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Torture Memos Could Spur More Revelations:

The NYT reports:

the new revelations are fueling calls by lawmakers for an extensive inquiry into controversial Bush administration programs, and Mr. Obama now faces a challenge making good on his promise to protect from legal jeopardy those intelligence operatives who acted within Justice Department interrogation guidelines.

Some members of Congress and human rights lawyers are likely to press for new disclosures about the period of several months in 2002 when C.I.A. interrogators began interrogating Abu Zubaydah, a Qaeda operative captured in March of that year, before the Justice Department had officially endorsed the interrogation program. . . .

he American Civil Liberties Union, whose lawsuit forced the release of the Justice Department memos on Thursday, plans to press the Justice Department to release other classified documents from the Bush era, including a 2004 C.I.A. inspector general's report that gives details about C.I.A. officers who exceeded Justice Department interrogation guidelines.

"These are the first dominoes," said Jameel Jaffer, an A.C.L.U. lawyer. "It will be difficult for the new administration to now argue that other documents can be lawfully withheld."

Relatedly, former CIA director Michael Hayden and former Attorney General Michael Mukasey criticized the memo release in this WSJ op-ed. The NYT's "Room for Debate" blog has more here.

UPDATE: Kevin Jon Heller suggests that CIA interrogators did not rely upon the OLC memos in good faith, as the CIA utilized techniques that were notably harsher than those described in the memos.

FantasiaWHT:
Did the ACLU lawsuit really "force" the Obama administration to release the memos?
4.18.2009 10:43am
lonetown (mail):
“It will be difficult for the new administration to now argue that other documents can be lawfully withheld.”

So I guess when the argument is "its a fishing expedition", it IS a fishing expedition.

Given these revelations I think the next big investigation should be fraternity hazing. You think walling and bugging are bad!
4.18.2009 11:00am
Anderson (mail):
It might be helpful to link today's other NYT story on the subject, reminding us that, according to disputed reports, Zubaydah was delivering his intel just fine under legitimate interrogation methods, but the CIA bosses (under pressure from Cheney? or is that just their excuse?) insisted he had to know more ... mistakenly, as it turned out after waterboarding.

The disputes over these facts, which are glaringly relevant to evaluating CIA good faith and the efficacy of torture, go to show the importance of further releases, and of a truth commission that can sort through the evidence, subpoena witnesses, and find out what happened.
4.18.2009 11:01am
Mahan Atma (mail):
I think there's many more revelations to come.

For example, we know the CIA's IG was investigating several homicides of detainees by CIA operatives, among other things. Cheney pretty much shut down the IG's investigations, but weren't any recommendations eventually made to DOJ?
4.18.2009 11:02am
Constantin:
I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.
4.18.2009 11:17am
Federal Dog:
"and of a truth commission that can sort through the evidence, subpoena witnesses, and find out what happened."

They should set up a Truth Ministry, complete with its own Truth Tribunal, and be done with it.

I honestly wonder at people who seem completely oblivious to history when they use such language.
4.18.2009 11:24am
D Kosloff (mail):
If we can't expect the truth from Joe Biden, from whom can we ever expect the truth?
4.18.2009 11:31am
Cornellian (mail):
"and of a truth commission that can sort through the evidence, subpoena witnesses, and find out what happened."

They should set up a Truth Ministry, complete with its own Truth Tribunal, and be done with it.

I honestly wonder at people who seem completely oblivious to history when they use such language.


The original commenter is the one thinking of history, albeit quite recent history. You're presumably thinking of literature, but I don't think George Orwell is on your side in this debate.
4.18.2009 11:32am
martinned (mail) (www):

I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.

While I sympathise with your desire to expose democrats as hypocrites, I still wonder what the point would be.

Federal Dog wrote:

They should set up a Truth Ministry, complete with its own Truth Tribunal, and be done with it.

I honestly wonder at people who seem completely oblivious to history when they use such language.

Yes, it is horrible when people no nothing of history. After all, why comment on the Orwellian nature of these memos if one can comment on the Orwellian nature of the notion of a truth commission instead. After all, the latter lead to much more suffering.
4.18.2009 11:32am
Michael Ejercito (mail):
Since the torture happened in foreign countries, why can't those countries prosecute the torture suspects?
4.18.2009 11:33am
martinned (mail) (www):
@Michael Ejercito: They can, but I suspect the US wouldn't extradite its own citizens.
4.18.2009 11:35am
Cornellian (mail):
Funny thing about that WSJ Op Ed. It starts out saying this:

The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

and then ends with this:

Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009.

I wonder if General Hayden had his lawyer review that before he published it.
4.18.2009 11:37am
D Kosloff (mail):
"While I sympathise with your desire to expose democrats as hypocrites, I still wonder what the point would be."

The point would be that we don't want to "no nothing of history".
4.18.2009 11:40am
Anderson (mail):
I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.

Me too.
4.18.2009 11:44am
Just an Observer:

I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.

Me too.


So would I. Let's have an investigation that includes open hearings and put folks under oath.
4.18.2009 11:58am
PC:
So would I. Let's have an investigation that includes open hearings and put folks under oath.

I'm game. It doesn't matter if there's a D or R next to the name. We need to find out what was done in our name.
4.18.2009 12:04pm
C. Gittings (mail) (www):
Cornellian,

"I wonder if General Hayden had his lawyer review that before he published it."

