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Definitions and defaults in torture:

Torture, as prohibited by U.S. law, is treatment that inflicts "severe physical or mental pain or suffering." But how do we know when a particular interrogation technique imposes "severe physical" or "severe mental" pain or suffering?

To answer that question, the 2002 Bybee memo released Thursday relies heavily on the lessons learned from a U.S. interrogation training program for military personnel called Survival, Evasion, Resistance, Escape (SERE). In SERE training, U.S. military personnel have been subjected to the very techniques proposed for suspected Al Qaeda agents — including the most extreme of the techniques, like extended sleep deprivation and waterboarding. The discussion is at pp. 4-6 in the Bybee memo. Basically, the memo says that the CIA has concluded based on consulting with SERE experts that these methods have caused no "severe physical or mental" harm to U.S. military personnel subjected to them.

There's a lot more in the memo but, frankly, it seems to me that's the heart of it. It's not really a "legal" conclusion calling for the specialized training of a lawyer, in the sense that you can find it in a statute or a binding precedent, but an experiential and empirical one.

So my question is this: how relevant is the SERE experience? Let's assume it's true that U.S. personnel in training programs have suffered no severe mental or physical consequences, and let's assume the enemy detainee would be subjected to no more severe version of the same techniques. (The latter assumption turned out to be untrue: waterboarding as used by the CIA was more intensive than that used in SERE training, according to a May 10, 2005 Steven Bradbury memo to the CIA, see p. 41 n. 51).)

It's one thing to know you are part of a controlled training program administered by your country's own personnel who have no interest in killing or permanently damaging you, and also to know that however awful it is there will be an end of it. It's another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former "interrogator" you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.

Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?

Bybee doesn't even seem aware of these differences, much less account for them in his memo. To his credit, Bradbury saw the limited relevance of the SERE experience in his 2005 memo to the CIA, at p. 6:

Although we refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

Of course, despite the weakness of the evidence available, Bradbury also concluded that the proposed techniques -- including waterboarding -- were not torture. But at least he was candid about it.

There is some discussion of this in the comments to Orin's post of yesterday, including from at least one commenter who implies personal knowledge of SERE. It is claimed that in SERE the trainee loses any sense of safety, time, or perspective. It's hard to argue with actual experience, but if you haven't been through enemy interrogation you can't really know how much worse it might be than SERE using the same techniques. So you can't know how much more likely it is to inflict severe mental pain or suffering. And Bybee acknowledges that there is "no empirical data on the effect of these techniques, with the exception of sleep deprivation." p. 6. (And the "empirical data" for the long-term physical and mental effect of sleep deprivation up to 11 days, the authority sought by the CIA in 2002, consisted of one case.)

With no statutory guidance, no precedent, the opinions of a few CIA consultants he did not personally consult and whose possible institutional and other biases he did not question, and mainly the reported results of the SERE program to guide him, how did Bybee know whether the proposed techniques were torture?

The answer, I think, does not come in the anodyne prose of Bybee's "legal" analysis. It is implicitly contained on the very first page of his memo to the CIA:

The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, [CIA] intelligence indicates that there is currently a level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you describe as an "increased pressure phase."

What Bybee is describing here can't quite be called a "ticking bomb" scenario one might see in a movie or read about in a law review article, but it's about as close as one gets in real life. With the danger believed to be high and the detainee obviously knowledgeable, time becomes critical.

One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee, in accordance with longstanding national and international commitments and aspirations, or (2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work. The choice of default depends on which values seem paramount at the moment. It seems silly to think that these default rules and the values they represent are never in tension. And it seems too hard and pure to imagine that there aren't cases and times, like America in 2002, where one might sometimes choose the latter default rule over the former.

Where one could fault Bybee is in his initial call about which techniques are close to the line of torture and thus subject to an uncertainty default rule at all. Putting someone in uncontrollable fear of imminent death by drowning -- as in water boarding -- is a death threat. Forcing someone to stay awake for up to 11 days, perhaps by making them stand, shackled to a ceiling or wall (the precise method for keeping them awake is, incredibly, not even considered in the Bybee memo), at least runs a serious risk of causing severe physical or mental pain or suffering.

Bybee had before him a prospect we do not confront. If he refused to authorize the techniques the CIA told him it wanted to use, and on that basis the CIA did not use the techniques and did not get further information from Zubaydah, and a devastating terrorist attack followed, his high regard for human dignity would today be seen as a foolish and even calloused disregard for human lives.

All of this may argue for more precision in the definition of torture, including the banning of specific techniques of interrogation in federal law (as opposed to executive policy). Of course that would limit the flexibility one needs to meet unforeseen and dire circumstances. But one way or another torture will be given clearer definition: either in open democratic debate or in secret memos and prisons.

Related Posts (on one page):

  1. Definitions and defaults in torture:
  2. The Torture Memos:
  3. Obama Orders Release of "Torture Memos":
ruuffles (mail) (www):

Of course that would limit the flexibility one needs to meet unforeseen and dire circumstances.

If it was really a ticking time bomb, and not the situation you quoted from Bybee, then the answer is in the Constitution. Two answers actually: jury trials and presidential pardons. It's hard to imagine how one or both don't happen if it turns out the operative did prevent an imminent attack.
4.17.2009 3:34pm
tarpon (mail):
So in the extreme, what do we do when the terrorist has planted a nuke in a city ...

Or in the less extreme, the plane is in the air ...
4.17.2009 3:35pm
Cornellian (mail):
How about the option of asking Congress to change the law by repealing all legal prohibitions against torture?
4.17.2009 3:36pm
Gabriel McCall (mail):
(2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work.

The last I heard, there was no empiric basis for believing the techniques to work: information gained pursuant to torture/"enhanced interrogation" was found to be entirely unreliable. If that's the case, there's no tradeoff to consider: it's a choice between laboring in ignorance but retaining our dignity and ethics, versus descending to the level of our foes and still laboring in ignorance anyway.
4.17.2009 3:38pm
Dale Carpenter (mail):
Gabriel: At least in the case of waterboarding, the CIA concluded based on the SERE experience that the technique was very successful in getting information. Maybe the SERE experience is not terribly relevant for this purpose, but I don't think these techniques were considered for sadistic joy. It was honestly believed they might get needed information quickly and nothing else promised the same rapid pay-off.
4.17.2009 3:44pm
ChrisIowa (mail):

The last I heard, there was no empiric basis for believing the techniques to work: information gained pursuant to torture/"enhanced interrogation" was found to be entirely unreliable.

Information gained from any interrogation, whether torture is involved or not, has to be considered unreliable until confirmed. Any interrogation only gives information to investigate further.

There are valid arguments against torture, but this one is not.
4.17.2009 3:45pm
trad and anon (mail):
It's another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former "interrogator" you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.


As the victim of torture by the enemy, how do you even know the interrogator is even just interested in information? Torture for the purpose of extracting confessions or inflicting gratuitous harm on your enemies have been very common throughout history. Why would you expect your enemies to be better than that?
4.17.2009 3:49pm
John Moore (www):
I write as the commenter in the previous thread relating my SERE experience. The short term focus in which one cannot apply the idea that it is "only training" is real. It doesn't address the effect of longer term situations - SERE can only last so long, and the intense phase where one can truly forget that it is training cannot be sustained for long.

However, if one is to consider the total effect of the process real terrorists go through, one could argue that it is not substantively worse than that of imprisonment in many of our prisons (even if there the torture is partly inflicted by other prisoners, a fact well known to everyone), and especially in super-max.

Interrogation of a trained, hostile fanatic cannot be done in a short period of time, and it is often not effective, or effective in a short enough time, with kid gloves handling. Nevertheless, there are situations where it is clearly important (the early high-value Al Qaeda detainees mentioned in the memo, for example).

Hence we need to have a law that allows us to protect ourselves, and if that violates, by some fraction, an international treaty we signed, then we should openly abrogate that part of it, since, unlike many other signers, we cannot conceal our use of the techniques.

As I argued in another thread, a few treatments of water-boarding - the most controversial of the techniques - may, because of its rapid effectiveness, ultimately be more humane than the long term use of much "softer" techniques.

Although one seeks clear and bright dividing lines, this is more a bureaucratic response (and the legal system is a huge bureaucratic organism) - an approach that seeks to preempt the judgment of the interrogators in the circumstance (possibly to their legal benefit). Experience shows we must have these lines, but too often they are rather arbitrary and often dangerously decided.
4.17.2009 3:50pm
trad and anon (mail):
So in the extreme, what do we do when the terrorist has planted a nuke in a city ...


If you are actually concerned about this hypothetical, you are free to lobby Congress to stick an exception for it in the torture statutes.
4.17.2009 3:52pm
Steve:
If I were the lawyer being consulted in these memos, my reaction would be something like, "Look, if the guy really does have the information you need to stop the next terrorist attack and this is the only way you can get it out of him, then I don't understand why you'd even be wasting your time asking me for permission."
4.17.2009 4:02pm
Splunge:
But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?

You know, part of what nauseates me about this debate is the delusional or dishonest way in which many folks (not Carpenter here but others elsewhere) pretend the degree of mental suffering and the degree of successful coercion are not one and the same thing.

If a man is motivated not to do something (tell you secrets, say) and you want to overcome that, give him a strong motivation to cooperate, then you have two, and only two choices: you can give him a huge bribe, use a big carrot, or you can cause a giant amount of mental suffering, use a big stick.

There is no third way. There's no such thing as a powerfully coercive method that does not cause significant and lasting mental suffering -- because it is precisely the mental suffering that coerces, and nothing else. The only reason physical suffering even works is because of the mental suffering it imposes; does anyone imagine hacking off a finger would motivate, if it imposed no mental suffering, no sensation of agony and no fear of permanent maim -- e.g. anesthesia was used, and the finger could and would be replaced, good as new, the next day?

So we should all be clear on the fact that if the definition of "torture" is to include anything that causes significant and lasting mental suffering, then there is no practical way other than huge bribes to extract information from prisoners strongly unwilling to give it.

Perhaps folks are OK with paying million dollar bribes to terrorist suspects, and flying them to Switzerland to enjoy their new wealth, to get what they know out of them, if that's the price of being humane. But in any event, no one should delude themselves, or others, that there is an option other than this, if imposing copious mental suffering is torture, and therefore out of bounds.
4.17.2009 4:02pm
MCM (mail):
So in the extreme, what do we do when the terrorist has planted a nuke in a city ...
If you are actually concerned about this hypothetical, you are free to lobby Congress to stick an exception for it in the torture statutes.


Yeah, I think it's pretty silly to worry about a scenario where:

1) the terrorists already have a nuclear device
2) it's already in a city.

At that point, we already lost that one. What, the terrorists are going to give you a chance to catch them? Only on TV, folks.
4.17.2009 4:07pm
John (mail):
Isn't it obvious by now that neither you nor anyone else can define torture except operationally, that is, by example of what you want to prohibit, rather than by argument from principle?

So let's cut the crap and stop the blame. List what you want to prohibit and what you don't. Stating broad principles, as the government tried to do ("severe physical or mental pain or suffering"), or whatever you may wish to substitute, simply will not advance the ball.
4.17.2009 4:09pm
RD (mail):
Dale Carpenter wrote:

One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee...or (2) err on the side of getting information believed to be necessary to protect human life....The choice of default depends on which values seem paramount at the moment.


I disagree with the bolded portion of the quote. It smacks of precisely the kind of situational ethics that I believe form the true rationale of these memos. When others (Iran, Iraq, the Soviets, etc.) do it for evil reasons, it's torture; when we do it for good reasons, it's not. It's an "ends justify the means" rule, which of course is not a rule at all.

The other option was for the lawyers involved to state what the obvious legal rule was in this case - waterboarding and various other techniques are torture under US law - and for the policy-makers to then decide whether or not to break the law and face the consequences if they got caught.
4.17.2009 4:14pm
Aultimer:

John Moore

Hence we need to have a law that allows us to protect ourselves,

Is there no line you're unwilling to cross in order to "protect ourselves"?
4.17.2009 4:14pm
Mark Field (mail):

List what you want to prohibit and what you don't. Stating broad principles, as the government tried to do ("severe physical or mental pain or suffering"), or whatever you may wish to substitute, simply will not advance the ball.


You mean the same way we list all the possible cases of murder in the murder statutes?

Torture statutes are written the same way nearly all criminal statutes are written.

In any case, your response dodges the issue. The statute is written the way it is written. Unless you want to try a due process challenge to the law (and good luck with that), then you have to obey it.
4.17.2009 4:24pm
Anyrandomfool:
Bybee's reasoning has a more fundamental flaw than the difference between SERE and actual enemy interrogation. A major purpose of SERE was to train soldier how to resist enemy torture. I quote here from Army Regulation 350-30, Chapter 4, explaining the purpose of SERE training:

the enemy has used a variety of tactics to exploit PWs in disregard of the GPW. These efforts have included physical and mental harassment, general mistreatment and torture, medical neglect, and political indoctrination.
Thus, Bybee's premise, that he could use SERE, which was anti-torture training, to determine whether the practices within that training were torture or not is absurd.
4.17.2009 4:28pm
Just an Observer:
There's a lot more in the memo but, frankly, it seems to me that's the heart of it. It's not really a "legal" conclusion calling for the specialized training of a lawyer, in the sense that you can find it in a statute or a binding precedent, but an experiential and empirical one.

That was the overriding impression I took from the Bybee memo. I kept reading and wondering: When does he get to the legal reasoning? Basically, he accepted the CIA's "factual" stipulations, which themselves tended to be conclusory, and signed off without grounding his opinion in the law.
4.17.2009 4:33pm
Argonaut (mail):
Is there no line you're unwilling to cross in order to "protect ourselves"?

I suspect there are plenty of lines we're unwilling to cross in order to "protect ourselves". But I suspect most Americans (excluding RD) don't consider waterboarding to be one of those lines.

But views will vary -- Andrew Sullivan, for example, believes wrapping someone in the Israeli flag is torture and a line we shouldn't cross.
4.17.2009 4:38pm
geokstr:
I'd really like to see what the Obama administration would do if one of the three nutcases that make up the subject of the DHS report on the giant threat we face from right wing extremism managed to get a nuke of their own and planted it in a major city, set to go off in 24 hours. Now they capture one of the other two and suspect he knows which city and where its planted.

Do you really think they would be tying themselves in legal knots and endless meetings to discuss the ramifications to our societal integrity if we actually, like, tried to force him to give up the intel?

No, the left is against even mild forms of so-called "torture" no matter what the justification because, given that it's either other leftists or members of one of their approved victim groups that are likely to be the perps of this sort of attack, they are just protecting their own.

If it was a right-wing plot, I don't doubt for a second that all this talk about torture would be turned around in an instant. It was not a right winger that first talked about making an omelette by breaking a whole lot of eggs, after all.
4.17.2009 4:38pm
Crust (mail):
It's very strange that Bybee concedes that waterboarding "constitutes a threat of imminent death and fulfills the predicate act requirement under the statute", but nonetheless concludes that waterboarding is not torture on the grounds that the mental harm does not last months or longer. As Ed Morrisey of Malkin's HotAir points out:
This makes no sense at all. Using Bybee's reasoning, the "threat of imminent death" part of the statute would have to last for months or years in order to qualify as torture. What could possibly qualify in section 2 (C)? We'd have to make a subject smoke for several years and threaten him with cancer.
If we accept Bybee's reasoning then, for instance, mock executions would also not constitute torture.
4.17.2009 4:41pm
Lucius Cornelius:
Gabriel McCall, I agree with you that we do not want to sink to the level of our enemies while trying to fight them. Is it possible to put enemies under stress without violating our principals?

Also, I think that there will be people who are hostile (or unreasonably suspicious) of the US and will always assert that any amount of coercive force is wrong. I wonder how sincere they are?
4.17.2009 4:43pm
ruuffles (mail) (www):

1) the terrorists already have a nuclear device
2) it's already in a city.

At that point, we already lost that one. What, the terrorists are going to give you a chance to catch them? Only on TV, folks.


set to go off in 24 hours

Call Jack Bauer? *thunk* *thunk* *thunk* *thunk*
4.17.2009 4:43pm
Bart (mail):
Dale:

Thank you for the excellent commentary. I agree that the defense being offered by Bybee relies upon the quarter century of experience applying similar techniques on our own soldiers during

Before I comment, I want to correct your misapprehension that I was the commentator who personally underwent SERE training. That would be John Moore. In my post to which you linked, I described some of the elements of SERE training which I learned about while serving as an Army intelligence officer back in the early 90s.

Part of the SERE training is to convince that trainees that the instructors have gone off the reservation and can do anything they please to the trainees without consequence. The simulation is not perfect, but according to Moore and my pilot brother who underwent the training, it gets close. Thus, fear of the unknown scope of what the interrogator will do to you in SERE is more similar to the CIA interrogation than Bradbury assumes.

