the entire site, even including older items, but you're right, they didn't. Thanks for pointing that out.
But how does that explain the other examples I cited, like a reference to a column in the Magazine section? Or an item by a TV critic? Are those also editorials? Are they news items? Obviously they are neither. And here's another example. Just as in the other examples, Goldberg cites NYT text without providing a link. And if you search for this text at NYT, you won't find it. Why? Because it's from 1975. But here we discover it was something written by a book critic in the Book Review section. Is that an editorial? Is it a news item?
And why did you claim that an item clearly labeled "Political Memo" was a news item? And why have you still not shown a single example of someone else complaining about the practice you're complaining about, even though NR obviously tolerates this practice? And how come you never substantiated your claim that the response to McCain was "overwhelming?" I demonstrated otherwise.
I don't understand the significance of it being "on the National Review." Is your point that NR only publishes opinion, and not news items? I didn't know that, but it's nice to find out. And are you claiming that if something is called a blog, it also must be opinion, and not news? I didn't know that either. Here is an example of Steyn treating an item from a NYT blog as if it were a news item. How come he doesn't know that (according to you) blogs only publish opinions, not news items? And why does he say "the Times seems to have missed the point," as if NYT editors were responsible for this item? Doesn't he know that (according to you) they are not responsible for something written by an "individual" (your term) blogger? Let's recall what you said:
It's nice that you know that. How come Steyn doesn't? And how come you can't find a single example of someone complaining about what Steyn and Goldberg both do, in this regard? And let's recall something else you said:
I just did.
A news item with a provocative title is still a news item.
=================
mccourt:
I think I responded to all your "points" and "questions." If I missed something, I hope you'll tell us what it is. Meanwhile, the one who is ignoring all sorts of questions is you. Like this one: what do you know that Crawford doesn't?
Before you made reference to "immersion … lasting for hours." That's not the same thing as "repeated … episodes." Please try to be careful to not claim that someone said something they didn't actually say.
Have you even bothered to read the statute, which I cited? It says this:
If someone is a volunteer they are not in your "custody or physical control."
That's a matter of opinion. But I guess you're claiming that Crawford is a "partisan hack."
Kiriakou admitted he was not present. What makes his account credible?
Where is the corroboration to this completely vague, undocumented and self-serving claim? Why should this claim be considered more credible than all sorts of other claims that emanated from the Bush administration, and which turned out to be false?
The link you cited does not make that claim. Are you going to show us a source? Transcripts of the Kiriakou interview are here (pdf, pdf). I can't find that claim. Can you?
Bush made a claim that various attacks were foiled. He didn't mention specifics. The specifics (like the claim that the Library Tower was a target) came from anonymous sources. Do you have a reliable source for these uncorroborated, undocumented and self-serving claims? Which came from an administration with a long track record of making statements that turned out to be false?
And I guess you don't realize that the claim you're making is chronologically impossible. The Library Tower attack was supposed to have happened in "mid-2002." KSM was "captured in 2003." Please explain how waterboarding him in 2003 "allowed us to stop an attack" that was planned for 2002. I guess torture is so powerful it lets us achieve time travel.
We already know that. But you still haven't explained what makes your opinion superior to hers.
Crawford didn't say that "sustained isolation" is torture. She said the combination of techniques we used was torture.
I didn't cite a link for that "claim," I referred you to ABC News reporter Brian Ross for it. Here is a cite: http://blogs.abcnews.com/theblotter/2007/09/ how-the-cia-bro.html
Buy why do I need to give you cites for things that are widely reported in the press. Haven't you read any accounts of the waterboarding of Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri? You are the one who is claiming they were tortured. Here, for starters:
"[CIA Director Michael] Hayden yesterday told the Senate Intelligence Committee: 'Let me make it very clear and to state so officially in front of this committee that waterboarding has been used on only three detainees. It was used on Khalid Sheikh Mohammed. It was used on Abu Zubaydah. And it was used on [Abd al-Rahim al-]Nashiri.'
Hayden said the CIA had not used the technique for almost five years. 'We used it against these three high-value detainees because of the circumstances of the time. Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent.'"
http://www.washingtonpost.com/wp- dyn/content/blog/2008/02/06/BL2008020602244.html
Then try googling.
I think we have run out the string on this topic.
It was not a secret, too big for that, although not officially acknowledged, apparently. Or perhaps activists did the usual thing of labeling something widely known as "secret" in order to ramp up the ominousity quotient.