Heh. That caught my eye too -- indeed, the whole column is pretty much a signed confession by both Mukasey and Hayden to conspiracy, obstruction of justice, war crimes, murder, kidnapping, and torture.

And since neither of them is stupid, I can only chalk it up to the blind faith of a true believer in his delusions...

Such as their sophist quibbles regarding the fine distinctions between interrogations and confessions, for example. That argument is rooted in the laws of war, which contain textual prohibitions re coercing confessions going back to the 19th century. But in that context, the word 'confession' isn't being used narrowly in the sense of an individual confessing to a specific criminal charge, but broadly, in the sense of being compelled to divulge information which could be useful to your enemies and detrimental to your own side. There are also explicit prohibitions against compelling captives to serve their enemies, which I have to believe includes providing them with useful intelligence.

These people are war criminals, and that is ALL that they are. The Nazis offered exactly the same justifications for their crimes.
4.18.2009 12:08pm
martinned (mail) (www):
@D. Kosloff: Yes, I'm not sure how "know" ended up as "no". In my defence, I was driving myself crazy digging through French Cour Constitutionnel case law at the time. (Although I'm not sure if case law is the right word to describe rulings that average about one page in length.)

Anyway, I didn't mean to imply that misdeeds by democrats should not be investigated. I just think that it is less important than figuring out the responsibility of everyone in the chain of command between the people that actually did the torturing and the president.
4.18.2009 12:20pm
byomtov (mail):
It might be helpful to link today's other NYT story on the subject, reminding us that, according to disputed reports, Zubaydah was delivering his intel just fine under legitimate interrogation methods, but the CIA bosses (under pressure from Cheney? or is that just their excuse?) insisted he had to know more ... mistakenly, as it turned out after waterboarding.

Not to the torture fans.
4.18.2009 12:26pm
Public_Defender (mail):
Hayden/Mukasey write:

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies.

1) The outrage is real, not "faux."
2) It's not the disclosure that causes the outrage, it's the behavior that was disclosed.
3) We already had the contempt of our enemies. That's why we call them "enemies." Torture (and trying to cover it up) brought the justified contempt of our friends. Disclosing the torture is the first step in fixing that.

It's too bad I wasn't defending against federal prosecutions when Mukasey was AG. I could have successfully argued that "disclosing" that my client had killed, raped or stolen would only bring the "faux outrage" of the jury, so the prosecutor should just shut up and leave my client alone.
4.18.2009 12:29pm
Mark Field (mail):

I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.


Adding another vote to expose them all.
4.18.2009 12:35pm
byomtov (mail):
Adding another vote to expose them all.

Me too.

No exceptions, no privileges.

Get it all out and let the chips fall where they may.
4.18.2009 12:40pm
Anderson (mail):
Btw, Prof. Adler's link to Opinio Juris should be followed up; there are several posts of interest on the memos.

Emptywheel is another good source.
4.18.2009 12:55pm
Cornellian (mail):
I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question.

Absolutely, public record for all of them. Rockefeller was probably one of the worst Democrats in Congress in that regard, and Pelosi can hardly claim the voters of her San Francisco district were demanding that she support torture.
4.18.2009 1:55pm
Litigator-London:
Like Cornellian, I was surprised to see the admissions in the Hayden/Mukasey WSJ Op-Ed.

It could be that the authors were relying on Judge Mukasey's legal experience when considering the text, in which case this article might be an example of the old adage that "a lawyer who acts pro se has a fool for a client".

Quite apart from anything else, there are quite a number of public and private entities around the world trying to assemble evidence for a prosecution in several European countries under ius cogens jurisdiction. Under the rules of evidence which apply in most European jurisdictions, that Op-Ed will go a long way towards establishing the evidential threshold for a judicial investigation.

Some potential targets for prosecution may have been much relieved by the Administration's statements on its intention not to prosecute CIA operatives. Funnily, that statement may also have been well-received in some quarters over here.

One of the strongest arguments for a Court not to exercise its discretion to put the wheels in motion to take a case under its universal jurisdiction is that proceedings are best brought by the state most closely connected with the subject matter which is, self-evidently, the USA. That was the argument of the Spanish Public Prosecutor for bringing a halt to Judge Garzon's investigation. It seems that the strength of that argument has now been considerably diminished.

Does anyone think that what the Administration is really trying to do is to appear to be reluctant to prosecute for domestic political purposes while hoping that the drip drip of disclosure and leaks will develop sufficient public outrage to make the eventual appointment of a Special Prosecutor inevitable?
4.18.2009 2:10pm
Cornellian (mail):
Under the rules of evidence which apply in most European jurisdictions, that Op-Ed will go a long way towards establishing the evidential threshold for a judicial investigation.

To me the amazing thing about that Op Ed is that Hayden has pretty much killed any chance he had to assert the standard (and often best) defense of the guy at the top, namely that he didn't know what his underlings were doing and wouldn't have authorized it if he had known.
4.18.2009 2:35pm
D Kosloff (mail):
Martinned,
In our constitutional republic, congressional leaders are part of the chain of command.
4.18.2009 2:41pm
MarkField (mail):

In our constitutional republic, congressional leaders are part of the chain of command.


That's not what the Bush Administration was saying while it was in office.

LL, I think Holder's statement was nuanced. He said only that reasonable, good faith reliance on the legal opinion would mean no prosecution. That's not a bad standard under the circumstances. It leaves open the prosecution of those who were responsible for the standards, as well as those who went beyond the (despicable) legal advice they did get. If I were in the CIA, I wouldn't have found his statement very comforting.
4.18.2009 2:50pm
Bob from Ohio (mail):
My my, the "virtue chest beaters" are out in force on this thread.