However, let us assume that SERE trainees had perfect knowledge of the permissible scope of their interrogation (which they do not) while al Qaeda did not (at least until Mr. Obama informed them by releasing the memos). Let us further assume that this lack of knowledge caused al Qaeda detainees to imagine a parade of horribles that might befall them. These parade of horribles could have been pretty bad given al Qaeda's own manual for the torture of prisoners.

I cannot see how a prisoner's self inflicted fear of the unknown constitutes the intentional infliction of lasting severe mental pain on the part of CIA. Are you suggesting that the torture statute imposes and affirmative duty on CIA to reassure the enemy and relieve his self imposed anxieties?

The torture statute prohibits the act of intentionally inflicting severe physical or mental pain upon the enemy. Thus, we should restrict ourselves to examining the actual acts of CIA applying SERE techniques on al Qaeda.

I am unsure how a hypothetical perfect knowledge of the scope of an interrogation technique in SERE would make that technique any less painful than the equivalent technique imposed an al Qaeda. For example, the SERE trainee who undergoes long time standing is going to experience the same muscle fatigue as an al Qaeda. Likewise, the SERE trainee and the al Qaeda are going to experience the same mental disorientation from sleep deprivation, as well as light, food, sound and heat manipulation.

Thus, the empirical data gained from trainees undergoing 25 years of SERE interrogation appears to be rather relevant evidence is a determination of whether the CIA implementation if SERE techniques on al Qaeda were torture. If the military does not torture its own personnel in SERE, then there is more than a reasonable doubt that CIA did not torture al Qaeda by applying the same techniques.

Bradbury's assumption that the CIA waterboarding technique is more severe than that used in SERE is questionable. The CIA technique discussed in the Bybee memo involves placing a cloth over the mouth and nose of the subject and then running water over it for short periods of time of generally less than a minute. In stark contrast, retired Navy SEAL SERE instructor Malcolm Nance has described a far worse process that he used on SEAL trainees, where water is actually forced into the trainees lungs to inflict actual near drowning rather than just the temporary panic associated with drowning.
4.17.2009 4:45pm
BABH:
Several NCOs in my platoon went through SERE training, men I knew well and worked with in the closest possible conditions, men I had been in combat with. They were all a little different when they came back. To assume that SERE causes "no severe mental or physical consequences" is a stretch, in my book.
4.17.2009 4:48pm
BABH:
Argonaut wrote:
But views will vary -- Andrew Sullivan, for example, believes wrapping someone in the Israeli flag is torture and a line we shouldn't cross.


I'm pretty sure that's not true. Cite?
4.17.2009 4:52pm
John Moore (www):

Is there no line you're unwilling to cross in order to "protect ourselves"?

The scare quotes are uncalled for.

Of course there is a line. Waterboarding is inside the line as far as I'm concerned.

However, where to draw the line should have some situational aspects to it (as any reasonable person knows deep down inside). The variants of the "ticking bomb" scenario are very different from those of a random subject picked up in a terrorist training camp.

Fortunately, the techniques described in the memo (and some others involving drugs) are about all that you need in terms of effectiveness. Hence we aren't really faced with the issue of whether to include genital mutilation or bamboo shoots under fingernails or other truly disgusting practices in the discussion.

Put another way, by any standards other than recent IMO silly ones, we don't need to engage in "torture" as commonly envisioned.
4.17.2009 4:54pm
Steve:
I'd really like to see what the Obama administration would do if one of the three nutcases that make up the subject of the DHS report on the giant threat we face from right wing extremism managed to get a nuke of their own and planted it in a major city, set to go off in 24 hours. Now they capture one of the other two and suspect he knows which city and where its planted.

I assume they would handle it in the responsible manner of the Bush Administration, which is apparently that they would, faced with these extraordinary and life-threatening circumstances, go ask lawyers for permission to interrogate the guy.
4.17.2009 4:55pm
ruuffles (mail) (www):

Fortunately, the techniques described in the memo (and some others involving drugs) are about all that you need in terms of effectiveness.

So what if they're not and the subject keeps resisting? Do you keep going Jack Bauer-style until you a) get the answers or b) kill the guy?
4.17.2009 4:57pm
Greek Geek:
"Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?"

I believe that this is the point, is it not? If the bad guy thinks it is going to end soon whether he tells them or not, then he's not going to tell them. However, if he thinks the actions could go on further or could escalate to the point of actual long term physical pain or suffering, then he has an incentive to speak up. I'm not sure this is a valid argument - there are actually valid arguments, but not sure this one is.
4.17.2009 4:58pm
Anderson (mail):
The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Read that closely, folks.

Now, just how was CIA "certain" that Zubaydah was withholding information ...

... which was so vague that they couldn't tell b/t the U.S. and Arabia, or the U.S. and "our interests overseas"?

That's a good trick. Certain incertainty?

Which of course has always been the problem with the Ticking Time Bomb (TTB). You supposedly know everything about this bomb except where it is, or how to defuse it, or whatever.

You also supposedly KNOW that the guy you've got, knows the information you need.

And you don't have any way but torture to get it out from him.

This is not a plausible scenario, to say the least.

As it turned out, according to Ron Suskind's sources, Zubaydah provided a lot of "information regarding plans to conduct attacks within the United States," none of which happened to be true, but it did stop the waterboard (or the Creepy Crawly Caterpillar?) for a time, while wasting our resources.

We need a Truth Commission. We need to know what intel Zubaydah yielded, what proved valuable, and why it couldn't have been obtained by competent interrogation rather than by torture.
4.17.2009 4:59pm
John Moore (www):

Several NCOs in my platoon went through SERE training, men I knew well and worked with in the closest possible conditions, men I had been in combat with. They were all a little different when they came back. To assume that SERE causes "no severe mental or physical consequences" is a stretch, in my book.


Yeah, I was a little different when I came back: better able to deal with real world SERE situations that I might encounter, and much more aware of how terrible were the conditions our POWs were experiencing for years at a time, rather than SERE's days.

One needn't assume "no severe mental or physical consequences," given the many tens of thousands of soldiers who have been through it. The military has a strong incentive to not inflict mental and physical damage on its trainees, as you should know.

Finally, severe mental effects are a result of repeated trauma, not a short term event (contrary to popular belief).
4.17.2009 5:00pm
John Moore (www):

So what if they're not and the subject keeps resisting? Do you keep going Jack Bauer-style until you a) get the answers or b) kill the guy?


In that case, you are, in military parlance, SOL. Only a sadist would escalate if proven techniques are not sufficient.
4.17.2009 5:01pm
Bart (mail):
BABH:

Several NCOs in my platoon went through SERE training, men I knew well and worked with in the closest possible conditions, men I had been in combat with. They were all a little different when they came back. To assume that SERE causes "no severe mental or physical consequences" is a stretch, in my book.

"Severe" is the key term here. My brother was changed by all of his military training including SERE, but not severely damaged in an adverse way.
4.17.2009 5:19pm
Jagermeister:
The Wall Street Journal has a pertinent op-ed piece, The President Ties His Own Hands on Terror, by former CIA DG Gen. Michael Hayden and former AG Michael Mukasey.

Their conclusion is that it's all moot now, since no one in OLC or CIA is going to risk doing anything outside of the Army field manual, since obviously there is no one to cover their backs. As they put it,
Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.
. They say we are now in the timid phase of "cycles of timidity and aggression".

We'll have to wait for the next large scale death toll before the pendulum swings. If it happens on Obama's watch, he won't be able to blame some previous committee or president.
4.17.2009 5:22pm
martinned (mail) (www):

Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

... and that is a bad thing because?
4.17.2009 5:25pm
Aultimer:

John Moore (www):

Is there no line you're unwilling to cross in order to "protect ourselves"?


The scare quotes are uncalled for.

Of course there is a line. Waterboarding is inside the line as far as I'm concerned.


Those aren't scare quotes - I'm quoting your language that I read differently from your now-apparent intent.


Interrogation of a trained, hostile fanatic cannot be done in a short period of time, and it is often not effective, or effective in a short enough time, with kid gloves handling. Nevertheless, there are situations where it is clearly important (the early high-value Al Qaeda detainees mentioned in the memo, for example).

Hence we need to have a law that allows us to protect ourselves


I'm glad I misinterpreted your words to mean that torture should be permissible if necessary to protect ourselves.
4.17.2009 5:26pm
RD (mail):
John Moore wrote:

Finally, severe mental effects are a result of repeated trauma, not a short term event (contrary to popular belief).


That's not true, John. Short-term events can and often do cause severe and lasting psychological damage. Just ask a woman who's been raped.
4.17.2009 5:27pm
Bob from Ohio (mail):

Bybee had before him a prospect we do not confront. If he refused to authorize the techniques the CIA told him it wanted to use, and on that basis the CIA did not use the techniques and did not get further information from Zubaydah, and a devastating terrorist attack followed, his high regard for human dignity would today be seen as a foolish and even calloused disregard for human lives.


Yes, he had to make a decision, not opine afterwards like certain Monday Morning Quarterbacks here and elsewhere. Moral preeners, I'd call them. Filled with their own moral virtue.

Bybee made the right call and I honor him and the others at OLC.

As for a "Truth Commision", what unbiased paragons of virtue would serve on such a commission?

Bring criminal charges or shut up and move on.
4.17.2009 5:29pm
Anderson (mail):
... and that is a bad thing because?

If Himmler had had to carry out the Final Solution himself, he wouldn't have made it to half a dozen victims before collapsing into a weeping wreck. I think "Jagermeister" (master hunter? is that significant here?) is on to something.
4.17.2009 5:31pm
BABH:
John Moore and Bart:

I readily admit that my data points are anecdotal. Your mileage may vary. And in my post-military experience in mental health, having even a single traumatic event playing over and over in a patient's head can have a deleterious effect.

Let me state clearly that I think SERE is a valuable and worthwhile program. I also think it's important that soldiers volunteer for it and know that it is a temporary assignment. Their experience is hardly comparable to the situation our prisoners find themselves in.
4.17.2009 5:31pm
ruuffles (mail) (www):

since no one in OLC or CIA is going to risk doing anything outside of the Army field manual, since obviously there is no one to cover their backs.

That's actually not true at all. The Constitution covers their backs, not once but twice. The operatives have the right to a jury trial and also the right to ask the President for a pardon.

If torture stopped an attack, then no jury in the country would convict. But it doesn't even have to go that far, as the President would have enormous pressure to pre-emptively pardon. A pardon carries with it an admission of guilt so a President Obama would be able to say "well he broke the law but [whatever Bush said about Libby]."
4.17.2009 5:33pm
Anderson (mail):
As for a "Truth Commision", what unbiased paragons of virtue would serve on such a commission?

Right, because the 9/11 Commission was such a bunch of hacks. We couldn't possibly get a truth commission together, unless we replicated Bob from Ohio a few times.
4.17.2009 5:33pm
geokstr:

Anderson:
We need a Truth Commission. We need to know what intel Zubaydah yielded, what proved valuable, and why it couldn't have been obtained by competent interrogation rather than by torture.

"competent interrogation" - what, like convincing him you're his bud, sharing a brewski with him, or telling him you can get him several of his 72 virgins right here, right now?

This is certain to work on fanatical hardened killers, whose religion tells them that their FSM commands them to lie to the infidels, right?

And by "Truth Commission" you mean kangaroo court, where we can punish the evil satans BusHitler and Cheney for believing differently than the truly enlightened ones. You just gotta love the Orwellian terminology. Off with their heads - then the trial.

If we are not willing to do what it takes to defend ourselves, and they are willing to kill themselves to defeat us, eventually, we will lose - period.

I'm reminded of the WWII story of the American journalist interviewing the Chinese general. The journalist asks "General, you're losing 10 Chinese soldiers for every Japanese you kill; how much longer can you take this?" The general answered "Pretty soon - no more Japanese."
4.17.2009 5:34pm
Argonaut (mail):
BABH wrote (about Andrew Sullivan saying that wrapping someone in the Israeli flag is torture):

I'm pretty sure that's not true. Cite?

Well, it's been a subject of much controversy. Mr. Sullivan's actual quote was:

"A simple question: after U.S. interrogators have tortured over two dozen detainees to death, after they have wrapped one in an Israeli flag, after they have smeared naked detainees with fake menstrual blood, after they have told one detainee to "Fuck Allah," after they have ordered detainees to pray to Allah in order to kick them from behind in the head, is it completely beyond credibility that they would also have desecrated the Koran?"

Back in 2005, many, many bloggers found it very interesting the kinds of activities that Mr. Sullivan grouped in the same category as wrapping someone in the Israeli flag. Apparently Israeli flag-wrapping takes second place behind torturing someone *to death* but is well ahead of desecrating the Koran or kicking someone in the head while they pray to Allah. I think it is fair based on the original quote to say that Mr. Sullivan considers Israeli flag-wrapping beyond the bounds of civilized behavior. You, BABH, are entirely welcome to draw your own conclusions about his words.

The cite for Mr. Sullivan's original post was here [note that I've added a space after php? and archive. to get around the posting rules]:

http://www.andrewsullivan.com/index.php? dish_inc=archives/2005_05_15_dish_archive. html#111625651809819682

You'll get a 404 if you try to pull it up now. You can google "Andrew Sullivan israeli flag torture" for some of the commentary at the time.

Cheers and thanks for your response.
4.17.2009 5:36pm
Bart (mail):
Anderson (mail):

The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Read that closely, folks.

Now, just how was CIA "certain" that Zubaydah was withholding information?

A basic understanding about how intelligence analysis works might help.

CIA and DIA had intelligence from other sources prior to capturing Zubaydah concerning his position in the al Qaeda hierarchy and his activities as well as other intelligence concerning other al Qaeda operations and personnel. Where those two intelligence data sets intersect, it is reasonable to assume that Zubaydah knew about various al Qaeda operations and personnel like KSM in the US and Saudi Arabia.

FBI was completely unsuccessful in getting anything more than religious lectures from Zubaydah, thus the request to use coercive SERE methods.

The SERE methods worked. The intelligence provided by Zabaydah led a second al Qaeda capture, who provided the remaining information necessary to locate KSM.

BTW, picking on Bybee's use of the term "or" between the US and Saudi operations rather than the more appropriate "and" is grammar nitpicking.
4.17.2009 5:36pm
martinned (mail) (www):

BTW, picking on Bybee's use of the term "or" between the US and Saudi operations rather than the more appropriate "and" is grammar nitpicking.

Just like the difference between "pain and suffering" and "pain or suffering"?
4.17.2009 5:39pm
Bart (mail):
BABH:

Let me state clearly that I think SERE is a valuable and worthwhile program. I also think it's important that soldiers volunteer for it and know that it is a temporary assignment. Their experience is hardly comparable to the situation our prisoners find themselves in.

The al Qaeda are volunteers as well, who assumed the risk of all lawful acts of war that we can wage against them.

The issue is not whether the enemy were volunteers or what fears they may self impose on themselves, but rather whether CIA's use of SERE techniques fits the statutory definition of torture beyond a reasonable doubt.
4.17.2009 5:40pm
BABH:
We'll have to wait for the next large scale death toll before the pendulum swings [back to jackbooted thuggery].


This is an unfortunate mentality that I think our society should be trying to counter. The fact is that no matter how draconian our government becomes, there will be further successful terrorist attacks some day. The thing is that it is better for America, and for civilized society everywhere, if certain things just aren't done. For what shall it profit a nation if it shall gain the whole world, and lose its own soul?
4.17.2009 5:40pm
BABH:
Bart, many of the prisoners are not terrorist, but terror suspects, arrested on hearsay or even in blanket arrests of all males over the age of 16. Some were nonetheless tortured to death. I happen to believe that's not appropriate.
4.17.2009 5:43pm
Anderson (mail):
I'm reminded of the WWII story of the American journalist interviewing the Chinese general. The journalist asks "General, you're losing 10 Chinese soldiers for every Japanese you kill; how much longer can you take this?" The general answered "Pretty soon - no more Japanese."

Have you ever read anything factual about China's military performance against Japan?

And by "Truth Commission" you mean kangaroo court, where we can punish the evil satans

Uh, no. By definition, a "commission" in this context does not have the power to punish anyone. My call for such a commission is in fact due to my concession that, however richly deserved, prosecutions are vanishingly unlikely.

This is certain to work on fanatical hardened killers, whose religion tells them that their FSM commands them to lie to the infidels, right?

One, anything that worked on Japanese soldiers, whose fanaticism was second to none, is likely to work for al-Qaeda.

Second, you are more impressed with al-Qaeda than I am. "Fanatical hardened killers"? Who? Zubaydah? KSM? Osama? Give me a break.

Once again, an example of subconsciously magnifying and glorifying these pathetic little men into Sith Lords against whom our only recourse is to the Dark Side.
4.17.2009 5:46pm
John Moore (www):

The issue is not whether the enemy were volunteers or what fears they may self impose on themselves, but rather whether CIA's use of SERE techniques fits the statutory definition of torture beyond a reasonable doubt.