There were a few principled lefties who opposed it. I can think of one, an Ivy professor and cleric, who'd been on the fringes of it during his service in WW II. He was later a critic of the Viet Nam war, saying Operation Keelhaul ruined any trust he had in government and so he could not trust the US in SEA. Had some other reasons, too.
I'll have another cup of coffee and maybe his name will come to me. First name was Harvey, iirc.
Anyway, those who object to the internment of the Japanese Americans ought to be proving their bona fides by telling us why Operation Keelhaul was okay. 'cause otherwise, they'd have been protesting that, too.
I repeat the analogy: debating you is like talking to a brick wall. It takes you forever to concede on obvious points (no intelligent person arguing in good faith would have continued to maintain over multiple responses that this is not an editorial), you throw up a bunch of red herring links and then accuse others of cowardice for not replying to them all. Have you ever thought that perhaps one reason I don't respond to everything you say is because I don't think I need to lose any more brain cells rebutting your inane comments.
But let me address jut a few. History shows that DB in most of his threads closes comments (automatically or manually) at roughly 5 days plus maybe some small margin. His posting was at Jan 24 at 1.26pm. Your last reply was on Jan 29 at 1.25pm. Wow, that is some coincidence. You were responding to a post that was more than four hours earlier. By the time I saw your response, which was about one hour after you posted it, I had no opportunity to reply. If you say this was pure chance and you have not noticed during your time here that 5 days is the normal (but not exclusive) practice, then I will take you at your word and apologize.
Again, it is incomprehensible that you maintain that this piece is news and not opinion. Just read it. The last sentence ends "Senator Obama needs to send out a correction immediately." No news piece ever (ever, ever) would end that way. My original point, cutting through all your obfuscation, sidetracks and red herrings, is that the NR link was an opinion of an individual blogger and should not be attributed to the NR as a publication. You incredibly disagree with both these assertions.
I realize you are most likely not a regular reader of the NR, but come on. You must know that they traffic predominantly in opinion. Please, spend 5 minutes reading the blogs there and honestly tell me if most of the postings are news or opinion. As an example, would you honestly say that this is a news piece and not opinion? Would it be accurate to say that the "NR endorsed Fred Thompson in the Republican primary"? Of course not. It is accurate to say that Jonathan Adler, a NR blogger, endorsed Fred Thompson.
Or are you sticking with your inane view that because the word "Opinion" doesn't appear in flashing neon writing, it can't be an opinion?
Thanks for the link. Now all you have to do is explain why an anonymous "former intelligence officer" making uncorroborated, undocumented and self-serving claims should be treated as a credible source.
"Things that are widely reported in the press" are almost completely useless when they are based on the kind of source I just described. I say "almost" because those articles are useful in this way: they demonstrate the way the Bush administration used the press to manipulate people like you.
So I ask you for "cites for things that are widely reported in the press" because I am taking into account the possibility that you might actually be able to present a citation to a reliable source for the various claims you're making. So far you haven't done so.
Naturally, and those accounts typically come from people like that anonymous "former intelligence officer." Which means they are to be treated with great skepticism. And Hayden's statements also need to be treated with great skepticism.
I'm claiming that torture was done because the Bush administration has admitted waterboarding, and waterboarding is torture. It's reasonable to accept the admission, i.e., it's reasonable to believe that waterboarding was done. However, it's not reasonable to unskeptically accept various self-serving claims that have been made, regarding how many were tortured, and how long the torture lasted, and the life-saving intelligence that was elicited.
I guess that's your way of letting us know that you're not going to take responsibility for making a completely bogus claim: that a person we captured in 2003 gave us intelligence that allowed us to prevent a terrorist attack in 2002.
======================
mzeh:
I made the incorrect assumption that NYT would apply the same format across their web site, even for older articles. And I admitted I was wrong as soon as you demonstrated my assumption was incorrect.
You're now claiming that the links to news articles are irrelevant. This obfuscates the fact that you moved the goalposts. Your original complaint was that I had not cited "an official editorial." As if the style I used was only acceptable for "an official editorial," and not acceptable for a news article. You later backpedaled and admitted that "it is generally acceptable for news pieces to credit the publication only." So the "news pieces" I cited became "red herring links" only after you decided to relocate the goalposts. And you moved the goalposts precisely because of the proof I cited: news article citations that showed that your original complaint was extreme.