I think its a record for this site. Impressive.


drip drip of disclosure and leaks will develop sufficient public outrage


caterpillars and collar grabbing

My god, I can see the public with the pitchforks and torches right now.
4.18.2009 3:08pm
RPT (mail):
"Constantin:

I'd be interested in any (further) revelations related to Nancy Pelosi's and Jay Rockefeller's championing of enhanced interrogation methods, including waterboarding, during this time period in question."

The consensus agrees with you.

Bob:

Sorry that virtue is a joke to you.
4.18.2009 3:25pm
Public_Defender (mail):
My god, I can see the public with the pitchforks and torches right now.

Sometimes, the castle needs to be stormed.
4.18.2009 3:33pm
Hazel Motes:
Sorry that virtue is a joke to you.


Hypertrophic self-regard is not virtue. Quite the contrary.
4.18.2009 3:39pm
My Middle Name Is Ralph:

Does anyone think that what the Administration is really trying to do is to appear to be reluctant to prosecute for domestic political purposes while hoping that the drip drip of disclosure and leaks will develop sufficient public outrage to make the eventual appointment of a Special Prosecutor inevitable?


Not me. I think the admistration is genuinely concerned that pushing prosecutions would be a political clusterf*ck and detract from its ability to enact and execute laws to move the US in the direction it wishes to go. Obama and the US have much more important concerns than putting some Bush officials on trial. They might (or might not) want to in a perfect world, but it's just not worth the cost.
4.18.2009 4:05pm
Tom Perkins (mail):
@ MarkField


In our constitutional republic, congressional leaders are part of the chain of command.



That's not what the Bush Administration was saying while it was in office.


The congressional leaders are at the top of the chain of command, subordinate only to the constitution and their consciences, and the Bush Administration never disagreed. The congress can either cut off funding or impeach the executive. The congress can strip the Supreme Court of the power to hear cases.

Per the constitution, the Congress is ultimately in a superior position of authority, if not by much.

The Congress exercised neither option, and this despite the fact the "loyal" opposition was in charge the last two years of that administration, and they were just worried we weren't hard enough on the terrorists.

Yours, TDP, ml, msl, &pfpp
4.18.2009 4:42pm
mattski:

The congressional leaders are at the top of the chain of command, subordinate only to the constitution and their consciences, and the Bush Administration never disagreed.

That's an interesting sentence, I didn't realize that the Constitution was part of the chain of command! I didn't realize either that congressional leaders are subordinate to their consciences in the chain of command, and that the president is not listed at the top!

Yikes-a-doodle!
4.18.2009 5:01pm
geokstr:

Tom Perkins:

Per the constitution...

Gee whiz, Tom, that is just so 18th century already...

Everyone knows that the constitution means what the one with the slickest lawyers says it means.

What the people who actually wrote the danged thing meant is irrelevant, immaterial, and probably inadmissable anyway.
4.18.2009 5:04pm
John Moore (www):
Let's see... the executive believes the techniques are legal. The legislative branch concurs with the use of those techniques.

So let's have a big trial and perrosecute the people who followed the executive and legislative rules.

And lets be sure and do it on practices which we use in training on our own people.

We can then wipe away the terrible, oh, I say, terrible stain on America.

I'm sure our "friends" will respect us a whole lot more for this (but still prohibit their troops from engaging in combat in Afghanistan) and our enemies will be mightily afraid.
4.18.2009 5:27pm
RPT (mail):
John:

Well, this executive believed that everything that they did was legal. They just wanted a little memoranda window
dressing.

As to the legislature, we're waiting to find out who knew what when; certainly there was no public debate, and no one here knows for sure.

Finally, maybe all of this debate is just after the fact academic. Those who support torture just like the idea of making people who may have had something, anything, to do with 9.11, or even live in the same part of the world, and look the same as the others, suffer, and the worse the better. No legal or psychological analysis necessary.
4.18.2009 5:37pm
John Moore (www):

Finally, maybe all of this debate is just after the fact academic. Those who support torture just like the idea of making people who may have had something, anything, to do with 9.11, or even live in the same part of the world, and look the same as the others, suffer, and the worse the better. No legal or psychological analysis necessary.


I think we are finally getting down to the root of this.

It is me (anti-"torture" folks) good, you (pro-defense folks) evil.

Those of us who support waterboarding obviously must be xenophobes and racists, and our only motivation is suffering.

RPT... your bigotry is clear.
4.18.2009 5:54pm
Public_Defender (mail):

Those of us who support waterboarding obviously must be xenophobes and racists, and our only motivation is suffering.

You are morally depraved, but not necessarily xenophobic or racist. Feel better?
4.18.2009 6:15pm
CaseyL (mail):
Those of us who support waterboarding obviously must be xenophobes and racists, and our only motivation is suffering.


Yes.

Waterboarding, is a war crime for which the international community, including the US, has prosecuted, convicted, and executed practitioners thereof.

To support waterboarding is to support a war crime.

And motivation doesn't matter, any more than it matters what motivations murderers, rapists, etc., claim.

The act itself is a war crime. Period.
4.18.2009 6:19pm
Oren:

The act itself is a war crime. Period.