A more important issue is what statutory definitions of prohibited interrogation techniques should be.
4.17.2009 5:46pm
BABH:
Argonaut:
Thanks for the follow-up. Since Sullivan clearly would not equate desecrating the Koran with torture, I need not conclude that he meant to equate wrapping in the Israeli flag with torture either. You are, of course, free to read into his statement opinions that he does not express.
4.17.2009 5:49pm
Argonaut (mail):
A more important issue is what statutory definitions of prohibited interrogation techniques should be.

I think this gets to the heart of it. With the exception of a few mad dogs who can easily be disregarded, I think most people agree that the US should not use torture to gain information.

The problem is that reasonable people disagree about what constitutes torture. I think everyone can agree that pulling out fingernails with a pair of pliers or smashing testicles in a vice constitutes torture. But waterboarding, sleep deprivation, or exposure to extreme temperatures similar to what Navy SEALs have to endure? Torture or not? Maybe we should just stipulate whether certain methods meet the legal definition of torture and then move on.
4.17.2009 5:57pm
Anderson (mail):
Maybe we should just stipulate whether certain methods meet the legal definition of torture and then move on.

Right. Because torturers are not clever at finding new tortures that evade specific prohibitions.

The real problem is the focus on "making people hurt/miserable/suffer until they talk." That's what gets this quest for Legal Torture going, and it's a fundamentally misguided approach to interrogation. We should not be doing anything *near* "the line."

(Leaving aside that no one doubted waterboarding, sleep deprivation, or hypothermia were tortures when the Soviets or the Khmer Rouge did 'em. "Reasonable people" were more reasonable then, it appears.)

... Now I have to go see Monsters v. Aliens, or else my wife, who has not read the Torture Act, may commit a few war crimes on my own person.
4.17.2009 6:02pm
zuch (mail) (www):
Cornellian:
How about the option of asking Congress to change the law by repealing all legal prohibitions against torture?
Prohibitions against murder are quite inimical to the safety of a secure state; if people are not allowed to murder who they wish when they see that the safety of the state is imperiled, obviously, the safety of the state is imperiled. I will ask for a suspension of the laws prohibiting murder ASAP. Send me your addy, and maybe we can discuss hoe to proceed from here. The --- ummm, "drinks" -- are on me.

Cheers,
4.17.2009 6:05pm
Argonaut (mail):
BABH,

Thanks for the follow-up. Since Sullivan clearly includes Israeli flag-wrapping in the same category as torturing multiple people *to death*, I think it's difficult to easily reach the conclusion that you did. You are of course entirely free to draw whatever conclusions make you comfortable about Mr. Sullivan's position.

Cheers and thanks for your response.
4.17.2009 6:07pm
Bart (mail):
BABH:

Bart, many of the prisoners are not terrorist, but terror suspects, arrested on hearsay or even in blanket arrests of all males over the age of 16. Some were nonetheless tortured to death. I happen to believe that's not appropriate.

No one seriously contends any of the 14 high value al Qaeda who underwent the SERE techniques are anything other than high ranking al Qaeda operatives.

Zubaydah was one of the first al Qeada captures. The intelligence we had against him was obtained from sources other than fellow prisoners.

Finally, the memos as issue are not discussing real war crimes, like the handful of cases where suspects died in custody from abuse that was not covered in those memos.
4.17.2009 6:07pm
zuch (mail) (www):
ChrisIowa:
Information gained from any interrogation, whether torture is involved or not, has to be considered unreliable until confirmed. Any interrogation only gives information to investigate further.
... which destroys the "ticking time bomb" rationale.

Cheers,
4.17.2009 6:09pm
Bart (mail):
Anderson (mail):

We should not be doing anything *near* "the line."

What precisely do you personally find to be permissible?

The rules that apply to civilian criminal defendants?

The rules that apply to privileged prisoners of war?

The rules in the Army Interrogation manual, whose appendices allow environmental manipulation and unidentified coercive techniques against non privileged POWs, but not quite to the extent of the SERE techniques used by CIA?
4.17.2009 6:13pm
martinned (mail) (www):
@Argonaut: That sounds reasonable enough. On the other hand, it would be a start if we simply applied the same standard to the US as to everybody else. If we did that, we'd have plenty of case law to guide us. IIRC, there is an actual Court of Appeals ruling that says waterboarding is torture. There are plenty of other cases that provide guidance as to what is or is not torture. It's just that they always concern things that happened abroad, done by non-Americans. If we could agree that the definition of torture does not depend on who's doing it, that would be a big help.

(An even bigger help would be to look to other signatories of the CAT for precedents, or even to the ECHR. I'm thinking that wouldn't be a very popular suggestion here on Volokh.)
4.17.2009 6:14pm
My Middle Name Is Ralph:

That was the overriding impression I took from the Bybee memo. I kept reading and wondering: When does he get to the legal reasoning? Basically, he accepted the CIA's "factual" stipulations, which themselves tended to be conclusory, and signed off without grounding his opinion in the law.


I had the same impression. No citation to case law or past precedents and statements involving torture. No attempt to understand or measure exactly what effects the different methods caused other than blind acceptance of whatever the CIA said. No independent investigation of facts. It read like a rubberstamp.
4.17.2009 6:17pm
Argonaut (mail):
Leaving aside that no one doubted waterboarding, sleep deprivation, or hypothermia were tortures when the Soviets or the Khmer Rouge did 'em. "Reasonable people" were more reasonable then, it appears.

Eh. No one thinks they're torture when Navy SEAL candidates undergo them in BUD/S (and in the case of hypothermia, on an almost daily basis for weeks at a time). So what's the solution -- we call it "torture" when we do it to people we want information from, but call it "tough training conditions" when we want to identify the best of the best to staff our Spec War teams? That's senseless -- it's either torture or it's not.
4.17.2009 6:17pm
PC:
The al Qaeda are volunteers as well, who assumed the risk of all lawful acts of war that we can wage against them.

So Maher Arar and Khaled el-Masri volunteered? Interesting. I'm pretty sure they were "disappeared," but maybe you can take that up with them.
4.17.2009 6:19pm
martinned (mail) (www):

No one thinks they're torture when Navy SEAL candidates undergo them in BUD/S (and in the case of hypothermia, on an almost daily basis for weeks at a time). So what's the solution -- we call it "torture" when we do it to people we want information from, but call it "tough training conditions" when we want to identify the best of the best to staff our Spec War teams?

How about we call it torture in both cases, but we remember that volenti non fit injuria?
4.17.2009 6:20pm
PC:
No one seriously contends any of the 14 high value al Qaeda who underwent the SERE techniques are anything other than high ranking al Qaeda operatives.

How about the Afghan cab driver that was beaten to death at Bagram? Was he "high value al Qaeda?" Or maybe Maj. Gen. Abed Hamed Mowhoush, who was wrapped in a sleeping bag and beaten to death with an axe handle? Let me guess, a uniformed major general that surrenders is not covered by the Geneva Conventions?
4.17.2009 6:26pm
Argonaut (mail):
Right. Because torturers are not clever at finding new tortures that evade specific prohibitions.

Who are these "torturers" you speak of?

Outside the US, they're not going to give a damn how we define torture. It will be thumbscrews, rape rooms, electricity to the genitals, and human-sized shredding machines.

Inside the US, if you give some reasonably clear guidelines (clearer than "severe physical or mental harm"), they'll follow them. I believe one of the reasons the "torture memos" were written is that the "torturers" (or, as some people would call them, "interrogators") wanted to be clear what what was in-bounds and what was out of bounds.
4.17.2009 6:27pm
Argonaut (mail):
How about we call it torture in both cases, but we remember that volenti non fit injuria?

How about we don't? I'm reasonably sure that no SEAL candidate is going to sue anyone for the tough treatment they receive at BUD/S. I'm also reasonably sure that no reasonable person would define their treatment as torture.

Is it really that hard to just make a call as to whether the military or intelligence agencies are allowed to use sleep deprivation to extract information? My own view is that if you're allowed to use it on your own soldiers, you should be allowed to use it on people who might have actionable intelligence.
4.17.2009 6:35pm
My Middle Name Is Ralph:

Thus, the empirical data gained from trainees undergoing 25 years of SERE interrogation appears to be rather relevant evidence is a determination of whether the CIA implementation if SERE techniques on al Qaeda were torture. If the military does not torture its own personnel in SERE, then there is more than a reasonable doubt that CIA did not torture al Qaeda by applying the same techniques.


I don't think your conclusion follows the premise. Assuming the exact same techniques were used, it does seem fair to look to SERE for insight into the physical pain and suffering and any long term physical injury. But, torture is not limited to physical pain. It includes mental pain and suffering. I do not understand how anyone could suggest that the mental pain and suffering would be the same for the reasons described by Carpenter:


It's one thing to know you are part of a controlled training program administered by your country's own personnel who have no interest in killing or permanently damaging you, and also to know that however awful it is there will be an end of it. It's another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former "interrogator" you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.

Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?


Of course, we also know that detainees were exposed to the SERE techniques more frequently and for a much greater time period.
4.17.2009 6:35pm
martinned (mail) (www):
@Argonaut: With all due respect, your view is wrong. Someone who voluntarily participates in SERE training can be treated in ways that would most certainly not be OK for someone who has been kidnapped off the street in Kandahar.
4.17.2009 6:37pm
Crackmonkeyjr (www):
Argonaut:

If I were to stab you in the stomach without your permission, its assault and/or attempted murder. If a doctor cuts open your stomach to remove an infected appendix, with your permission, its called surgery.

The US government "tortures" Navy SEALS and other special forces, with there permission, because it will help them should they get captured by a brutal enemy. To say that this makes it ok to then use the same torture on our own prisoners is to say that it is ok for me to stab you in the stomach because it would be ok for your doctor to do so as part of surgery.
4.17.2009 6:38pm
My Middle Name Is Ralph:

Put another way, by any standards other than recent IMO silly ones, we don't need to engage in "torture" as commonly envisioned.


You lost that argument in the court of world and US public opinion. One can argue that what we did is not torture, especially if you take a very cramped reading of the statute. It is factually wrong to say what we did was not "torture" in the eyes of most.
4.17.2009 6:39pm
norm (mail):
Torture is bad. Increased pressure interrogation is ok. The actual question is what techniques are which?

At length the memo says, IMHO, that what we are willing to do to our own soldiers and interrogators in training is ok. That would be an excellent, easy to use standard that many people can readily understand. Given the serious nature of the risks involved for many innocent people subject to terrorism, I don't really care if a few suspects flip out over non poisonous insects, Israeli flags or menstrual blood.

If we won't do it to our people, then it is torture.
4.17.2009 6:42pm
Crackmonkeyjr (www):
Norm: What we do to our own soldiers is to expose them to the techniques that they may face if they are captured and tortured, so that they can prepare themselves for the same. This pretty much makes these techniques torture by definition.
4.17.2009 6:46pm
Argonaut (mail):
Martinned said:

There are plenty of other cases that provide guidance as to what is or is not torture. It's just that they always concern things that happened abroad, done by non-Americans. If we could agree that the definition of torture does not depend on who's doing it, that would be a big help.

Fully agree. Our definition of torture should not depend on whether the accused torturer is wearing the Stars &Stripes on their sleeve.
4.17.2009 6:46pm
martinned (mail) (www):

If we won't do it to our people, then it is torture.

That's definitely one way that SERE is relevant: The inverse test. (Not that I agree with the rest of norm's comment.)
4.17.2009 6:48pm
PC:
At length the memo says, IMHO, that what we are willing to do to our own soldiers and interrogators in training is ok. That would be an excellent, easy to use standard that many people can readily understand.

You could use the same standard and say any procedure that a person would submit to as a volunteer can't be considered torture. At that point I'd point to the BDSM scene. People pay a lot of money to have things done to them that would be felonies (for torture, even) if the same things were done to them without consent.
4.17.2009 6:51pm
My Middle Name Is Ralph:

Outside the US, they're not going to give a damn how we define torture. It will be thumbscrews, rape rooms, electricity to the genitals, and human-sized shredding machines.


The way I read the Bybee memo, anal rape would not be torture, provided we lubed them up sufficiently. No severe physical pain or suffering. No prolonged mental harm. Ergo, no torture.
4.17.2009 6:57pm
My Middle Name Is Ralph:

If we won't do it to our people, then it is torture.


I'm pretty sure our people get to call time out whenever they wish. Give the same option to detainees and I wouldn't call it torture either.
4.17.2009 7:01pm
keypusher64 (mail):
Anderson (mail):

... Now I have to go see Monsters v. Aliens, or else my wife, who has not read the Torture Act, may commit a few war crimes on my own person.

I've seen it. You might want to risk undergoing the war crimes.
4.17.2009 7:01pm
martinned (mail) (www):
@Argonaut: Does this one count as a precedent?


US v Lee (1984), Court of Appeals for the 5th circuit, 744 F.2d 1124

Carl Lee was jointly tried with three fellow San Jacinto County, Texas law enforcement officers on charges of violating and conspiring to violate the civil rights of prisoners in their custody. The sole issue Lee presses in this appeal is whether the trial judge abused his discretion in denying him a severance. Finding no abuse, we affirm.

I.
Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker,
based on a number of incidents in which prisoners were subjected to a "water torture" in order to prompt confessions to various crimes. On the morning trial was to begin, Floyd Baker's counsel informed the court and his co-defendants that Baker intended to admit the government's allegations were true but would argue that he did not have the "state of mind" required for criminal liability. Lee, Glover and Parker each intended to defend on the ground that they did not participate in any torture incidents and were unaware that any such incidents were taking place. Counsel for the other defendants immediately moved for severance. The district court deferred a ruling on these motions pending some clarification of exactly what Baker's defense and testimony would be.

At trial, Baker's defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors -- a "Nuremberg defense." The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal. In the course of Baker's testimony, he identified Lee as a participant in the torture of several prisoners. Seven other witnesses also connected Lee with various torture incidents. At the close of the evidence, the district judge severed Baker, and put the case of the remaining defendants to the jury. Lee was convicted on three counts. In this appeal he contends that Baker's defense was in such conflict with his own that he should have been granted a severance at the beginning of trial.

(I'm quoting this much because the court does not technically decide whether the defendant committed torture. As a result, the precedential value of this case is a bit up in the air, at least as far as the present problem is concerned.)
4.17.2009 7:02pm
Argonaut (mail):
If I were to stab you in the stomach without your permission, its assault and/or attempted murder. If a doctor cuts open your stomach to remove an infected appendix, with your permission, its called surgery.

The US government "tortures" Navy SEALS and other special forces, with there permission, because it will help them should they get captured by a brutal enemy.


Actually, the US government subjects Navy SEAL *candidates* to difficult circumstances in order to stress test them and try to make them quit the training program. And they do quit, in vast numbers -- out of a starting class of 80-120, sometimes only 10 men graduate. The entire point of the program (or at a minimum the first 8 weeks) is to subject men to extremely difficult mental and physical stress and break them.

Oddly, the same intention exists when interrogating people who may have actionable intelligence.

In either case, you don't want to torture them and you don't want to inflict permanent damage -- the program is not being run by the Marquis de Sade, after all. You just want to try to break them to get what you want. In the case of SEAL training programs, what you want is to identify the men who refuse to break. In the case of interrogation, you want information.

The analogy to a malicious and criminal stabbing versus a beneficial surgery is completely off base and irrelevant.
4.17.2009 7:04pm
Argonaut (mail):
@Argonaut: With all due respect, your view is wrong. Someone who voluntarily participates in SERE training can be treated in ways that would most certainly not be OK for someone who has been kidnapped off the street in Kandahar.

I'm not talking about SERE training or kidnapping off the streets of Kandahar. Other than that, carry on.
4.17.2009 7:06pm
martinned (mail) (www):

The analogy to a malicious and criminal stabbing versus a beneficial surgery is completely off base and irrelevant.

Wait, what??? How do you get there from what you wrote before?
4.17.2009 7:08pm
martinned (mail) (www):

I'm not talking about SERE training or kidnapping off the streets of Kandahar. Other than that, carry on.

Good for you. Everybody else is, though. (Here's the original post, in case you need reminding.)
4.17.2009 7:09pm
PC:
Oddly, the same intention exists when interrogating people who may have actionable intelligence.

SEAL candidates have the option of dropping out. The entire program encourages people to drop out. Terrorism suspects don't have that option.
4.17.2009 7:12pm
Vermando (mail) (www):
Given all of the above, didn't Bybee have a duty not to issue the opinion saying it was authorized? Aren't there situations where it's OK to say, "we think so but we're not sure" or "here's one perspective by which it could be considered legal, but really, there's not enough out there for us to say with any degree of certainty, so you really shouldn't rely on this unless you absolutely have to."

Even people who support what he authorized are struck by his lack of hard legal analysis. Didn't he have a duty to express this reality about the uncertain state of the law to his clients?
4.17.2009 7:23pm
martinned (mail) (www):
Given that mr. Moore wanted more detailed rules as to what is or is not torture, my search for case law continues.