It is indeed cowardice for you to fail to respond when I challenge your bogus claims, and when you ignore proof that contradicts your arguments.
You're simply repeating your earlier claim without showing anything remotely resembling proof. What "history?" When looking at an old, locked thread, there is no way to know exactly when the thread was locked. All we can do is see the time on the last comment. And in many if not most threads (both for bernstein and for VC generally), the last comment is stamped (at most) about 2-3 days later than the first comment. So I'm still wondering what evidence you've used to arrive at your belief about "5 days."
It's not just that I have not noticed it in the past. I still haven't noticed it. That's why I asked you to explain how you arrived at your belief.
No news piece in a legitimate publication would end that way. But a news piece in a rag could end that way. And NR is a rag. An example of this (proof that NR is a rag) is explained in detail here.
It is characteristic of a rag to take opinion and dress it up as news. Instead of clearly labeling opinion as "opinion."
Someone else who also does "incredibly disagree" is Mark Steyn. For some reason you're not addressing the example I cited. An example which you suggested I would not be able to find. You're also glossing over the other examples I cited, like Goldberg's citation to a column in the Magazine section.
I can safely say that I post here pretty regularly, and I had no idea that was the case. Nor do I have any idea what the closing rules are for any other poster.
Sure, but the rules about torture, that you care enough to find out about. What does that say about you?
According to the Constitution, treaties have the force of US law. Aside from that, torture is prohibited not just by treaty but also by federal statute.
I also like your Freudian slip.
I was wondering where mccourt got the wacky idea that torture in 2003 disrupted a plot in 2002. Then I noticed that Brian Ross of ABC (that darn liberal media), Bill O'Reilly and Rich Lowry of National Review all worked together to promote that bogus claim. On 9/25/06, Lowry published a piece called "Waterboarding Saved American Lives," and cited statements that Ross made to O'Reilly:
Did Ross clearly say that waterboarding KSM elicited intel which allowed us to disrupt the Library Tower plot? He is certainly implying that. Even though Bush himself had already said that plot "was derailed in early 2002." And even though KSM wasn't captured until 2003. And both O'Reilly and Lowry were very happy to help Ross promote misinformation.
One more in a long series of examples of how people like mccourt end up confused about basic facts.
So this is a nice chance for you to demonstrate that your concerns in this regard are sincere, and not just partisan posturing.
You claim that I have a "wacky idea" and am "confused about basic facts" regarding the importance of the information we have obtained by waterboarding Khalid Sheikh Mohammed. You say that KSM could not have given us any key information about the al Qaida plot to attack the Library Tower in LA, because KSM was not seized until early 2003, and the Library Tower plot was already "derailed" in 2002.
I think it is you who is confused — as well as discourteous. It is true that in 2002 the Malaysian authorities arrested one Zaini Zakaria who, it turns out, was one of 4 Asian members of an al Qaida cell recruited to carry out an attack on the Library Tower. Zaini clams he had withdrawn from his cell after 9/11. The plot was not yet close to execution.
According to his Malaysian interrogators, "Zaini apparently was never told what his mission would be," so he could hardly have divulged enough detail to stop the plot. He did not even know that the Library Tower, or even an American, as opposed to Australian, office building, was to be his target. So his arrest helped disrupt the attack, and begin it's unravelling, perhaps; but stop it? No. You will recall that al Qaida is persistent: the 9/11 attack was not its first attempt on the WTC. http://www.usatoday.com/news/world/ 2006-02-10-terror-plots_x.htm
In March of 2003, KSM was detained. After his waterboarding, KSM, who had conceived and planned the attack, divulged the operational details of and other personnel involved in the still nascent Library Towers plot, as well as the other planned "second wave" attacks. KSM's subordinate, "Hambali," who had recruited Zaini and the other cell members, was arrested in Thailand, along with two of the cell members, several months later.
I have given you the cite for the one key piece of information that guts your point. The rest you can easily find for yourself, if you care to inform yourself about the subject.
"Nascent" means 'just coming into existence and beginning to develop.' KSM was captured on 3/1/03. On 2/9/06, Bush said the Library Tower plot "was derailed in early 2002."
Please explain how the plot was 'just coming into existence and beginning to develop' in 2003, roughly a year after it had been "derailed." I notice you have said nothing to address Bush's statement.