Perhaps, but is it a crime against the laws of the United States?
4.18.2009 7:08pm
Oren:
If the Spanish want to try Hayden, we get to try Judge Garzon for his complicity in the abuses against ETA. Sound like a deal?
4.18.2009 7:23pm
Spitball:
Bob from Ohio --

I second your sentiments. The arrogant moral preening here reminds me of some of the worst elements of the Religious Right (the moral certitude of their views, their refusal to see the shades of gray involved, the smugness, the vindictiveness, etc.)

I wonder if those who refuse to see the moral and legal complexities and difficulties of this issue also believe that President Truman and the United States leadership during World War II should have been criminally prosecuted for war crimes, along with the Nazis.

After all, President Truman ordered the dropping of two atomic bombs on civilians for the utilitarian goal/hope that it would ultimately reduce further bloodshed. I'm fairly sure that killing tens of thousands of innocent men, women and children is morally much worse than waterboarding the architect of 9/11.
4.18.2009 7:30pm
CaseyL (mail):
Perhaps, but is it a crime against the laws of the United States?



What the frakking frak??? Is that a serious question? From you, an attorney?

While my mind boggles, here's a cite from wikipedia:

In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning".The sheriff was sentenced to ten years in prison, and the deputies to four years.




SFAIK, Texas was part of the US in 1983. Presumably, Parker and his deputies were prosecuted for violating US law.

Now, I suppose you could parse that, by claiming that "conspiring to force confessions" isn't exactly the same thing as "extracting information."

However, I think a good argument could be made that the State interest in getting confessions is at least as legitimate as the State interest in extracting information. Why, then, would waterboarding be a criminal act in the former but not the latter?
4.18.2009 7:30pm
nicehonesty:
Just so we're all still clear:

Pouring water over a terrorist suspect for 3 minutes, open handed slaps, exposure to caterpillars = torture, war crime, etc.

Blowing up innocent men, women, and children in Pakistan with unmanned drones fired at terrorist suspects = Hooray Obama!!!!

Do any of the virtue-driven commenters from this thread (specifically: Anderson, Mahan Atma, martinned, Cornellian, Just an Observer, PC, C. Gittings, byomtov, Public_Defender, Mark Field, RPT, CaseyL) care to dispute this?

And if you do dispute it, can you point out where you've called for Obama and his administration to be tried for war crimes for the murders of these innocent civilians?

Thanks in advance for not dodging these questions.
4.18.2009 7:40pm
Mark Field (mail):

The congressional leaders are at the top of the chain of command, subordinate only to the constitution and their consciences, and the Bush Administration never disagreed. The congress can either cut off funding or impeach the executive.


This is silly. First, the Bush Administration treated the Executive as the top of the Constitutional heap, not Congress. Second, it kept its practices secret; I'm not sure even Pelosi and Rockefeller knew what was going on (though if they did, I want that exposed). Third, no member of Congress was in any sense in the sense "in the chain of command" when it came to these crimes. They have no executive power, and can't Constitutionally exercise.
4.18.2009 7:55pm
Mark Field (mail):
nice try, nicehonesty, but the subject of this post is torture, not the use of missile strikes. When we get a post on missile strikes, we'll no doubt discuss it.

In the meantime, I'm sure you understand that arguments against, or for that matter for, torture rise or fall on their merits, not on whether those making them are hypocrites.
4.18.2009 8:09pm
Michael Ejercito (mail) (www):

Third, no member of Congress was in any sense in the sense "in the chain of command" when it came to these crimes.

Neither was Vice President Cheney nor anyone in the Department of Justice.
4.18.2009 8:47pm
RPT (mail):
"John:

It is me (anti-"torture" folks) good, you (pro-defense folks) evil."

Only two small corrections; First, you are not evil, you simply support evil policies and action. Second, we are actually pro-defense, but the real and effective kind, not the counter-productive "defense" which the torture policy has turned out to be.

Re the "3 minutes" point above, you need to check the operative footnote in the 2005 memo: 183 times in one month on a guy that the interrogators had already determined had no more information to give. Read the documents before you comment.
4.18.2009 8:52pm
RPT (mail):
"ME:

Neither was Vice President Cheney nor anyone in the Department of Justice."

Sorry, Cheney and Addington were at the top of the chain; the first link.
4.18.2009 8:53pm
C. Gittings (mail) (www):
Oh you bet I'll dispute it, and you can take this virtue driven crap and shove.

What I am concerned with here are the LAWS OF THE UNITED STATES. Laws that every US Official swears an oath to uphold.

I don't approve of the Predator strikes at all. Legally, they're pretty much just murder IMO, everything else being equal. Militarily, they are simply stupid and counter-productive, and display a complete misunderstanding of the strategic situation.

However, the law isn't nearly as clear-cut here as it is with torture. If you accept that we are involved in an armed conflict, there is a colorable argument that such attacks fall under the doctrine of military necessity. There are also colorable arguments the other way that such attacks are either disproportionate, indiscriminate, or even prohibited.

It all kind of boils down to the AUMF, and that's an involved discussion. Read it, take the language at face value, and tell me what it actually authorizes...

Wednesday, Judge Huvelle issued an opinion stating what she thought it meant -- and I actually disagree with her, even though I very much agree with the result in the case.

My view?