In 1926, the Mississippi Supreme Court ruled that this was torture:

The state offered (...) testimony of confessions made by the appellant, Fisher [who], after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.

Fisher v. State, 110 So. 361, 362 (Miss. 1926)

In 1922, they also decided that this was torture:

[T]he hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant's breast, and the other foot entirely upon his neck. While in that position what is described as the "water cure" was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The "water cure" appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed

White v. State, 91 So. 903, 904 (Miss. 1922)

For the record, in both these cases the appellant/victim was a black man.
4.17.2009 7:24pm
Argonaut (mail):
Martinned:

To your point about precedent, I have to confess that I don't know. Are Carl Lee or his fellows either military or CIA interrogators dealing with someone who could reasonably be expected to have actionable intelligence relevant to foreign terrorist networks that threaten the security of the United States?

Let me know.
4.17.2009 7:26pm
Argonaut (mail):
SEAL candidates have the option of dropping out. The entire program encourages people to drop out. Terrorism suspects don't have that option.

Terrorism suspects have the option of talking.
4.17.2009 7:28pm
Argonaut (mail):
Good for you. Everybody else is, though.

Talk to everybody else then. When you want to talk to me, let me know.
4.17.2009 7:30pm
DQ (mail):
Dale,

I see your point regarding SERE training, but I honestly think it is a side issue and does not justify any of these tactics. Perhaps that is why you state that that no legal conclusions can be drawn from SERE training.

From my perspective, these memos are just more evidence that there was a systematic policy under the Bush Administration condoning "enhanced interrogation techniques" that in some cases resulted in the murder and maiming of prisoners (thinking here specifically of Abu Ghraib.)

Finally, if the purpose of "enhanced interrogation techniques" is to get the prisoner to "break" and talk to his captors, why would the techniques need to simulate the act of drowning unless the implied result was to inflict "severe physical or mental pain and suffering?"

The question is, in some sense, not how you define torture, but what needs to happen for a person to "break." Indeed, this is where the SERE training is most enlightening. It works from the assumption that there is a point in which a person is no longer able to "to rationalize his environment." Knowing this, then, one can work backwards to figure out what need to occur to make this happen. Certainly, infliction of pain and suffering would be one act, but so to would a number of other acts such as taking hallucinogenic drugs or illness. This is one reason why we insist medical treatment for prisoners. Not simply so that they can avoid pain and suffering, but also to preserve that kernel of humanity we think of as rational thought.
4.17.2009 7:30pm
martinned (mail) (www):
@Argonaut: I'm not sure that that matters. What you're talking about is relevant for a necessity defence, but not normally for the threshold question of whether what was done is torture.
4.17.2009 7:30pm
Lucius Cornelius:
Martinned:


Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker,
based on a number of incidents in which prisoners were subjected to a "water torture" in order to prompt confessions to various crimes.


The abuse described in this decision does not appear to be the "waterboarding" used in SERE or by the CIA. Just because two things are described with similar terms does not make them the same.
4.17.2009 7:38pm
PC:
Terrorism suspects have the option of talking.

If they have anything to talk about. I'll point -- again -- to Maher Arar and Khaled el-Masri. You can't confess to what you don't know, although under torture I'm sure you can confess to a lot of things you don't know.
4.17.2009 7:40pm
Lucius Cornelius:
I find myself in agreement with Argonaut. We must remember that he purpose of interrogation is to get information, not to inflict pain. If your goal is to get information, you probably are never going to need to inflict tremendous pain and suffering.

I think much of the torture inflicted by militants in Iraq (and by North Vietnam on American POWs) was more geared towards making the subject suffer pain. The quest for information (or forced confessions) was an excuse for abusing their prisoners.
4.17.2009 7:43pm
My Middle Name Is Ralph:

To your point about precedent, I have to confess that I don't know. Are Carl Lee or his fellows either military or CIA interrogators dealing with someone who could reasonably be expected to have actionable intelligence relevant to foreign terrorist networks that threaten the security of the United States?


I don't remember reading the part of the Convention Against Torture that says it's not really torture as long as you're doing it for a good reason.
4.17.2009 7:44pm
martinned (mail) (www):
@Lucius Cornelius: Actually, it doesn't really give much detail at all. I would look up the District Court case, but I seem to have misplaced my Westlaw password. Anyway, the point was to explore some precedents in the general vicinity of waterboarding and the other techniques discussed in the memos. The Mississippi case discusses the water cure, but from the discription it appears they meant neither exactly waterboarding, nor the water cure the way Wiki describes it. (On a related note, this is the wiki page describing the various forms of torture involving water.)
4.17.2009 7:45pm
martinned (mail) (www):

I don't remember reading the part of the Convention Against Torture that says it's not really torture as long as you're doing it for a good reason.


Actually, it says this:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

Art. 2(2)
4.17.2009 7:49pm
PC:
The quest for information (or forced confessions) was an excuse for abusing their prisoners.

Really? You don't think that the interrogators were convinced that their prisoners had some vital information that would help the troops? Maybe some operational details, some sort of vague battle briefing, etc.?

Those people will engage in torture for fun, we only do it out of service for our country.
4.17.2009 7:56pm
AntonK (mail):
Peter Wehner reminds us of this Washington Post story:


In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk. Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised.
The Post added that the during the CIA's 30 congressional briefings on these matters only one formal complaint was issued, and Porter J. Goss told the paper that there was bipartisan "encouragement" for the CIA's program:

"Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."

4.17.2009 8:04pm
martinned (mail) (www):
@AntonK: Then why didn't they go and ask Congress to change the law?
4.17.2009 8:08pm
Jeff Wilkerson (mail):
I don't know why we always see discussion of this 'ticking time bomb' hypothetical whenever this issue arises. I think that anyone who doubts that we would torture someone in the situation described in that hypothetical is doubtless stupid.

The more important point is that we don't need memos discussing appropriate techniques for the ticking time bomb scenario because if we were ever actually sure that there was a ticking bomb and sure that someone we had captured knew where it was, we would not resort to such a memo but would take all necessary measures to gain that information. And this is exactly the situation where pardon would be appropriate.

But the 'ticking time bomb' scenario is not what these memos envisaged. Rather, these techniques were being authorized for general intelligence gathering - a generalized fear based on "chatter."

If we, as a nation, are going to have a real debate on this issue, I think that is a good thing. But it would be intellectually dishonest to defend the United States' use of torture on the basis of such hypos.
4.17.2009 8:30pm
Comrade E.B. Misfit (mail) (www):
I have yet to read anything addressing the point that if it was so all-fired urgent for the CIA, operating overseas, to torture those guys, why did they take the time to get memos running from 18 pages to over 40 pages in length from the hacks at the DoJ?

How long does it take you guys to produce a legal memo of those lengths?
4.17.2009 8:33pm
John Moore (www):
RD:

That's not true, John. Short-term events can and often do cause severe and lasting psychological damage. Just ask a woman who's been raped.


You are correct. I meant to refer to PTSD, for which it is correct.
4.17.2009 8:37pm
PC:
The more important point is that we don't need memos discussing appropriate techniques for the ticking time bomb scenario because if we were ever actually sure that there was a ticking bomb and sure that someone we had captured knew where it was, we would not resort to such a memo but would take all necessary measures to gain that information.

There are some really creative ways to get someone to talk in a ticking time bomb scenario. 11 days of forced standing isn't one of them (boop, beep, boop, beep).

Steve covered the legal ground earlier. If there was a real "ticking time bomb" the interrogators wouldn't worry about the legal niceties:

INT: there's a nuclear bomb in DC set to go off in 6 hours and this guy knows where it is; let's get an opinion from the OLC.

Yeah, not going to happen (in so many ways).
4.17.2009 8:46pm
John Moore (www):
Misfit writes:

I have yet to read anything addressing the point that if it was so all-fired urgent for the CIA, operating overseas, to torture those guys, why did they take the time to get memos running from 18 pages to over 40 pages in length from the hacks at the DoJ?



The more important point is that we don't need memos discussing appropriate techniques for the ticking time bomb scenario because if we were ever actually sure that there was a ticking bomb and sure that someone we had captured knew where it was, we would not resort to such a memo but would take all necessary measures to gain that information. And this is exactly the situation where pardon would be appropriate.


The answer to both of these is the same. Our intelligence agencies are periodically subjected to witch hunts, in which careers are ruined and even charges are brought.

The memos were insurance against witch hunts - even though they *did* have a ticking bomb scenario.

There seems to be a child like faith that the interrogators will go 24-Jack when we really need them to, even when we send them the message that they'll be severely punished for doing so.

If you believe in the rule of law, then you damned well better not be trusting your safety to the premise that someone will violate the law to save you.
4.17.2009 8:50pm
John Moore (www):
martinned:

Given that mr. Moore wanted more detailed rules as to what is or is not torture, my search for case law continues.

I wanted rational discussion, specific to appropriate situations (terrorism is different than crime, international terrorism is different than domestic terrorism, etc). I am not interested in what a bunch of judges thought in various jurisdictions you can dig up from a database.
4.17.2009 8:51pm
John Moore (www):
PC writes, referring to Vietnam and other enemies:

Really? You don't think that the interrogators were convinced that their prisoners had some vital information that would help the troops? Maybe some operational details, some sort of vague battle briefing, etc.?

Those people will engage in torture for fun, we only do it out of service for our country.


The torturers continued their activities long after there was any intelligence to be gained. One of the primary purposes (as is popular in police states) was to obtain confessions - in this case to be used in propaganda. Another was simply genuine sadism - this was not a regime that cared a whit about human rights or dignity. Another was to control the prisoners.

Most POWs in NV had little information that was of value more than a few days after they were captured. One of the reasons for SERE training was training in protecting that information until it was no longer valuable.
4.17.2009 8:55pm
martinned (mail) (www):

The more important point is that we don't need memos discussing appropriate techniques for the ticking time bomb scenario because if we were ever actually sure that there was a ticking bomb and sure that someone we had captured knew where it was, we would not resort to such a memo but would take all necessary measures to gain that information.

On a related note, the police may use evidence obtained through torture carried out by others, they just may not use it in court.

From the big House of Lords torture case of 2005:


47. I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

(Per Lord Bingham of Cornhill)
4.17.2009 8:55pm
John Moore (www):
PC writes, referring to Vietnam and other enemies:

Really? You don't think that the interrogators were convinced that their prisoners had some vital information that would help the troops? Maybe some operational details, some sort of vague battle briefing, etc.?

Those people will engage in torture for fun, we only do it out of service for our country.


The torturers continued their activities long after there was any intelligence to be gained. One of the primary purposes (as is popular in police states) was to obtain confessions - in this case to be used in propaganda. Another was simply genuine sadism - this was not a regime that cared a whit about human rights or dignity. Another was to control the prisoners.

Most POWs in NV had little information that was of value more than a few days after they were captured. One of the reasons for SERE training was training in protecting that information until it was no longer valuable.
4.17.2009 8:57pm
John Moore (www):

I'm pretty sure our people get to call time out whenever they wish. Give the same option to detainees and I wouldn't call it torture either.


I can only speak from my experience here. We were ordered not to break (which calling for a timeout would be). We were informed that if we broke, we would lose all security clearances and could be courts martialed under UCMJ for violation of a lawful order.

So "time out" was not a realistic option.
4.17.2009 8:58pm
martinned (mail) (www):

I wanted rational discussion, specific to appropriate situations (terrorism is different than crime, international terrorism is different than domestic terrorism, etc). I am not interested in what a bunch of judges thought in various jurisdictions you can dig up from a database.

Actually, that is inconsistent with what you said before. Earlier in this thread, you said:


A more important issue is what statutory definitions of prohibited interrogation techniques should be.

You made that same point in past threads, that the statute should be more detailed. As it happens, the way the law works, particularly in countries like the United States that come from a common law tradition, is that the general definition of a crime is made explicit by judges and juries looking at specific cases. If you think the statute as written does not give enough guidance, the thing a lawyer would normally do is to look at the case law. Those cases will describe certain fact patterns, followed by the court or the jury's opinion as to whether that is torture or not. That's where your "definitions of prohibited interrogation techniques" should come from. Not from writing ever more detailed statutes, since - as was pointed out by one of the other commenters - that will simply lead to more legalese, ever longer OLC memos, and generally more arguing about semantics, but from case law that is either directly binding, or that offers a basis for arguing by analogy, the way it has been done for millennia.
4.17.2009 9:06pm
John Moore (www):
martinned, I am well aware of the workings of the judicial bureaucracy in this sort of thing.

But you have the judge before the horse.

First get the laws right, then turn loose the judges.
4.17.2009 9:16pm
martinned (mail) (www):
@John Moore: You mean the way they wrote this statute:


Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Or even vaguer:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Compared to that, this is actually pretty clear:

[Torture is] any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
4.17.2009 9:23pm
norm (mail):
Many people seem concerned about the long term psychological consequences. I don't get it. The purpose, intent, desire of interrogation in these circumstances is to obtain information that will lead to the death of friends of the person being interrogated and the failure of their life's purpose. All likely to cause severe psychological problems. I don't believe psychology is to the point yet of deciding whether their problems will be worse because they remember the fear and pain which were too great for them or because they were tricked in some sense to betray their comrades. Further I don't much care.
I do care that we only increase pressure when we have very strong reason to believe the prisoner has important info ( It seems like the memos are evidence that many people were being careful about who was interrogated and how... although they could be a..covering.) I also care very much, like every one else commenting here, that the techniques use not offend my sense of right.
Of course consent is important in most human activity. However the detainees don't consent to being detained and they may not consent to our even living (unless we convert to their abominable religious views) I don't think their consent is important here, assuming we are dealing with those close to terrorists. What matters is exactly what we will do or not do to them. We will call the "not do" torture and the "do" something else. Looking to what people voluntarily undergo gives me a good guide to what is acceptably "right" to "do."
4.17.2009 9:42pm
Crackmonkeyjr (www):
For those who have rejected mental harm as a gauge for torture, would you approve of rape as an interrogation technique? It has nearly no physical implications, but plenty of emotional harm. I would point out that Sadam Hussain's use of "rape rooms" was often cited as a prime example of the varberic torture taking place in Iraq.
4.17.2009 9:51pm
John Moore (www):
Who has rejected mental harm as a gauge for torture?

Rape is clearly out of the question.
4.17.2009 9:59pm
Anderson (mail):
That was the overriding impression I took from the Bybee memo. I kept reading and wondering: When does he get to the legal reasoning?

In all fairness, the new Bybee memo was dated the same as the previously-leaked Bybee memo, which I take it was the "theory" side of the coin; the new memo applies that theory, such as it is (for ex, the notion that "pain or suffering" = "pain").

KeyPusher: You may be right about the movie. Hell, forcing KSM to watch it w/ 3-D glasses might well cross the line. My head still hurts ... "prolonged"!!!!!
4.17.2009 10:24pm
Anderson (mail):
Rape is clearly out of the question.

Oh, "clearly." All is now, uh, clear.

... *Why* is rape impermissible under the Bybee memos? Pretend we just invented the idea of coerced anal intercourse. Why is it worse than waterboarding?
4.17.2009 10:26pm
John Moore (www):
Anderson, you are changing the context.

Nice try, counselor.
4.17.2009 10:29pm
Bob from Ohio (mail):

Right, because the 9/11 Commission was such a bunch of hacks.


Well, Jamie Goerlick was on it.

Unlike 9/11, as you can see from this thread alone, we are talking about a very divisive issue.

I submit that every reasonably possible member has already reached a conclusion. Any people who haven't are probably too dementia stricken to be of any use.

And who picks the members? And who makes the rules? Who is on the staff?

Trust me, those people who will satisfy you are highly unlikely to satisfy me. And vice versa.
4.17.2009 10:33pm
Anderson (mail):
Anderson, you are changing the context.

OK, never mind. Just plain old rape. Why is it impermissible, chez Bybee?
4.17.2009 11:04pm
Just an Observer:
Anderson: In all fairness, the new Bybee memo was dated the same as the previously-leaked Bybee memo, which I take it was the "theory" side of the coin; the new memo applies that theory...

Thanks. That makes more sense, in an Orwellian sort of way. (No organ failure, etc.) I see the cross references to the other memo.
4.17.2009 11:17pm
Lucius Cornelius:
We are all getting emotional here. Each side has good points. I think all of us would agree that we would not want agents acting on our behalf committing unspeakable acts of violence against our enemies, no matter what the reason or provocation. Murder, rape, and mutilation should always be criminal, even in a "ticking bomb" situation.

But I won't be as definite with respect to lesser acts that can disorient, confuse, or frighten our enemies into (directly or indirectly) revealing information. I think it is healthy for all of us to debate just how far we want government agents to go in trying to get information from our enemies.