And let's recall what you said:
So what's your point? That's when Bush said "derailed," he really meant 'derailed temporarily?' The plot somehow became re-railed after Bush derailed it? Did he have to keep torturing more people periodically, to keep derailing the same plot over and over again?
And do you have any proof for the various statements you're making, other than Bush's own uncorroborated, undocumented and self-serving claims? The same Bush who has a long track record of making statements that turned out to be false?
Zaini Zakaria was arrested in 12/02. So his arrest did not "begin [the] unravelling" of the plot. How do I know? Because Bush said the plot "was derailed in early 2002." So Zaini's arrest was apparently incidental to the "unraveling."
No one is claiming that Zaini "divulged enough detail to stop the plot." According to Bush, the plot had already been "derailed" before Zaini was arrested.
According to the article you cited, the plan was never "close to execution:"
Yet another reason to understand that your claim ("those brief moments allowed us to stop an attack on the Library Tower office builing in L.A.") is fiction.
There was no presumed answer. The question was posed in this comment, directly upthread, three days ago. It's not a true/false or multiple choice styled question, it's one that pertains to the overall political, social, historical, existential, moral and legal realities¹.
1 - realities, for purposes of this discussion, can be defined as: that which exists outside of and independent of mind
You lost me after the first sentence. Anyway, here's the question you asked:
The essential part of the answer it presumes is that I support prosecutions. Do you disagree?
But what do you support prosecutions for? For renditions that in turn led to torture, during the Clinton years? If so, did you call for prosecutions against Clinton then? Presently? If not, why not? Did you call for investigations then, to attempt to find out the extent of renditions, torture, secret prisons and other, presumed abuses used by Clinton and his admin.?
I guess I didn't make myself clear. When I said
I was asking if you don't agree that your question presumes I support prosecutions. I think it obviously does, as confirmed by your repetition of that presumption in your last comment. I wasn't saying I support prosecutions, because I don't. What I support is an investigation by a non-partisan or Republican prosecutor, who would then decide whether to bring charges.
And the "orders of magnitude" you're suggesting, are you saying Bush II did so pre-9/11, or post-9/11? Surely the latter, yes?
From a Constitutional perspective and Clinton's oath of office and his duties as CiC, is Clinton susceptible to legal charges of gross negligence, for appropriating the so-called "peace dividend" into domestic areas, when it might have been better re-apportioned to defense and intelligence gathering? Given the foremost duties of a president, as CiC charged with national defense, this seems like a far more credible Constitutional/legal concern - negligence, arguably gross negligence - than areas, in the wake of 9/11, wherein some excessiveness is argued, in part to correct Clinton's negligence. (E.g., imagine if Clinton had directed NSA, FBI and other budgets, together with coordinated legislation, such that their technologies and intel would have been much better integrated. 9/11, as a recent PBS documentary suggested, may well have been prevented.)
That last graf is largely intended rhetorically - since Clinton is innocent by virtue of his party affiliation - but it does serve to hi-light the existential/practical concerns, the specifics, the realities, rather than focusing almost exclusively upon legal and other abstractions.
Hence the earlier emphasis, that reality is that stuff that exists outside of and independent of (your and others') mind. Hence the still earlier request, five days ago in this thread, for specifics.
For his first 234 days in office, this was Bush's brilliant idea for how to fight terrorism: SDI. On 9/9/01, Rummy argued that SDI was more important than counterterrorism.
I once did a very thorough analysis of all of Bush's public statements, in those 234 days. In the period pre-9/11, Bush almost never mentioned OBL and AQ, despite the recent attack on the Cole. The folks who killed 17 US sailors were mentioned less often than Dubya’s two dogs, pet cow, and cat. OBL came up exactly as often as the Navajo code talkers. Bush mentioned black music and safe boating more often than he mentioned OBL and AQ. Six times more often, to be precise.
So I guess Bush is "susceptible to legal charges of gross negligence."
I'm saying I didn't call then and I'm not calling now, whether for Bush or Clinton. I said what I'd approve of now, what I would have approved of then, and coincidentally, they're consistent.
Before 9/11, Bush didn't believe in nation-building, invasions without exit plans or, as jbg suggested, the warnings from Clinton and others that his top security concern should be AQ, so yes, obviously, after 9/11.
What you requested five days ago is that I justify your straw man, which I've been telling you for five days is not my position.
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