The AUMF authorizes absolutely nothing and is strictly unconstitutional. Congress has the power to declare war; it does not have the power to authorize the President to declare war on any nation, organization, or person by executive fiat. Congress has the power to punish crimes by enacting statutes, it does not have the power to authorize the president to declare someone a criminal and punish him without due process of law. Neither does Congress have the power to enact a bill of attainder.

It should simply be repealed, and we should cease and desist with the idiotic wars. The President has all the authority he needs to deal with the situation lawfully -- and that was just as true on 2001.09.12 as it is now. The hysterical overreactions of the Bush administration were just mindless thuggery and political opportunism. Anyone who thinks those people made us safer is a fool.

But don't think I have any illusions anything will improve much -- that won't happen until Obama figures out Gates and Petraeus are incompetent fools and gets rid of both of them. Holding them over was by far the worst mistake he's made, and now they're gradually ensnaring him in the Bush administration's crimes. I still believe Obama is an intelligent and well-meaning man, and cut him a lot of slack inasmuch he doesn't have a lot of military experience and has been very heavily preoccupied with the economy, but the bottom line remains exactly the same for me. The law is the law, and the President is sworn to faithfully execute it, not commit war crimes.

Like every president, Obama is being tested by the job. I'm not ready to indict him alongside Bush and Cheney just yet; he was handed the worst mess any President except FDR has had to deal with, with two absolutely pointless wars on top.
4.18.2009 9:08pm
John Moore (www):
Mark Field (mail):

nice try, nicehonesty, but the subject of this post is torture, not the use of missile strikes. When we get a post on missile strikes, we'll no doubt discuss it.



Unless you believe you can discuss torture in a vacuum (and some of the virtue driven absolutists here do), then the missile strikes are relevant.

RPT:

Second, we are actually pro-defense, but the real and effective kind, not the counter-productive "defense" which the torture policy has turned out to be.

Counter-productive? It was pretty handy in 2002 when it led to the capture of KSH, whose own "torture" provided actionable intelligence.
4.18.2009 9:08pm
Public_Defender (mail):
I am sorry for the snarky tone of my last post. When one side of a debate is arguing that the other side has gone beyond the pale of morality, it makes it hard to discuss civilly. My liberal friends should think about what rhetoric they think is appropriate from anti-abortion people before posting on the torture topic.
4.18.2009 9:13pm
My Middle Name Is Ralph:

nicehonesty: Pouring water over a terrorist suspect for 3 minutes, open handed slaps, exposure to caterpillars = torture, war crime, etc.

Blowing up innocent men, women, and children in Pakistan with unmanned drones fired at terrorist suspects = Hooray Obama!!!!

Do any of the virtue-driven commenters from this thread (specifically: Anderson, Mahan Atma, martinned, Cornellian, Just an Observer, PC, C. Gittings, byomtov, Public_Defender, Mark Field, RPT, CaseyL) care to dispute this?


First, I guess I'm a little disappointed in not being included in the "virtue driven commentators from this thread."

Second, your premise is simply wrong to the extent that it implies anyone cheers for the deaths of innocent men, women, and children. Certainly some, myself included, generally want Obama to try to kill terrorists, even though we realize that this may result in innocent deaths. I don't see the contradiction, however, in applauding certain actions that regretably and accidentally may kill innocents, while condemning intentional violations of legal and ethical norms that are, at least arguably, counterproductive to our long term security.
4.18.2009 9:33pm
jukeboxgrad (mail):
moore:

the capture of KSH, whose own "torture" provided actionable intelligence


I think you mean KSM. Please tell us exactly what "actionable intelligence" we gained by torturing him, that we didn't already know before we tortured him. And please don't pretend that you have an answer unless you can cite a reliable source.

In particular, let us know if you're in a position to disprove this:

As for K.S.M. himself, who (as Jane Mayer writes) was waterboarded, reportedly hung for hours on end from his wrists, beaten, and subjected to other agonies for weeks, Bush said he provided “many details of other plots to kill innocent Americans.” K.S.M. was certainly knowledgeable. It would be surprising if he gave up nothing of value. But according to a former senior C.I.A. official, who read all the interrogation reports on K.S.M., “90 percent of it was total fucking bullshit.” A former Pentagon analyst adds: “K.S.M. produced no actionable intelligence. He was trying to tell us how stupid we were.”
4.18.2009 9:52pm
Tom S (mail):
One of the Bradbury memos says that Abu Zubadiah (sic) was waterboarded 83 times in one month; and that KSM was waterboarded almost 200 times.

Thoughts...

1) pretty long fuse on that "ticking bomb"

2) waterboarding appears not to be such such a "magic bullet" for getting actionable intelligence.

3) given that the premise of those who support the use of waterboarding is that it provides an effective means of eliciting actionable intelligence in a short time, why do it so often?

4) anyone who cannot make up their mind about the utility of such methods when presented with the almost uniform condemnation by law enforcement and miltary interrogators of such methods and Joe Scarborough's opinion does not appear to have a mind to make up.

5) none of the defenders of these methods have yet addressed how torture inevitably becomes the method of first resort, and as such is institutionalized (softening up prisoners a la Abu Ghraib), and inevitably perverts and corrupts the whole intelligence-gathering process.
4.18.2009 10:12pm
John Moore (www):

I don't see the contradiction, however, in applauding certain actions that regretably and accidentally may kill innocents, while condemning intentional violations of legal and ethical norms that are, at least arguably, counterproductive to our long term security.