The category of the subject is also important: criminal suspects should be subject to one set of rules; enemy soldiers another; and terrorists yet another.
4.17.2009 11:26pm
John Moore (www):
Lucius... well said.
4.17.2009 11:33pm
norm (mail):
Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.
4.18.2009 12:43am
PC:
The torturers continued their activities long after there was any intelligence to be gained. One of the primary purposes (as is popular in police states) was to obtain confessions - in this case to be used in propaganda. Another was simply genuine sadism - this was not a regime that cared a whit about human rights or dignity. Another was to control the prisoners.

So when a Candian and a German can't give any intel -- having none -- we should overlook that. The former was we passed on the be tortured by proxy with no effect, the latter we did ourselves with an accusation of sodomy.
4.18.2009 12:44am
PC:
Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.

That would be barbaric. Instead we would get Iraqis to rape the children of suspected terrorists. There are tapes of this. Ask congress.
4.18.2009 12:48am
John Moore (www):
PC... when you are let out on a weekend pass, you're still supposed to take your meds. I think you forgot.
4.18.2009 2:18am
The Real Pink Pig (mail):
Wow. A very lengthy commentary about torture that only at the very end acknowledges that torture is undefined. How illuminating.
4.18.2009 2:31am
Litigator-London:
History repeats itself. The British colonial experience (the Empire on which the sun never set), included some fairly horrible examples of "dirty wars", "punitive expeditions" and the like in the course of which there were many egregious examples of human rights violations of at least equal gravity to those now in issue.

But the lessons the UK learned are that the "take the gloves off" approach to the interrogation of all categories of detainees, be they in the criminal justice system, in the hands of the intelligence services, or in the hands of the military is in the end counter-productive. Reliable confessions and reliable intelligence are obtained from detainees by humane treatment, respect for the detainee's rights, and patient, non-coercive interrogation.

Yet the mistakes we British made from about 1700 to 2000 including post 1945 in situations as diverse as Cyprus, Egypt, Iraq, Kenya, Malaya, Northern Ireland and Palestine have been repeated by successive US administrations.

Given the far higher preponderance of lawyers in the top positions in US administrations, do not the law schools and the bar associations have some responsibility for what appears to be much more than egregiously deficient legal scholarship?

The work product of Messrs Bybee, Yoo and Bradbury seems to me to demonstrate an amoral mindset incompatible with the ethical duties of counsel to the client and to the administration of public justice. In this case the client ought not to be considered as "the Administration" but more properly "the Republic" and surely these gentlemen (if that is the correct word)have ill-served the Republic.

It will be interesting to see how academic and disciplinary institutions respond.
4.18.2009 3:06am
Fact Checker:
The work product of Messrs Bybee, Yoo and Bradbury seems to me to demonstrate an amoral mindset incompatible with the ethical duties of counsel to the client and to the administration of public justice.

At least they won't be planning vacations in Spain (or probably anywhere in the EU) for the foreseeable future.
4.18.2009 4:14am
Cornellian (mail):
I can't help but wonder what Judge Bybee is thinking as he sits on the 9th Circuit bench listening to oral arguments from the lawyers who appear before him. He's got to be thinking that every single one of those lawyers has read his torture memos. Perhaps he's wondering how long it will be before they starting citing those memos to him in some police brutality case.
4.18.2009 4:20am
Cornellian (mail):
I suppose it's lucky for Judge Bybee that his torture memos were suppressed until now. It's hard to believe he would have been confirmed to his 9th Circuit seat had they been public at the time of his nomination.
4.18.2009 4:24am
Litigator-London:
Cornellian:

I don't suppose there is any prospect of Hizonner doing the gentlemanly thing and resigning his office ?
4.18.2009 7:06am
davod (mail):
"If you believe in the rule of law, then you damned well better not be trusting your safety to the premise that someone will violate the law to save you."

Good point, lost on the moralists.

Another is when do you know of the smoking gun? If you stop something it is no longer a smoking gun. Remember the trouble the UK had prosecuting when the plot to blow up multiple airlines was stopped. What about the group who wanted to use the fuel pipelines into the New York airport to create mahem - the attempt (and the case against them) was ridiculled, even by politicians. The same happened with the plot to kill soldiers at an army base - I believe it was Fort Drum.

Torture by proxy - why use the UK courts. There was a case in the US where the judge ruled evidence admissable though gained through torture by the Egyptians. In that case I read the accused even showed the court where the Egyptians had roasted him.
4.18.2009 7:15am
martinned (mail) (www):

At least they won't be planning vacations in Spain (or probably anywhere in the EU) for the foreseeable future.

Actually, now that Judge Garzon is not going to order a prosecution, I highly doubt that anyone else in Europe will.

Davod wrote:

There was a case in the US where the judge ruled evidence admissable though gained through torture by the Egyptians. In that case I read the accused even showed the court where the Egyptians had roasted him.

Do you have a cite for this? I'd be very interested to read it, especially in light of the House of Lords' ruling going the other way. (I have my Westlaw password back now.)
4.18.2009 8:07am
martinned (mail) (www):
In other news: Hilzoy's take on the memos, on Obsidian Wings


Isn't it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You'd think they might be apposite. Oddly enough, though, Steven Bradbury didn't think to include them.

(...)

With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any "prolonged mental harm." And yet, strange to say, the memos don't mention any evidence at all about the effects of these techniques on CIA detainees.
4.18.2009 8:44am
Anderson (mail):
Perhaps he's wondering how long it will be before they starting citing those memos to him in some police brutality case.

Not very likely, given that the lawyer is supposed to advance his client's interest, and irking the judge is not normally the way to achieve that.

It would have to be a pro forma, no-other-way-in-hell-will-this-defense-work kind of case.
4.18.2009 8:54am
Anderson (mail):
Re: my above comment on whether CIA was "certain" that Zubaydah had more info, today's NYT reminds us of Suskind's book, while making it clear that "certainty," in any objective sense, was simply a lie:

His interrogation, according to multiple accounts, began in Pakistan and continued at the secret C.I.A. site in Thailand, with a traditional, rapport-building approach led by two F.B.I. agents, who even helped care for him as his gunshot wounds healed.

Abu Zubaydah gave up perhaps his single most valuable piece of information early, naming Khalid Shaikh Mohammed, whom he knew as Mukhtar, as the main organizer of the 9/11 plot.

Through the summer of 2002, Abu Zubaydah continued to provide valuable information. Interrogators began to surmise that he was not a leader, but rather a helpful training camp personnel clerk who would arrange false documents and travel for jihadists, including Qaeda members.

He knew enough to give interrogators "a road map of Al Qaeda operatives," an agency officer said. He also repeated talk he had heard about possible plots or targets in the United States, though when F.B.I. agents followed up, most of it turned out to be idle discussion or preliminary brainstorming.

At the time, former C.I.A. officials say, his tips were extremely useful, helping to track several other important terrorists, including Mr. Mohammed.

But senior agency officials, still persuaded, as they had told President George W. Bush and his staff, that he was an important Qaeda leader, insisted that he must know more.

"You get a ton of information, but headquarters says, 'There must be more,' " recalled one intelligence officer who was involved in the case. As described in the footnote to the memo, the use of repeated waterboarding against Abu Zubaydah was ordered "at the direction of C.I.A. headquarters," and officials were dispatched from headquarters "to watch the last waterboard session."

The memo, written in 2005 and signed by Steven G. Bradbury, who worked in the Office of Legal Counsel, concluded that the waterboarding was justified even if the prisoner turned out not to know as much as officials had thought.

And he did not, according to the former intelligence officer involved in the Abu Zubaydah case. "He pleaded for his life," the official said. "But he gave up no new information. He had no more information to give."


Goodness, why was he pleading for his life? He was never imminently threatened with death. Silly Zubaydah!

But the TTB excuse only works where you're "certain," right? Or does strong suspicion work? Mere suspicion? Hunches? Guesses? Shots in the dark?
4.18.2009 9:37am
Richard Aubrey (mail):
My daughter had a college friend who went into Air Force intel. She was not getting the "forward" assignments, whatever that means, because she was not SERE trained. So she put in for SERE, uncommon for women.
Now she can get out front with the guys.
Strikes me that, however, that when the discussion is about how different from SERE--not much or we wouldn't be having this discussion--it's going to be tough to sell this as an atrocity.
Imagine interviewing a short, perky, cute young lady about SERE. "Boy, it was tough."
Other boards have hauled in red ink, female interrogators, desecrated Korans, and Israeli flags as "torture" in order to punch up the numbers. But once people find out what the "torture" was, they lose interest.
And now we're seeing people straining at gnats to differentiate this from SERE.
Gonna be a tough sell, guys.
4.18.2009 9:50am
martinned (mail) (www):
@Richard Aubrey: I don't know how to make this any clearer. Maybe if I make it look like an LSAT question...

SERE : "enhanced interrogation" = "surgery" : "getting stabbed in the stomach"
4.18.2009 9:57am
Mark Field (mail):
Just to follow up on L-L's point, anyone who's read Thomas Ricks' latest book, Gamble, knows that the US military in Iraq ultimately rejected the harsh methods which the enablers in this thread want to make US policy.


Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.


We don't kill our soldiers either (at least not intentionally), but a uniformed enemy soldier who does isn't committing murder.
4.18.2009 10:02am
Mark Field (mail):
Just to follow up on L-L's point, anyone who's read Thomas Ricks' latest book, Gamble, knows that the US military in Iraq ultimately rejected the harsh methods which the enablers in this thread want to make US policy.


Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.


We don't kill our soldiers either (at least not intentionally), but a uniformed enemy soldier who does isn't committing murder.
4.18.2009 10:02am
Anderson (mail):
Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.

Utter inability to confront the argument. No one is making any legal distinction b/t rape and the permissible methods as defined by the Bybee memos.

Now we're supposed to think that torture is "whatever we don't do to our soldiers"? The fallacy is obvious.

Moreover, one objective of SERE training is to resist torture. (I have doubts how effective it is there, but let that slide.) Otherwise, what are we supposedly training our pilots to do? Resist bad guys who have an aversion to torture? That's a handy skill set, all right.

So, if they're being taught to resist torture, then by definition, torture methods have to be used on them. Am I missing something here?
4.18.2009 10:08am
C. Gittings (mail) (www):
Dale Carpenter,

Torture, as prohibited by U.S. law, is treatment that inflicts "severe physical or mental pain or suffering." But how do we know when a particular interrogation technique imposes "severe physical" or "severe mental" pain or suffering?


You are mistating the statute; what it actually says is:

"[...] "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control [...]"

And as badly drafted as the statute is, how much suffering is "severe" is quite obvious: however much the perpetrator thought would produce the intended result.

The Yoo - Bybee - Yoo 'analysis' is simply a fraudulent exercise in 1 + 1 = 0 or 3. They are both criminals who committed their crimes in direct violation of their oaths as public officials for the express purpose of subverting the laws of the United States.

Some other notes:

18 USC 2441(c)(1)makes it an offense to commit any grave breach of Geneva 1949, which includes "torture or inhuman treatment."

18 USC 2441(c)(3) makes it an offense to commit any violation of Geneva Common Article 3, which would include "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or
"outrages upon personal dignity, in particular humiliating and degrading treatment."

18 USC 2441(c)(2) makes it an offense to commit any violation of articles 23, 25, 27, or 28 of the Hague IV (1907) Annex of Regulations.
4.18.2009 10:25am
Cornellian (mail):
Perhaps he's wondering how long it will be before they starting citing those memos to him in some police brutality case.

Not very likely, given that the lawyer is supposed to advance his client's interest, and irking the judge is not normally the way to achieve that.


I could see it brought up as part of a motion to recuse. If you're willing to make that motion, you're probably already willing to risk irking the judge.
4.18.2009 10:27am
Tom Perkins (mail):

Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?


How is that relevant when the same argument could be made against imprisonment for life, the death penalty, or the perfectly Geneva compliant practice of retaining captured combatants until the cessation of hostilities?

Forswearing the use of torture under any and all circumstances makes all the prudent sense and has all the moral rectitude, of loudly and proudly disavowing the use of hammers, when there are yet nails.

Yours, TDP, ml, msl, &pfpp
4.18.2009 10:27am
Tom Perkins (mail):

Now we're supposed to think that torture is "whatever we don't do to our soldiers"? The fallacy is obvious.


Actually you'll have to spell out how it is not a valid premise.


Moreover, one objective of SERE training is to resist torture. (I have doubts how effective it is there, but let that slide.)


Oops. I think you just admitted torture works.


So, if they're being taught to resist torture, then by definition, torture methods have to be used on them. Am I missing something here?


Yes you are. Very much so.

What has been done during SERE is not torture because it is not expected to cause lasting disability, after all, they are expected to be pilots later. What has been done to the very few AlQaeda combatants who have been treated in a like manner is similarly not torture.

Yours, TDP, ml, msl, &pfpp
4.18.2009 10:35am
DennisN (mail):
@ Anderson


So, if they're being taught to resist torture, then by definition, torture methods have to be used on them. Am I missing something here?


Much military training involves measures that simulate or stop short or the actual activities required in combat. That's why we fire blanks, after all.

So I think a strong argument can be made that, if we did it to our SERE trainees, then it stops short of torture.
4.18.2009 10:48am
rosetta's stones:
Litigator-London: "...do not the law schools and the bar associations have some responsibility for what appears to be much more than egregiously deficient legal scholarship?"
......................................

BWAHAHAHAHAHAHAHAHAHAHA! ... oh man..... whoooo... WHOOOOOO.... MAN .....sorry, but that was a good one, but seriously, they must breed a different strain of lawyer across the pond if you think lawyers here will collectively act with any reasonable level of "responsibility" and police themselves and.... uh.....BWAHAHAHAHAHAHAHAHAHAHAHAHA !
4.18.2009 11:53am
PC:
PC... when you are let out on a weekend pass, you're still supposed to take your meds. I think you forgot.

Are you questioning the accuracy of my statements? The Internets have this great tool called Google. You should use it some time.
4.18.2009 11:59am
Anderson (mail):
Oops. I think you just admitted torture works.

Uh, no. I said I was skeptical whether SERE methods can make one "resist" torture.

Our POW's in Vietnam were tortured into "confessions" for propaganda purposes.

Do you maintain those confessions were true? Is that what you mean by "torture works"?

... And because some people seem reading-impaired, I'll repeat what has already been pointed out:

SERE training, however scary, is done by YOUR OWN COUNTRYMEN, as part of a TRAINING PROGRAM, which you can DROP OUT OF if you can't hack it.

KSM et al. were tortured by ENEMIES, in a HOSTILE INTERROGATION, which they COULD NOT ESCAPE.

I also doubt whether any SERE trainees were subjected to the COMBINATIONS AND DURATIONS of the conditions inflicted on our Qaeda prisoners.
4.18.2009 12:13pm
C. Gittings (mail) (www):
DennisN,

"So I think a strong argument can be made that, if we did it to our SERE trainees, then it stops short of torture."

BS. The intent was to train the troops; the intent was to torture the prisoners to force tham to act against their will. End of story.

And here's an experiment you can try at home: inflict such abuse on your own children and see what your local law enforcement authorities think about it.

You people are such hypocrites.
4.18.2009 12:17pm
My Middle Name Is Ralph:

@Richard Aubrey: I don't know how to make this any clearer. Maybe if I make it look like an LSAT question...

SERE : "enhanced interrogation" = "surgery" : "getting stabbed in the stomach"


Seriously, how hard is to understand this concept: consent - never torture; no consent - may be torture.
4.18.2009 12:57pm
My Middle Name Is Ralph:

Do we rape our soldiers for training? Our interrogators? I don't know, but I've never heard that we do. If not it's torture.


We're back at consent. Sex with consent = not rape; without consent = not rape. SERE methods with consent = not torture; without consent = may be torture.
4.18.2009 1:01pm
My Middle Name Is Ralph:
Corrected post: We're back at consent. Sex with consent = not rape; without consent = not rape. SERE methods with consent = not torture; without consent = may be torture.
4.18.2009 1:03pm
C. Gittings (mail) (www):
Re rape etc, here are a few questions for the apologists...

Would you be will willing to rape the 5-year-old daughter of a suspected terrorist in order to coerce him to divulge information?

Or water-board her?

And if not in either case, why not?

Why would you be willing to do something to an adult, but not to a child?

When does a child become an adult?
4.18.2009 1:21pm
My Middle Name Is Ralph:
I have some serious questions for those who think waterboarding was not torture. Using the legal framework and analysis in the torture memos, answer, if you dare, whether the following actions constitute torture as to the detainee:

1. Sodomizing a detainee, but only is such a way that it would not cause severe physical pain.

2. Conducting a mock execution of a detainee by holding a loaded gun to a detainee's head and threatening to shoot him. Assume the detainee is made to believe that the threat will be carried out if he fails to cooperate.

3. Cutting off a detainee's finger while under anasthesia and threatening to cut off more fingers if he does not cooperate. Assume for the sake of this question that the detainee does not and will not experience any severe physical pain due to medical treatment and pain medication.