I don't see the contradiction, however, in applauding certain actions that regrettably and unavoidally may cause temporary pain and fear, while condemning the intentional violations of international law in using missiles to kill innocents in actions that are, at least arguably, counterproductive to our long term security.
4.18.2009 10:21pm
John Moore (www):

2) waterboarding appears not to be such such a "magic bullet" for getting actionable intelligence.


Duh... and you thought there was a "magic bullet" in areas involving coercing human behavior?


anyone who cannot make up their mind about the utility of such methods when presented with the almost uniform condemnation by law enforcement and miltary interrogators of such methods and Joe Scarborough's opinion does not appear to have a mind to make up.

Anyone who can't understand that those prohibited from using the techniques (law enforcement and military interogators) are hardly a definitive source of information on their effectiveness.


none of the defenders of these methods have yet addressed how torture inevitably becomes the method of first resort, and as such is institutionalized (softening up prisoners a la Abu Ghraib), and inevitably perverts and corrupts the whole intelligence-gathering process.


Exactly what "torture" was institutionalized?
4.18.2009 10:25pm
ArthurKirkland:
The more information emerges, the stronger the case that the leaders of our government were frightened and overwhelmed -- in general, not up to the task of understanding and responding to an intense, complex stimulus. They withdrew into a cocoon of secrecy, self-reinforced and twisted thinking, ideological rigidity and blunt-force action. This set a tone that generated unlawful, despicable consequences at the other end of the chain of command.

The important points are to admit and disclose what occurred, and to take effect steps to reduce the likelihood of recurrence.

It would be nice if people such as Bybee, Yoo, Addington, Bradbury, Feith, and Cheney would resign and/or apologize, but none of these men has exhibited the capacity for introspection that would enable them to recognize, let alone do, the right thing. I nonetheless believe punishing them should be a priority solely to the extent it would promote avoiding recurrence.
4.18.2009 10:30pm
Oren:

In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions.

Specifically, they were convicted of criminal conspiracy to deprive person in the US of his constitutional or statutory rights under color of law - 18 U.S.C. §241. That charge, unfortunately, won't fly for KSM's interrogation because it did not take place "in any State, Territory, Commonwealth, Possession, or District".

Instead, the claim is that the interrogators at GITMO violated 18 U.S.C §2340.
4.18.2009 10:32pm
mattski:

Counter-productive? It was pretty handy in 2002 when it led to the capture of KSH, whose own "torture" provided actionable intelligence.

John, how about providing some evidence for your claims?

Also, why don't you explain to us why your opinion on the efficacy of torture is more grounded in reality than the opinion of a professional interrogator?
4.18.2009 10:35pm
Anderson (mail):
Blowing up innocent men, women, and children in Pakistan with unmanned drones fired at terrorist suspects = Hooray Obama!!!!

Where, exactly, have I ever said this?

Why do torture supporters find it so difficult to argue with the real people on this thread, and instead have to invent "lefties" out of half-remembered episodes of the Bill O'Reilly show?

A little googling might reveal that, in fact, I personally have criticized carpet bombing, including the destruction of Hamburg, Tokyo, Hiroshima, and Nagasaki, as war crimes.
(Putting me in the same far-left category as Curtis LeMay.)

As for the drone strikes, I can accept the idea of excusable "collateral damage" in theory, where a legitimate &necessary military target -- here extended to include terrorist target -- can't be hit other than in a way that endangers on-site civilians.

In practice, I very much question how "necessary" some of these targets are, and whether the pros of killing Yet Another # 3 of Al-Qaeda outweigh the cons of killing innocents and enraging the civilians we should be courting. I don't really think anyone under the level of Osama or Zawahiri merits such a strike, but that's only my opinion.

So, hey, thanks for asking.
4.18.2009 10:38pm
ArthurKirkland:
One huge issue to be addressed another day is the series of deaths -- from beatings and perhaps other physical abuse -- that occurred among captives (why the current administration is disclosing information in a particular sequence is an interesting point, but the information about dead prisoners is almost certain to emerge sooner or later). Those determined by trial to have abused shackled prisoners and caused death should be punished without mercy. How high up the chain of command responsibility for each murder reaches is an issue that should be determined carefully and doggedly.
4.18.2009 10:38pm
SG:
I am sorry for the snarky tone of my last post. When one side of a debate is arguing that the other side has gone beyond the pale of morality, it makes it hard to discuss civilly. My liberal friends should think about what rhetoric they think is appropriate from anti-abortion people before posting on the torture topic.

The memos show that the CIA was looking to go right up to the line. Given that the line isn't in bold, it's not unreasonable that people think they crossed it. I'm glad that people are pushing back against what the government did. Even if you don't think the procedures crossed the line, not only is a slippery slope a valid concern, it seems that it was slipped down (Abu Ghraib).

But I read the memos as people, directly in the shadow of 9/11, honestly trying to determine what they can and can not do to gain intelligence to prevent future attacks. I can accept that people think they went too far (and indeed they may have), but there ought to be some recognition of the context. It's a lot easier after 8 years of no attacks to minimize the threat, but I think that's unfair revisionism. I don't think the executive branch (and their legislative oversight) were evil, although they certainly may have overreacted in fear.

That's why I find the moral chest-beating to be so offensive. It's not clear, even today, where the line ought to be. Is it no interrogation (POW treatment)? Is it a collar grab? Is it the full range of SERE school tactics? Given the lack of any followup actions, it now seems that Al Qaeda no longer possesses (if indeed it ever did) the capability that 9/11 demonstrated. But it is something about which reasonable people can honestly differ. The calls for prosecution for crimes against humanity are offensive. The worst are the people who complain about Bush having ignored the PDB ("Bin Laden Determined to Attack") while simultaneously holding that surveillance, interrogation, and detention all need to be held to peacetime notions of due process. That's exactly why the PDB wasn't acted upon. You simply can't have it both ways - either we use peacetime standards, which are inherently reactive, or we use wartime standards which are proactive but inherently less respectful of our civil liberties. Any decision will have tradeoffs - both sides of the decision need to be acknowledged. Abortion makes an excellent analogy.

(As an aside, I simply can't consider anything we do as SOP in training as beyond the pale. In fact, I think making our training procedures define the limit of what we'd do to captives is a good and objective way to draw a line. I acknowledge the difference between a prisoner and a volunteer, but if asked to create an objective limit on what we will do, treating our prisoners the way we treat our own seems very reasonable, and objective, way to draw a line. It's practically the golden rule. But again, reasonable people may differ.)
4.18.2009 11:00pm
rosetta's stones:

"...I personally have criticized carpet bombing, including the destruction of Hamburg, Tokyo, Hiroshima, and Nagasaki, as war crimes."


Perhaps they were, Anderson. Total War is ugly, and yes, perhaps criminal.

However, in the Pacific, if that war hadn't ended in August when it did, the famine that would have broken out in Japan would have dwarfed Ukraine in '32. Bombing railroad facilities, the thing that would have caused the dwarfing, was next on the agenda, and would have effected matters far more than Hiroshima and Nagasaki. This is not to mention the millions of Japanese lives spared when a land invasion was not required.

Not that it matters, but I'm one of those who thinks that that war was unnecessary and could have been avoided, perhaps like all wars. But the decisions made before/in wartime aren't always as clear cut as we think they are, and the consequences aren't always what we think either, are they? Did those A-bombs save lives? Did slapping around terrorists save lives? What if we hadn't dropped those bombs, how many millions die? What if we don't slap around terrorists, and they manage to kill off another 3,000 people, and wreck another $1T of our economy? All these actions are bad... all of them. Can you be certain you've added up enough of the potential dead people to know what it is we should/shouldn't be doing in any of these cases? I think this may be what's lighting up people who question your moral certitude on this.
4.18.2009 11:37pm
jukeboxgrad (mail):
moore:

those prohibited from using the techniques (law enforcement and military interogators) are hardly a definitive source of information on their effectiveness


Then presumably you have some other "definitive source of information on their effectiveness." When are you going to share it with us?

I don't think you're going to. Instead, I think you're going to continue your regular practice of making claims backed by no evidence. When are you going to show proof for your claim that torturing KSM led to "actionable intelligence?"

==============
sg:

The worst are the people who complain about Bush having ignored the PDB ("Bin Laden Determined to Attack") while simultaneously holding that surveillance, interrogation, and detention all need to be held to peacetime notions of due process.


9/11 didn't happen because we didn't have enough information. 9/11 happened because we failed to act on the information we already had. We were inept and complacent. Bush ignored the warnings conveyed by Clinton and Clarke. During his first 234 days in office, Bush said repeatedly that we needed SDI to protect ourselves from terrorism. On 9/9/01, Rummy argued that SDI was more important than counterterrorism. Torturing more people was not the answer to these problems.

I simply can't consider anything we do as SOP in training as beyond the pale


The CIA admitted that what they did to prisoners went beyond what "we do as SOP in training."

==============
rosetta:

Did those A-bombs save lives?


There seems to be some evidence that the answer to that question is yes.

Did slapping around terrorists save lives?


I have seen no real evidence that the answer to that question is yes. Have you?
4.18.2009 11:47pm
C. Gittings (mail) (www):
John Moore,

"(and some of the virtue driven absolutists here do)"

Well I'd be just as interested in seeing some examples of what you consider "absolutism" as I am in hearing you explain what you think "necessary" means.

Assuming you have the guts to actually give me a straight answer, I suspect we may discover that the only real absolutism going on around here is your own FASCISM.
4.18.2009 11:51pm
Lucius Cornelius:

Yes.

Waterboarding, is a war crime for which the international community, including the US, has prosecuted, convicted, and executed practitioners thereof.

To support waterboarding is to support a war crime.

And motivation doesn't matter, any more than it matters what motivations murderers, rapists, etc., claim.

The act itself is a war crime. Period.


Really? The exact practice described in the memo has been prosecuted as a war crime? I don't think that is correct. There have been prosecutions because of water-based torture; but the ones I have read about always involved the actual forcing of water into the lungs of the victim.

As I have discussed in a related thread, there is a great deal of disagreement about what constitutes "torture." Inflicting suffering on a victim on a pretext of trying to gather information or obtain a confession is torture. Inflicting discomfort or lesser amounts of pain on a victim in order to confuse or disorient them so that they intentionally or unintentionally provide information is not necessarily torture.

Certain actions should always be prohibited, regardless of the situation. Even in a ticking bomb situation, mutilation, rape, or murder should be prohibited and prosecuted as crimes. These actions are shocking to our sensibilities.

But how much discomfort can we inflict on a person before it becomes shocking to our sensibilities? Different people are going to have different levels of sensibilities.

Many of our enemies around the world will condemn us no matter how innocent out interrogation techniques are. If our techniques were perfectly harmless and lawful, they will lie about what we are doing. Criticisms from people like that must be ignored.