4. Faking the rape, torture, or murder of a detainee's child in his presence and threatening to do the same to his other children. Assume the detainee really believes the rape, torture, or murder occurred and that the threat will be carried out if he fails to cooperate.

5. Actually raping, torturing, or murdering a detainee's child in his presence and threatening to do the same to his other children. Remember, the question is whether this is torture of the detainee, not the child.
4.18.2009 1:25pm
Tom Perkins (mail):

Uh, no. I said I was skeptical whether SERE methods can make one "resist" torture.


Then you are saying torture cannot be resisted. That means it works. That it can also be used to elicit false confessions is not evidence it is not also quite useful it obtaining real information.


KSM et al. were tortured by ENEMIES, in a HOSTILE INTERROGATION, which they COULD NOT ESCAPE.


Well, no, they weren't. They were treated harshly*, they were made to feel temporary pain, and they were made to be scared—nothing permanent or even particularly injurious was done was done.

*But so mildly that Pelosi, et al, were concerned we weren't being harsh enough. That fact alone convinces me this has nothing really to do with right and wrong, it's really just about partisan politics.

Consent in this case can have nothing to do with whether the harsh interrogation was torture precisely in the same fashion that imprisonment does not become "torture" when the prisoner objects to it. After all, imprisonment for life is certainly harsh, but no one calls it torture.

Or maybe you would.

Also, THE CAPS DO NOT HELP YOU MAKE SENSE.

Yours, TDP, ml, msl, &pfpp
4.18.2009 1:25pm
Lucius Cornelius:
Is it possible to make interrogation subjects feel pain, feel disoriented, and/or be afraid in a way that could make them (directly or indirectly) reveal useful information? Is it possible to do this using means that do not constitute "torture?"

I think that any such interrogation of legitimate POWs would be improper. I think that interrogations by the police of suspects (prior to and after charging) could possibly be proper (with appropriate compliance with the right to counsel). I would hope such interrogation of war criminals (terrorists and other unlawful belligerents) is proper. However, genuine "torture" is never permissible.

But the difficult issue is going to be, "what constitutes genuine torture?" There will be a range of good faith disagreement. But at some point, we need to establish that certain conduct is illegal and will be prosecuted. I will not fault an official who, in good faith, seeks guidance from legal counsel on this issue.
4.18.2009 2:10pm
Jeff Wilkerson (mail):
"The memos were insurance against witch hunts - even though they *did* have a ticking bomb scenario.

There seems to be a child like faith that the interrogators will go 24-Jack when we really need them to, even when we send them the message that they'll be severely punished for doing so.

If you believe in the rule of law, then you damned well better not be trusting your safety to the premise that someone will violate the law to save you."

On what do you base your claim that they had a ticking bomb scenario. Unless you are being metaphorical I'm pretty sure you are making a false (or at the very least, unsupported, claim). And if you are being metaphorical I urge you to explain the metaphor, as I doubt it holds.

Secondly, the entire point of the outlaw but pardon approach is that it makes interrogators consider the possibility that they will be severely punished before torturing. I don't think that belief in the rule of law and belief in the appropriateness of a necessity defense are mutually exclusive, nor do I have so little faith in those that work for the CIA that I consider it a serious possibility that they would refrain from doing what was necessary in an actual ticking time bomb scenario. And as I said before, I think anyone who does probably has a screw loose.
4.18.2009 2:37pm
John Moore (www):

Secondly, the entire point of the outlaw but pardon approach is that it makes interrogators consider the possibility that they will be severely punished before torturing. I don't think that belief in the rule of law and belief in the appropriateness of a necessity defense are mutually exclusive, nor do I have so little faith in those that work for the CIA that I consider it a serious possibility that they would refrain from doing what was necessary in an actual ticking time bomb scenario.


Your faith in the willingness of our intelligence professionals to subject themselves to criminal penalties to save your butt is pathetic.
4.18.2009 2:47pm
John Moore (www):

Reliable confessions and reliable intelligence are obtained from detainees by humane treatment, respect for the detainee's rights, and patient, non-coercive interrogation.


Once again, this is only true for certain conditions. Certainly, if I were an interrogator, I would prefer to use the soft techniques, aimed at gaining rapport, and without inflicting any pain. It would be less painful to me, and far more interesting and challenging. In some circumstances, it would be ineffective compared to other techniques, and in other circumstances, there might not be time.

Remember, high ranking AQ members were being asked to commit treason against a religious cause they are willing to give their lives for.
4.18.2009 2:56pm
John Moore (www):
At least they won't be planning vacations in Spain (or probably anywhere in the EU) for the foreseeable future.
4.18.2009 2:57pm
John Moore (www):
trying again...


At least they won't be planning vacations in Spain (or probably anywhere in the EU) for the foreseeable future.


Anyone cheering this should serious consider what they are advocating. The same logic that makes this possible also allows EU countries (or Canada) to prosecute members of this board for posting opinions that might be offensive to protected groups (Muslims, primarily).

International jursidiction on these sorts of things is one of the most dangerous trends in the trans-nationalist progressive ideologyidiocy.
4.18.2009 2:59pm
John Moore (www):

Moreover, one objective of SERE training is to resist torture. (I have doubts how effective it is there, but let that slide.)

Another objective is to demonstrate to the trainees that they *will* ultimately break and give up valuable information, and to teach how to deal with this committing this betrayal or with other prisoners who have broken.
4.18.2009 3:01pm
John Moore (www):

SERE training, however scary, is done by YOUR OWN COUNTRYMEN, as part of a TRAINING PROGRAM, which you can DROP OUT OF if you can't hack it.

As I posted on the other thread...

When I went through SERE, dropping out was construed as a violation of direct orders, for which you could be courts martialed. It was also a cause for permanent revocation of all security clearances. This is not exactly an easy "drop out."
4.18.2009 3:03pm
John Moore (www):

On what do you base your claim that they had a ticking bomb scenario. Unless you are being metaphorical I'm pretty sure you are making a false (or at the very least, unsupported, claim). And if you are being metaphorical I urge you to explain the metaphor, as I doubt it holds.

The "ticking bomb scenario" is a jargon term that has metaphorical derivation.

The intensive interrogations took place not long after the 2001 attacks, when there was valid and strong fear of subsequent attacks (which were indeed planned, as the interrogations and other intelligence revealed). That meets the ticking bomb criteria (major damage, short time to acquire information).
4.18.2009 3:08pm
Bart (mail):
Anderson (mail):

Re: my above comment on whether CIA was "certain" that Zubaydah had more info, today's NYT reminds us of Suskind's book, while making it clear that "certainty," in any objective sense, was simply a lie...

Suskind's book relies upon FBI CYA for their failure to obtain actionable intelligence from Zubaydah and has no sources with knowledge of what Zubaydah told CIA during its interrogation. In short, Suskind used biased sources to do the innuendo.

All the sources with knowledge of what Zubaydah told CIA during its interrogation agree that he provided actionable intelligence which led to the capture of KSM.
4.18.2009 3:09pm
mattski:

Suskind's book relies upon FBI CYA for their failure to obtain actionable intelligence from Zubaydah and has no sources with knowledge of what Zubaydah told CIA during its interrogation.

Well, Bart, "according to one former intelligence official with direct knowledge of the case,"

Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs


In your unscrupulous hands "CYA" is a handy, unsourced device for challenging evidence you find inconvenient.
4.18.2009 3:52pm
Richard Aubrey (mail):
martinned
If you have to expend trainloads of pixels to parse the difference between the techniques in the memos and SERE, it's because the difference is extremely small, vague, and hard to see.
If it were clear, a bright line, you could do it in a sentence.

So, the difference being so small that a murder of lawyers is spending, cumulatively, hundreds of hours trying to make it big means...the difference is so small that, whatever you believe or pretend to believe, you won't have much luck selling it to non-partisan people.
4.18.2009 3:53pm
mattski:
*that's from today's NYT.
4.18.2009 3:54pm
mattski:

If it were clear, a bright line, you could do it in a sentence.

It is a difference of degree, not kind.
4.18.2009 3:56pm
Richard Aubrey (mail):
mattski
Clearly. Sorry.
Of course it's a matter of degree. But to claim a matter of degree is--as you imply--just as clear as a matter of kind is bogus.
Point is, you have to sell it as a huge difference in degree to ordinary people who have brains, when the difference is so small you are involved in a cooperative project to inflate it with hot air so it will be, as I say, salable. And the effort is looking more and more obvious.
And, unfortunately for your efforts, others have been here before you rending their lapels over things which are obviously not torture nor, in the context, even particularly harsh. And claiming it was torture. The more energetic on this issue have damaged your credibility.

Among other things a memo never hurt anybody. You need to find somebody doing this stuff. Not just writing about it.
4.18.2009 4:11pm
davod (mail):
Davod wrote:
There was a case in the US where the judge ruled evidence admissable though gained through torture by the Egyptians. In that case I read the accused even showed the court where the Egyptians had roasted him.

Do you have a cite for this? I'd be very interested to read it, especially in light of the House of Lords' ruling going the other way. (I have my Westlaw password back now.)

I tried googling this but cannot find it. This occurred in the 90s and, at the time it was reported in the media.

Anyone with access to the legal data bases` should be able to find the case.
4.18.2009 4:51pm
mattski:
Also, Richard Aubrey &John Moore, did you read the opinio juris link in the thread up above?

Very interesting and pertinent, I think.
4.18.2009 5:06pm
John Moore (www):
mattski,

A distinction without a relevant difference.

Spltting hairs.

The sort of tortuous analysis that cripples our intelligence agencies.
4.18.2009 5:13pm
Jeff Wilkerson (mail):
John Moore:

"The "ticking bomb scenario" is a jargon term that has metaphorical derivation.

The intensive interrogations took place not long after the 2001 attacks, when there was valid and strong fear of subsequent attacks (which were indeed planned, as the interrogations and other intelligence revealed). That meets the ticking bomb criteria (major damage, short time to acquire information)."

To the extent you're right about the "ticking time bomb" being a jargon term (which I'm not fully conceding, it is often used as a rhetorical device, and the hypo used is, quite literally, a ticking time bomb) it was inappropriate to use it in that sense in response to my original comment, which was obviously referring to an actual ticking time bomb. Equivocation is no way to engage in honest dialogue.

Secondly, to the extent that it can be used as jargon term, major damage and a short time to acquire information would not be its only elements. It would also require 1. A specific and ascertained danger, and 2. Secure knowledge that the person being interrogated had information directly related to said specific and ascertained danger. Neither of these elements would be met by the situations under discussion.

Lastly, if nearly 4 years after 9/11 was "not long after...the attacks" what is long after the attacks? 5 years? 6 years? Today?
4.18.2009 5:14pm
John Moore (www):

A specific and ascertained danger, and 2. Secure knowledge that the person being interrogated had information directly related to said specific and ascertained danger. Neither of these elements would be met by the situations under discussion.

I think not. The danger need not be specific, and the knowledge need be only reasonable.
4.18.2009 5:29pm
Jeff Wilkerson (mail):
Well, John,

If a non specific danger (meaning, of course, that we do not know the severity of the danger) that we have only a reasonable certainty that the the interrogated has information about, is sufficient in your mind to warrant torture, that is fine. I think you're twisted, but that's your prerogative.

But that is much different from saying that we're facing a "ticking time bomb" scenario - which is the point I commented on in the first place.
4.18.2009 5:39pm
Richard Aubrey (mail):
mattski.
As I say, an obvious effort to inflate the nearly invisible into something useful.

Not working.

To be frank, I expected really, really bad stuff here. The hot needles in the eyeball and so forth. That would have been different. Also easier to sell for your side.

But, on this thread, at least, the primary issue seems to be how can we make a small difference between this and SERE into something much larger and therefore useful.
4.18.2009 5:44pm
John Moore (www):
Jeff,

If a non specific danger (meaning, of course, that we do not know the severity of the danger)

An interesting leap in logic.


I think it's sufficient to justify the kinds of interrogation we used, including waterboarding. So did the leaders of the house and senate.

I guess we're all twisted.

BTW... I think you're a member of a pampered elite that has an unreasonably and historically high standard for the treatment of people like KSM. I also think it's easy to hold such a position when you know that the resulting harm (which you cannot imagine happening) will never be traced back to the damage that you and your ilk will inflict on our national abilities to defend ourselves.
4.18.2009 5:50pm
John Moore (www):

But, on this thread, at least, the primary issue seems to be how can we make a small difference between this and SERE into something much larger and therefore useful.


Actually, I think it's how to justify continued revulsion towards those who tried to defend us, while ignoring the very real threats, the lessons history tells us, and just plain common sense. Of course, since it's a law blog, the big issues are obscured by hair splitting by the time we get this far into the comment threads.
4.18.2009 5:52pm
C. Gittings (mail) (www):
John Moore,

Nobody's talking about prosecuting them for their opinions, but for criminal violations of the law.

The reason that they shouldn't be prosecuted overseas is simply that we should be prosecuting them ourselves under our own laws, our obligations under international law, and the Constitution. These people betrayed their duty as government officials.

The only thing you're really objecting to is enforcing the laws of the United States.

The reason you're doing that is you want people who've sworn to uphold the laws of the United States to commit, aid, and abet crimes against those laws in violation of their sworn duty and our own laws.

And you ought to be ashamed of yourself.
4.18.2009 5:53pm
John Moore (www):
Gittings, they are already convicted in your mind.

You ought to be ashamed of yourself.

And if the laws they "violated" are really as restrictive as you claim, then they should be changed. Our constitutional republic is not supposed to be a suicide pact.
4.18.2009 5:58pm
Jeff Wilkerson (mail):
Firstly, its not a leap in logic at all. If we do not know of the specific danger, then how can we know what the level of danger posed is? That is (almost) a logical impossibility. I suppose that we could know that an interrogated person might have knowledge on one of several possible specific dangers, and that would, strictly speaking, not be a 'specific' danger, but a group of specific dangers. But I doubt that's what you were thinking of.

In what sense are suggesting I'm pampered? And I might say that my standard of treatment for prisoners was "historically" high if we are talking about the history of the world. (Not that that is a bad thing, progress is to be expected). If, however, we are looking at the history of the United States, and by "people like KSM" you mean prisoners of war, it is your standard of treatment that is historically low.

Further, I think that history will see people of your "ilk" as those who caused us the most harm. Good, reliable, information is gained not by torture but by trust and by treating people with dignity - there was an interesting interview with a former CIA interrogator on NPR about this, worth looking up if you're interested.
4.18.2009 6:00pm
Jeff Wilkerson (mail):
And if they're going to go after anyone criminally (which I'm not sure they should) it should be Bybee and Yoo. Those who were actually using the techniques believed themselves to be acting under color of law. But Yoo and Bybee's legal advice was profoundly wrong, and without legitimate support - and they knew it.
4.18.2009 6:04pm
John Moore (www):

If, however, we are looking at the history of the United States, and by "people like KSM" you mean prisoners of war, it is your standard of treatment that is historically low.

KSM was not a prisoner of war. By historical standards, he would have been shot as an illegal combatant (as were the SS infiltrators during the Battle of the Bulge).


Good, reliable, information is gained not by torture but by trust and by treating people with dignity - there was an interesting interview with a former CIA interrogator on NPR about this, worth looking up if you're interested.


I tire of hearing this repeated as if it were the entire truth. Good reliable information is rarely obtained at all. Useful information is obtained by all sorts of techniques, depending on the circumstances.

Do you REALLY believe that coercive interrogations will always be less useful than the softer techniques? Tell that to a cop.
4.18.2009 6:05pm
Jeff Wilkerson (mail):
Well, no cop should know the answer to that question, because these techniques are undoubtedly illegal for use on domestic offenders. And yes, I do believe that coercive techniques are less useful. People say what you want to hear under coercion. Query: how many of those falsely convicted of murder have confessed under coercion?
4.18.2009 6:15pm
jukeboxgrad (mail):
moore:

A distinction without a relevant difference.


Ipse dixit. The crucial fact you're trying to deny is this:

the Agency's use of the technique is different than that used by in SERE training


That statement is from a CIA interrogator. His judgment is infinitely more relevant than yours. And you're trying to sweep this fact under the rug because it demolishes one of the pro-torture crowd's favorite arguments: that we only did what do to our own people, in SERE.

I think it's how to justify continued revulsion towards those who tried to defend us


Whatever it is they thought they were defending isn't worth defending if it can't be defended without torturing people. What a great way to defend American values and the rule of law: by betraying American values and the rule of law.
4.18.2009 6:49pm
John Moore (www):

And yes, I do believe that coercive techniques are less useful. People say what you want to hear under coercion. Query: how many of those falsely convicted of murder have confessed under coercion?


Coercive techniques and non-coercive techniques (well, it's really a continuum - when you have a guy in custody, that in itself is coercion) both have their places and their relative values.

My point is that you cannot rule out the use of more coercive techniques based on the fact that they are not perfectly reliable. They have their uses. That should be bloody obvious. They are also repugnant and should be used as little as necessary.
4.18.2009 7:05pm
John Moore (www):

Whatever it is they thought they were defending isn't worth defending if it can't be defended without torturing people. What a great way to defend American values and the rule of law: by betraying American values and the rule of law.


More mindless absolutism.

Do you REALLY believe that the US is not worth defending of there is even one case where its defense needs, for arguments sake, torture far worse than mere wateboarding?

Why is waterboarding so evil that the use of it makes us not worth defending, while shooting missiles into civilian homes in Pakistan is not?
4.18.2009 7:07pm
C. Gittings (mail) (www):
John Moore,

Gee, I've spent the last seven and half years trying to defend the United States from the worst enemies we have...

Right wing fanatics who think that subverting our own laws for criminal purposes or giving our President the powers of Hitler or Stalin are just good ideas. Such people are the best weapons Al Qaeda has.

*

Shooting missiles into civilian homes in Pakistan is WORSE than water-boarding is. The difference is that between murder and aggravated assault.
4.18.2009 7:50pm
bluecollarguy:
"Shooting missiles into civilian homes in Pakistan is WORSE than water-boarding is. The difference is that between murder and aggravated assault."



So when will you be rallying the troops to form a 'Truth Commission' to investigate the Obama Administration's "murder" of jihadists in Pakistan?
4.18.2009 8:44pm
John Moore (www):
Yeah... I can hardly wait!
4.18.2009 9:00pm
John Moore (www):
nicehonesty

Great phrase: "virtue-driven commenters "

C. Gittings:

Gee, I've spent the last seven and half years trying to defend the United States from the worst enemies we have...

Right wing fanatics who think that subverting our own laws for criminal purposes or giving our President the powers of Hitler or Stalin are just good ideas. Such people are the best weapons Al Qaeda has.


My blog is named for people like you.
4.18.2009 9:06pm
jukeboxgrad (mail):
moore:

My point is that you cannot rule out the use of more coercive techniques based on the fact that they are not perfectly reliable. They have their uses. That should be bloody obvious. They are also repugnant and should be used as little as necessary.


What if it's "necessary" to use rape, or mutilation, to supposedly defend ourselves? According to Yoo, the president has the power to crush a child's testicles. Do you defend that statement? And if not, why not? What if it's "necessary?" And what if I'm 'only' applying electric shock to the child's testicles, but not crushing them? By what moral magic do you decide that certain forms of torture are OK if they're "necessary," but others are not?

Do you REALLY believe that the US is not worth defending of there is even one case where its defense needs, for arguments sake, torture far worse than mere wateboarding?


Do you REALLY believe that the US is not powerful enough to defend itself without torturing people? Even though we spend as much on defense as the rest of the world combined? But we're nevertheless so weak and vulnerable that our survival is at stake if we're not willing to torture people? Is that REALLY your view of how powerless and defenseless we are?

And why are you trying to deny the fact that the CIA admitted that what they do is different from SERE?
4.18.2009 9:32pm
John Moore (www):
JBG

My beliefs are pretty clear on the *relevant* topic: I believe we should use waterboarding in certain circumstances.


Do you REALLY believe that the US is not powerful enough to defend itself without torturing people?


Are you really that ignorant about asymmetric warfare and counter-intelligence, or just intentionally dense.
4.18.2009 10:14pm
Anderson (mail):
When I went through SERE, dropping out was construed as a violation of direct orders, for which you could be courts martialed.

Okay, I'm calling bullshit.

Give me one documented example of anyone court-martialed for inability to hack a SERE course.
4.18.2009 10:42pm
C. Gittings (mail) (www):
John,

The drooling insults of a lying fascist bigot like you are nothing I'm going to lose any sleep over.

There's nothing complicated going on here:

YOU ARE A LIAR.

I've already demonstrated that fact, and you've done nothing but wet your pants and bellow like a stuck pig ever since.
Now quit wasting my time with your malicious drivel.
4.18.2009 10:51pm
jukeboxgrad (mail):
moore:

My beliefs are pretty clear on the *relevant* topic: I believe we should use waterboarding in certain circumstances.


Your rationale for permitting certain forms of torture but not others is anything but clear. Why are you ducking the question? If electric shock is "necessary," then why not use it?

Do you REALLY believe that the US is not powerful enough to defend itself without torturing people?


Are you really that ignorant about asymmetric warfare and counter-intelligence, or just intentionally dense.


I take that as a yes, that you really do believe that the US is not powerful enough to survive unless it tortures people. Did I get that right? And why aren't you willing to give this simple question a direct answer?

And why are you still trying to deny the fact that the CIA admitted that what they do is different from SERE?
4.18.2009 11:11pm
John Moore (www):

Okay, I'm calling bullshit.

Give me one documented example of anyone court-martialed for inability to hack a SERE course.

We were specifically ORDERED to not give out any useful information during interrogation (the part we are talking about). We were informed that if we did so, we would lose all security clearances and could be courts martialed.

I have no idea if they ever courts martialed someone on that, but I sure as hell wasn't going to take the chance (not to mention that I was taking the course seriously as training for what I might later encounter).

They may have changed this, now that they use the much more effective waterboarding technique.
4.18.2009 11:17pm
John Moore (www):

I take that as a yes, that you really do believe that the US is not powerful enough to survive unless it tortures people. Did I get that right? And why aren't you willing to give this simple question a direct answer?


I chose not to give a direct answer because the question was designed to mislead.

What makes you think you deserve a simple answer to any question you choose to frame?
4.18.2009 11:20pm
John Moore (www):
Gittings,

Thank you for removing your mask.
4.18.2009 11:20pm
John Moore (www):
JBG

Have you stop beating you wife yet? A yes or no answer is required.
4.18.2009 11:22pm
jukeboxgrad (mail):
moore:

What makes you think you deserve a simple answer to any question you choose to frame?


If you think anyone is going to take you seriously despite your routine practice of ducking questions that are simple, relevant, and fair, that's your problem.
4.18.2009 11:59pm
zuch (mail) (www):
John Moore:
[JBG]: Do you REALLY believe that the US is not powerful enough to defend itself without torturing people?

[John Moore]: Are you really that ignorant about asymmetric warfare and counter-intelligence, or just intentionally dense.
If I may: That doesn't answer JBG's question. In the interest of actual discussion, you should attempt that.

Cheers,
4.19.2009 12:36am
John Moore (www):

If you think anyone is going to take you seriously despite your routine practice of ducking questions that are simple, relevant, and fair, that's your problem.

I'm not worried about that. You, I will never convince. Other readers can make their judgments on the overall thread.
4.19.2009 12:51am
John Moore (www):
Okay, Zuch

Define "defend"

I believe that US "power" is not sufficient to defend against certain real threats, under certain real conditions, without using coercive interrogation techniques up to and including waterboarding.


Are those threats existential? I don't think so - at least not until the threat is a highly virulent contagious biological agent.

Are those threats important? Are many lives in the balance? Yes, they are.

You notice that I just asked myself two more relevant questions and then answered them/
4.19.2009 12:58am
My Middle Name Is Ralph:

Okay, I'm calling bullshit.

Give me one documented example of anyone court-martialed for inability to hack a SERE course.


Same place John got his at least 1 death a year during SERE training "fact"; he pulled it out of his a@@. What a joker.
4.19.2009 1:10am
John Moore (www):
Ralph, you have absolutely no evidence that I pulled that out of my ass. In fact, there is plenty of reason to believe, without taking my word for it, that the number is in a reasonable range.

Likewise on the courts martial.

Frankly, calling your opponent in an argument a liar is not exactly a respectable tactic.,

Apparently, to you, if it isn't written by a reporter or a judge, then it simply is a lie.

You must have a pretty limited view of the world.
4.19.2009 1:19am
My Middle Name Is Ralph:

In fact, there is plenty of reason to believe, without taking my word for it, that the number is in a reasonable range.


Then why don't you cite it?
4.19.2009 1:25am
John Moore (www):
Cite what? The reason? Isn't it bloody obvious?

Take 10000 men per year, ages ranging from 19-45, don't feed them for a week or two, put them through extremely strenuous field exercises, beat them (yes, in my SERE class, they beat people they caught in the E&E exercises), subject them to coercive interrogation.

What do YOU think will happen? Are you numerate?
4.19.2009 1:29am
My Middle Name Is Ralph:
Do you not understand what the word "cite" means? Are you illiterate? It means don't pull the numbers out of your ass like you're want to do. Cite please or don't bother responding.
4.19.2009 1:49am
C. Gittings (mail) (www):
John Moore,

I don't need a mask -- and you're the one the hiding with your tail between your legs.

You can ask me anything and get a straight answer.

If you don't like how a question is framed, you can always reframe it yourself easily enough, or add questions of your own, but you just reflexively blow snot and smoke.

My questions are entirely straight forward. So are your evasions.
4.19.2009 2:00am
John Moore (www):
Gittings,

I have no interest in debating with people who spew this kind of vitriol at me.
4.19.2009 2:08am
John Moore (www):
Ralph,

I cite as follows:

Told to John Moore by SERE instructors at the start of his SERE training, Warner Springs CASERE school, Dec 1967.

You have two choices: call me a liar or not.

Or, you could do the reasonable thing and consider the reasonableness of the number.

Or you could do the more reasonable thing and stop badgering me about this, since I didn't push the issue in the first place.

The number is to the best of my knowledge, and I have one hell of a lot more knowledge about it than you do.
4.19.2009 2:11am
C. Gittings (mail) (www):
John Moore,

OH BS. You've been dishing it out with a shovel yourself, and objective descriptions are NOT vitriol. Fascist and bigot have specific meanings, and you're a classic example of both.

Now put up or shut up you contemptible hypocrite.
4.19.2009 8:58am
Richard Aubrey (mail):
Seems reasonable that one death a year occurs at SERE. That would be low for most field training.
Non-partisans, those without spittle dripping from their mouths, would think about it in those terms. Guys get killed in training all the time.
To reverse it: Would it be reasonable to assume nobody dies in SERE training? Considering the death rates in other kinds of training?
Juke and certain others demand cites to the reasonable or the well-known in the expectation that the other party isn't interested in the effort. From that, juke and certain others pretend that the assertion is false, a lie.
Nobody has to buy that. Nobody does, although there is a deal of pretending.
4.19.2009 9:48am
Tom Perkins (mail):
@ C Gittings


Fascist and bigot have specific meanings, and you're a classic example of both.


Actually so far he isn't. This man is a bigot. This President is a fascist.

You're using these words and I don't think you know what they mean. As long as we're talking about definitions.


But then your definition of things is one almost no one would trust.

Yours, TDP, ml, msl, &pfpp
4.19.2009 10:57am
jukeboxgrad (mail):
moore:

I believe that US "power" is not sufficient to defend against certain real threats, under certain real conditions, without using coercive interrogation techniques up to and including waterboarding.


Where is your evidence that torture has ever made us safer? And why stop at waterboarding? Don't you realize there "are many lives in the balance?"

Take 10000 men per year, ages ranging from 19-45, don't feed them for a week or two, put them through extremely strenuous field exercises, beat them (yes, in my SERE class, they beat people they caught in the E&E exercises), subject them to coercive interrogation. What do YOU think will happen? Are you numerate?


The number dead should be at least 10-20, not 1. That's what's implied by death rate statistics, even without introducing the adverse conditions. So why is it just one? Are you numerate?

In a population that size, a bunch of people would die, in a year, of natural causes. But you're claiming one died specifically as a result of SERE. But as several people have pointed out, if SERE was actually killing someone every year, that wouldn't be a deep dark secret. There have already been very public scandals regarding sexual abuse at SERE. If SERE was killing people, that would not be a secret.
4.19.2009 12:31pm
Andrew J. Lazarus (mail):
"competent interrogation" - what, like convincing him you're his bud, sharing a brewski with him, or telling him you can get him several of his 72 virgins right here, right now?

This is certain to work on fanatical hardened killers, whose religion tells them that their FSM commands them to lie to the infidels, right?
In terms of getting accurate intelligence, Plan A works better. That's a repeatedly-confirmed fact. In terms of making the interrogator and the peanut gallery feel like a macho heroes, I guess torture works better, at least as seen on this thread.
4.19.2009 1:05pm
John Moore (www):

The number dead should be at least 10-20, not 1. That's what's implied by death rate statistics, even without introducing the adverse conditions. So why is it just one? Are you numerate?


So now I my number is too low, when before I was lying because it was not zero.

You just can't give it up, can you, not matter the relevance? I suspect most others can understand the idiocy of your line of reasoning, but if you read this carefully, even you might be able to figure out why your statistics are irrelevant. Consider this a test, eh?


But you're claiming one died specifically as a result of SERE.

That is an out and out lie.

Here is the context. Compare that to what you claim I am saying, and let others decide whether you are dishonest or just not careful.
4.19.2009 2:49pm
John Moore (www):

In terms of getting accurate intelligence, Plan A works better. That's a repeatedly-confirmed fact.


Like usual, you are being absolutist. Plan A works with many subjects, given time. Plan B is required with others.

In order to sustain your assertion, one must believe that all interrogators using Plan B are either fools or sadists. That's a big stretch.
4.19.2009 2:51pm
C. Gittings (mail) (www):
Tom Perkins,

My definition of bigotry is uncomplicated:

To regard another human being as an inferior being, an animal, or a thing.

And I daresay Jeremiah Wright is NOT any sort of a bigot.

As for Fascism, I'll refer you to Umberto Eco's essay, UR-FASCISM. Let me add that I associate the term with xenophobia, nationalism, militarism, aggression, colonialism, police states, and the concentration of unreviewable powers in the hands of a supreme leader or junta.

President Obama would only be a fascist in the the trivial sense that he is the supreme leader of a fascist state created by George Bush and Dick Cheney from 2001-2009 in violation of their oaths of office. Unlike Bush and Cheney however, Obama does not believe in fascism, and he is firmly committed to restoring the United States to a constitutional republic.

And the phony through-the-looking-glass smears you neo-fascists spew are just disgracefully dishonest. All you're really telling me by calling Wright a bigot and Obama a fascist is that you're both a racist and a liar.

QED.
4.19.2009 4:44pm
Anderson (mail):
In order to sustain your assertion, one must believe that all interrogators using Plan B are either fools or sadists.

Don't forget good old fashioned incompetence.
4.19.2009 6:00pm
John Moore (www):


President Obama would only be a fascist in the the trivial sense that he is the supreme leader of a fascist state created by George Bush and Dick Cheney from 2001-2009 in violation of their oaths of office


The economic actions of Obama (and to some extent Bush at the end of his term) closely resemble the economics of Fascism.

Wasn't Mussolini elected to get the trains to run on time?
4.19.2009 8:44pm
Richard Aubrey (mail):
John Moore.
Ref Obama and Mussolini:

It all depends. You'll note the distinct lack of interest in collateral damage from Predator strikes since Jan 20 of this year, for one example of "it all depends".
4.19.2009 10:38pm
jukeboxgrad (mail):
moore:

So now I my number is too low, when before I was lying because it was not zero.


I thought I made the relevant distinction obvious, but I guess I didn't make it obvious enough for you. Please consider these two items:

A) The number of SERE trainees who die in a year as a result of natural causes.
B) The number of SERE trainees who die in a year as a result of SERE.

A and B don't mean the same thing. A is probably about 10-20. I think B is probably zero. You seem to have not given any thought to this distinction, which is another reason to suspect that your claims in this regard were pulled out of your hat.

if you read this carefully, even you might be able to figure out why your statistics are irrelevant


There's nothing in your linked post which explains why my "statistics are irrelevant."

Compare that to what you claim I am saying, and let others decide whether you are dishonest or just not careful.


You said that the number of US soldiers who "died during SERE training" was "about one a year at the school I went to." And you were responding to someone who said this:

One way to compare SERE training with the Bush administration program would be to compare the number of body bags and/or psychologically damaged survivors, no? How many U.S. soldiers have died during SERE training?


The questioner was obviously trying to find out how many people died as a result of SERE. Not the number who died of natural causes, while they happened to be at SERE. So if your answer was a reference to the latter, you were being misleading.

That's why I said this:

you're claiming one died specifically as a result of SERE


That statement of mine is not "an out and out lie." It's simply the natural interpretation of the answer you gave, taking into account what the question actually was.

In order to sustain your assertion, one must believe that all interrogators using Plan B are either fools or sadists.


Not necessarily complete fools. Simply foolish enough to adopt beliefs that are not supported by evidence. In other words, as foolish as you.

==============
aubrey:

You'll note the distinct lack of interest in collateral damage from Predator strikes since Jan 20 of this year


You're implying that someone's level of "interest" in this matter suddenly changed on 1/20. Presumably you're prepared to show an example of someone who complained about Bush's Predator strikes, but is now defending Obama's Predator strikes. We'll be waiting patiently.
4.19.2009 11:03pm
Richard Aubrey (mail):
juke.
Not defending. Ignoring. Used to be a good anti-Bush partisan tool.
Things change, don't they?
4.19.2009 11:52pm
jukeboxgrad (mail):
Not defending. Ignoring. Used to be a good anti-Bush partisan tool.


Then presumably you're prepared to show us an example of someone who used Bush's Predator strikes as "a good anti-Bush partisan tool," and is now "ignoring" Obama's Predator strikes. We'll be waiting patiently.

Things change, don't they?


Here's something that never changes: your willingness to present straw man arguments, where you're waging a struggle against the imaginary behavior of imaginary people.

You and your little straw man are working up quite a frenzy. Maybe you should get a room.
4.20.2009 12:09am
C. Gittings (mail) (www):
The issue here isn't whether or not torture works.

The Spanish inquisition used it very successfully to expose witches and heretics. Stalin and Hitler were quite successful at exposing "enemies of the state", anti-social undesirables, etc.

Of course it works: that's just the point -- murder and robbery work too. That's why murder, robbery, and torture are all illegal.

And all that you apologists are proving here is that every last one of you is a congenital criminal.

As for you John Moore, I don't see any reason to suppose that Obama's economics are more fascist than Bush's economics, merely because you so. Your just lying and blowing smoke for lack of anything intelligent to say, as usual.

I've given you plenty of real questions to answer too, soi why just shove your lying BS back where came from and try answering those if you can stop wetting your panbt long enough to type a coherent sentence.

But I'm done for now.... on the road for a day or so.

But thanks for living up to the name of your blog John, it pleasure humiliating you. What a total waste of oxygen you are.
4.20.2009 1:02am
John Moore (www):


if you read this carefully, even you might be able to figure out why your statistics are irrelevant





There's nothing in your linked post which explains why my "statistics are irrelevant."


You aptly demonstrate why I used the word "might" as opposed to something more definite. That are unable to understand why your statistical cite is irrelevant says a lot.

But as Nek says, you're a time suck and I'm really f*cking tired of you.
4.20.2009 1:20am
jukeboxgrad (mail):
That are unable to understand why your statistical cite is irrelevant says a lot.


For some strange reason, you're unwilling to make a direct statement about why the "statistical cite is irrelevant." You're playing guessing games instead. No one should be surprised at your evasiveness, because these threads are full of questions that you're refusing to answer (example, example).

I'm really f*cking tired of you.


You mean you're tired of facing questions that are "too tough" for you to answer? That's not surprising either.
4.20.2009 3:17am
Anderson (mail):
You'll note the distinct lack of interest in collateral damage from Predator strikes since Jan 20 of this year, for one example of "it all depends".

Mr. Aubrey is making things up, surprisingly.

I read mostly liberal blogs, and I've seen plenty of concern that the drone attacks and their collateral damage are bad policy, helping drive Pakistan further towards an Islamic revolution in the provinces.

I haven't seen much on the immorality of collateral damage as such, but that is not surprising. When we're taught to believe that Dresden, Tokyo, Hiroshima, and Nagasaki's casualties were "collateral damage," it's difficult to see the problem in killing a few kids here, a few old folks there.
4.20.2009 10:52am
Tom Perkins (mail):
Yes Obama is definitely a fascist in the economic sense, he wants way more control over the economy than is wise, constitutional, or even possible--the man imagines he can regulate the business cycle out of existence! And he has his thuggish, criminally acting cohorts in ACORN, what with their vote fraud efforts and occupation of distressed housing--this certainly warrants a RICO prosecution, where is it? It's almost like Obama cares more for the outwards forms of legality than it's practice.

And as for brownshirts, I think Gittings needs to wait and see what color of uniform Obama's "civilian defense force as powerful as the DoD" wears before he claims I'm a racist and a fascist because I don't hate G. W. Bush and think Obama's a fascist.

Hint to Gittings, if I don't care what color his skin is, I can't be a racist; and I don't care what color his skin is.

As for definitions of torture, I do think what should potentially be illegal in torture of illegal combatants necessarily implies some lasting harm, like pliers and blowtorches, and there was none of that even proposed, let alone done.

If Gittings wants to find actually unconstitutional things done to prosecute a war, you pretty much have to go back to FDR (medium bad) and then to Wilson (horrendously bad) before you find a President acting without discernible limits.

For the people who continue to throw out scenarios about what horrible "evil" tortuous things would someone do in the name of defending the country from a ticking bomb scenario, I reply none of what you have asked if it would be done, is remotely as bad as the results of a single atom bomb--and atoms bombs being used are not necessarily war crimes.

I further reply that if it were my children's lives ostensibly to be exchanged for some other child's life, injury, or comfort, I do not think I would set about planning any funerals--and do not think you will get broad agreement as to how such a scenario should be handled. I think you might get some agreement that the legal and moral onus of the scenario should fall on those who create it.

In the real world, in this thread, that's you, Gittings, and MarkField, et al. In the real world with respect to Al Qaeda, it's AlQaeda--the ones you don't want to attack.

Yours, TDP, ml, msl, &pfpp
4.21.2009 6:34am
Tom Perkins (mail):
@ Gittings


The Spanish inquisition used it very successfully to expose witches and heretics. Stalin and Hitler were quite successful at exposing "enemies of the state", anti-social undesirables, etc.


You labor mightily under the misapprehension that all things you claim to be torture are morally the same and in fact are torture, and that because some governments have used such practices in the past, what we are doing is not different enough to not count as the same.

I think they are different with respect to AlQaeda, both in the actual guilt of and knowledge held by those being "tortured" and in the goals and mindset of the persons doing the "torture" and the also the character of the "torture". I think what is being done to AlQaeda barely qualifies as torture in any sense.

I find it interesting your definition of bigotry has no referent to whether someone is being judged as "inferior" a priori vs. for cause. Your definition would mean government never justly punishes criminals, because they cannot be justly punished.

I am discounting the human rights of AlQaeda detainees—illegal combatants—not because they are a priori not or less human, but because they have by their own actions shown their humanity should be discounted.

And your ideas about what is a war crime are ludicrous ones. The constitution never says congress must use the phrase "declares war on"—all that is required is that Congress says go get them, we'll pay for it. That happened.
Predator drone missile strikes into "civilian" housing in Pakistan are not war crimes even if Obama does them, because the "civilian" homes are legal targets because of who we reasonably believe to be in them. It's a war crime for AlQaeda, the Taliban, and their adherents to be in the homes.

If Obama is a war criminal WRT Afghanistan or Pakistan, it's because he has us continuing to half-assedly prosecute a war with no real intention of winning it or even of attempting to develop a strategy to win it.

To repeat, doing what is needful cannot be depraved, and prudence is a virtue.

Yours, TDP, ml, msl, &pfpp
4.21.2009 7:30am
Tom Perkins (mail):
@ Gittings


As for you John Moore, I don't see any reason to suppose that Obama's economics are more fascist than Bush's economics, merely because you so.


Given the measure of his stupidity, both the on books budgetary and regulatory, Obama is a full order of magnitude worse than Bush, and that's counting NCLB, Medicare, and Bailout Pt I, but not yet counting Obama's goal of making federal assistance conditional on "voluntary" child labor, his civil defense force the parallel of the DoD, or his (mutual) support from organized crime in ACORN.

@water in the nose guy

There used to be reports that some found credible, that Grant spent most of the Civil War drunk. We know that not to be true. There needs to more water under the bridge before any account is accepted as true, we "torture apologists" mentioned the exclusion of water from the nose because we'd seen it reported with all the same authority that you've seen your version reported. Besides which, it is far from certain why water in the nose should be a determinant of what is and is not torture, although it has medical implications which I'm sure were dealt with. We wouldn't want to actually hurt the chances of learning something from the thugs, now would we?

Yours, TDP, ml, msl, &pfpp
4.21.2009 7:46am
jukeboxgrad (mail):
perkins:

his thuggish, criminally acting cohorts in ACORN, what with their vote fraud efforts


Can you show evidence that even a single fraudulent vote was ever cast as a result of ACORN's "efforts?" I've been looking for a long time, and haven't found any. Do you have some? Please advise.

Surely there must be some such evidence somewhere. After all, McCain said this:

ACORN … is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.


Is McCain following up on that? Maybe you know.

I do think what should potentially be illegal in torture of illegal combatants necessarily implies some lasting harm


I can attach electrodes to your genitals and deliver a series of electric shocks that will cause no "lasting harm" whatsoever (at least with regard to physical harm). Likewise for sodomizing you. So you're claiming this should be legal, right?

You labor mightily under the misapprehension that … because some governments have used such practices in the past, what we are doing is not different enough to not count as the same.


It's not just that other governments have done waterboarding in the past. It's that we've prosecuted them for doing so. Even when they used the same procedure we're using. Why is it a crime when they do it, but not when we do it?

Please show your evidence that what we're doing is "different enough to not count as the same." Some relevant information is here.

I think what is being done to AlQaeda barely qualifies as torture in any sense.


The waterboard procedure we're using is a procedure we described (and prosecuted) as torture when the Japanese did it. What's the difference?

we "torture apologists" mentioned the exclusion of water from the nose because we'd seen it reported with all the same authority that you've seen your version reported.


No, it was never "reported with all the same authority." At best, it was reported via anonymous leaks. What we have now are memos detailing what CIA did (or at least part of what they did). And those memos document that "water may enter — and may accumulate in — the detainee's mouth and nasal cavity, preventing him from breathing."

it is far from certain why water in the nose should be a determinant of what is and is not torture


Here's one clue: we called it torture when the Japanese did it.

although it has medical implications which I'm sure were dealt with


As I have shown, you're "sure" about lots of things that have no basis in reality. Tell us what makes you so "sure."

We wouldn't want to actually hurt the chances of learning something from the thugs, now would we?


We beat to death Dilawar and others. That did indeed "actually hurt the chances of learning something from the thugs" (although Dilawar shouldn't be called a "thug," because we thought he was innocent, and we beat him to death anyway; the thugs were us). So your confidence is misplaced.

We waterboarded KSM 183 times. What rational person could think we did this because we were interested in "learning something?" Why would any rational person think that repetition #183 was going to produce information that had not already been produced in repetitions 1-182? And what was the rational basis for deciding that repetition #184 wasn't necessary?

As has been true throughout history, the real point of this torture wasn't "learning something." As has been true throughout history, the real point of this torture was punishment, revenge, and generating false confessions. And that's why we didn't mind that most of what was produced was "total fucking bullshit."
4.21.2009 11:43am
Tom Perkins (mail):
@ JBG


Can you show evidence that even a single fraudulent vote was ever cast as a result of ACORN's "efforts?"


Can you show they scrupulously train their employees not to submit false registrations?


I can attach electrodes to your genitals and deliver a series of electric shocks that will cause no "lasting harm" whatsoever (at least with regard to physical harm). Likewise for sodomizing you. So you're claiming this should be legal, right?


If I'm an illegal combatant who slaughters civilians on purpose, for the purpose of doing so--if I'm KSM--then no; because waterboarding is all it took.


It's that we've prosecuted them for doing so.


So? We hung a Confederate POW camp commander for doing the same thing with his prisoners that the Union did to Reb prisoners, what's your point? We dropped charges against some Nazi's in some cases because we did the same thing in WWII, where's the relevance? You seem to unable to reconcile the randomness that's found in the real world, as well as the lack of perfect coincidence of all good aims in all circumstances. Try seeing the forest for the trees.


Why is it a crime when they do it, but not when we do it?


Here's one clue: we called it torture when the Japanese did it.


Silly JBG, it's because we won. We could do it. Did we arrest and try American veterans of the Phillipine insurrection who did far worse things, no. Why? Because that would be stupid.


As I have shown, you're "sure" about lots of things that have no basis in reality.


What, you think we don't mind if they die before they talk?


We beat to death Dilawar and others.


Maybe, but that wasn't a matter of policy, that was a criminal and very unintended consequence, as was what happened at AbuGhraib. Get this through your head--that was not a result of the "harsh" interrogation memos or what the Congress authorized. Also, you cite the NYT. How much crediblity do you think they have? Have you no shame, no sense of embarassment?


We waterboarded KSM 183 times. What rational person could think we did this because we were interested in "learning something?"


Several tens of millions of them, at minimum.


And what was the rational basis for deciding that repetition #184 wasn't necessary?


Either he ran out of resistance or we ran out of questions, one of the two came first. What else would you assume. Oh wait, you'd assume the worst without evidence.


As has been true throughout history, the real point of this torture wasn't "learning something."


Prove it. I think you're taking unrelated incidents that have nothing to do with these memos and claiming they have profound significance.


And that's why we didn't mind that most of what was produced was "total fucking bullshit."


It's enough for me that some wasn't. Some things you can't get by satellite.

I for one, find it imprudent to let the perfect be the enemy of the good enough.

Yours, TDP, ml, msl, &pfpp
4.21.2009 1:22pm
jukeboxgrad (mail):
perkins:

Can you show they scrupulously train their employees not to submit false registrations?


Any enterprise that pays people to register voters is going to generate a certain number of fraudulent registrations. This is part of the price you pay when you make an effort to increase voter registration. Then again, you might be a Republican who thinks it's not a good idea to increase voter registration. Or you might be someone who doesn't "find it imprudent to let the perfect be the enemy of the good enough."

And a fraudulent registration has no importance unless it leads to a fraudulent vote. So I'll repeat the question you ducked: can you show evidence that even a single fraudulent vote was ever cast as a result of ACORN's efforts?

waterboarding is all it took


I think you meant to say that waterboarding him 183 times "is all it took." And how do you know? Where is your proof that waterboarding him produced any information whatsoever? And even if you believe that waterboarding him produced valuable information, how do you know that sodomizing him would not have produced even more valuable information? And perhaps more quickly? You said this:

I do think what should potentially be illegal in torture of illegal combatants necessarily implies some lasting harm


Since electric shock and sodomy can be applied without "lasting [physical] harm," why should they be illegal? Or are you claiming they should be legal? You're ducking these questions, too.

it's because we won. We could do it.


That's why we said waterboarding was torture when the Japanese did it? Because "we could?" Because "we won?" And not because it was true? Do you think there might possibly be some ultimate strategic cost to announcing to our friends and enemies around the world that we are brazen, shameless hypocrites?

Did we arrest and try American veterans of the Phillipine insurrection who did far worse things, no.


Your ignorance is just as profound as your hypocrisy. We did indeed "arrest and try American veterans of the Phillipine insurrection" for waterboarding prisoners (pdf, p. 31).

you think we don't mind if they die before they talk?


If we were terribly concerned about the possibility that they might "die before they talk," Dilawar and others would not have been beaten to death.

that wasn't a matter of policy, that was a criminal and very unintended consequence, as was what happened at AbuGhraib.


That's what you say. Taguba said something else. You should tell us what you know that he doesn't.

you cite the NYT. How much crediblity do you think they have? Have you no shame, no sense of embarassment?


Thanks for this nice example of hiding behind an ad hominem argument:

An ad hominem argument, also known as argumentum ad hominem (Latin: "argument to the man", "argument against the man") consists of replying to an argument or factual claim by attacking or appealing to a characteristic or belief of the source making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim.

The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject.


How much credibility do you think you have when you hide behind an ad hominem argument? Have you no shame, no sense of embarassment?

There is some reason to complain about NYT credibility; after all, they shilled for Bush. But the article I cited about Dilawar presents claims that come directly from government documents. So if you were something other than a complete intellectual coward, you would make a pretense of addressing those claims directly, instead of hiding behind a feeble ad hominem. But your cowardice is self-evident, because you routinely evade questions that are simple, fair and relevant.

Either he ran out of resistance or we ran out of questions, one of the two came first.


If "he ran out of resistance," how would one know? What signs of 'ran out of resistance' could possibly have been evident on repetition #183 that were not evident on repetitions 1-182? And how do you that we could not have gotten valuable information if we had proceeded with #184?

It's enough for me that some [information] wasn't [total fucking bullshit].


Consider this:

K.S.M. produced no actionable intelligence


Let us know when you're in a position to prove otherwise.
4.21.2009 3:22pm
Tom Perkins (mail):
It is possible this will turn out to be fake, but then you never let that possibility stop you, so...

OK

Yours, TDP, ml, msl, &pfpp
4.21.2009 10:45pm
Tom Perkins (mail):

If "he ran out of resistance," how would one know? What signs of 'ran out of resistance' could possibly have been evident on repetition #183 that were not evident on repetitions 1-182? And how do you that we could not have gotten valuable information if we had proceeded with #184?


That sounds like the same sort of breathless, "It's so complicated, it's impossible.", argument I hear from the Intelligent Design crowd.

Just so you know.

Yours, TDP, ml, msl, &pfpp
4.21.2009 10:50pm
jukeboxgrad (mail):
perkins:

It is possible this will turn out to be fake


The article you're citing is pure crap. I already explained that here and here.

You're ducking lots of questions. Presumably you realize you're doing that, and you're doing it in a very obvious way.
4.22.2009 2:09am

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