Other people, including some at this blog, are charged up emotionally and are deeply suspicious of the Bush administration. They are willing to believe the worst. Often times, they will make assumptions based on limited information. Or they will speak out in outrage to condemn actions that, if conducted by an administration they approved of, they might accept.

It is a healthy thing for us to debate the limits of what is acceptable. We are not all going to agree on an answer, but at least it will keep us aware of the potential for abuse and steer us away from the most awful practices.

Our enemies mutilate their victims and torture them to death. Often times this is done without any pretense of trying to gather information. Other times, it may be done long after any information possessed by that person would have lost its value. We do not want to become like our enemies. But we still need to gather information from any of them whom we capture.
4.19.2009 12:06am
rosetta's stones:
Did slapping around terrorists save lives?


I have seen no real evidence that the answer to that question is yes. Have you?


box, the hardest evidence I've seen would be Obama's and Holder's recent decision to both sanction these past actions and to preserve them for future use. And I'm waiting for some smart lawyer to make the case that that's NOT what they just did, because it sure seems like it to me.
4.19.2009 12:13am
Mark Field (mail):

Neither was Vice President Cheney nor anyone in the Department of Justice.


No, but they were part of a conspiracy to torture. And since the lawyers seemed to be essential to the torture, I think including them in the chain is reasonable.


Unless you believe you can discuss torture in a vacuum (and some of the virtue driven absolutists here do), then the missile strikes are relevant.


Amazingly enough, I do think torture can be discussed in a vacuum, just like, say, rape or child molestation.

In any case, you insist on making irrelevant posts in these threads, because you try to divert the discussion into whether torture should be legal (and whether it's effective), instead of conceding that it is illegal under current law and admitting, as any honest person would, that the Bush Administration violated that law.
4.19.2009 12:16am
My Middle Name Is Ralph:

As an aside, I simply can't consider anything we do as SOP in training as beyond the pale.


First, I wouldn't consider what we do to give our troops experience with and preparation for torture to necessarily not be torture. If anything, the converse makes more sense.

Second, torture has a legal definition that does not reference SERE training. So, even if you think of this as a good idea for what the law should be, it is not descriptive of what the law is.

Third, how far are you willing to go in requiring similarity for it to necessarily not be torture? SERE trainees consent to their treatment; detainees do not. SERE trainees know the trainers do not intend to and will do their best not to harm them; detainees do not. SERE trainees can make it stop whenever they choose; detainees cannot. The interrogation part of SERE training lasts a week or two; detentions last 7 years and running. Things done once or a few times in SERE training may be done dozens or hundreds of times in detentions.


It's practically the golden rule.


The Golden Rule I learned in Sunday School was to do unto others as you would have others do unto you. In the context of prisoners I would think the Golden Rule would teach us to treat detainees the way we would want our POWs to be treated. Would you be fine with others treating American POWs the way we treated detainees?
4.19.2009 12:28am
jukeboxgrad (mail):
lucius:

There have been prosecutions because of water-based torture; but the ones I have read about always involved the actual forcing of water into the lungs of the victim.


The following is a description of what the Japanese did to American POWs:

...they laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water


We prosecuted the Japanese for doing this (pdf). Feel free to explain where you see a meaningful difference between what they did and what we did.

=============
rosetta:

Did slapping around terrorists save lives?


I have seen no real evidence that the answer to that question is yes. Have you?


the hardest evidence I've seen would be Obama's and Holder's recent decision to both sanction these past actions and to preserve them for future use. And I'm waiting for some smart lawyer to make the case that that's NOT what they just did, because it sure seems like it to me.


Let's assume they actually did what they claim you did. Trouble is, there are many possible explanations. It could be they have political reasons to kick this can down the road. Or they have political reasons to use this posture to gain support and cooperation from certain groups inside the IC.

So if this is the best proof you can find, that indicates a striking absence of real proof.
4.19.2009 12:35am
My Middle Name Is Ralph:

box, the hardest evidence I've seen would be Obama's and Holder's recent decision to both sanction these past actions [slapping around terorists] and to preserve them for future use. And I'm waiting for some smart lawyer to make the case that that's NOT what they just did, because it sure seems like it to me.


Why do you think Obama just sanctioned slapping around detainees?
4.19.2009 12:43am
Andrew J. Lazarus (mail):
The exact practice described in the memo has been prosecuted as a war crime? I don't think that is correct.
I have linked on a number of threads to the photograph of waterboarding apparatus in the Khmer Rouge Museum of Torture. It appears to be exactly what we use.

It would seem that we owe Pol Pot an apology. At the very least, the exhibit should have a nultilingual disclaimer that, the name of the museum notwithstanding, the device on display is not an instrument of torture when used by the United States.

As far as justifying our torture by reference to the SERE training we do to assist our own soldiers to resist torture (excuse me, resist enhanced interrogation techniques), that's a little like confusing a colonoscopy and anal rape.
4.19.2009 12:57am
John Moore (www):
Mark Field

Amazingly enough, I do think torture can be discussed in a vacuum, just like, say, rape or child molestation

That is really quite amazing.


In any case, you insist on making irrelevant posts in these threads, because you try to divert the discussion into whether torture should be legal (and whether it's effective), instead of conceding that it is illegal under current law and admitting, as any honest person would, that the Bush Administration violated that law.

It is far more important to discuss what we should do about the difficult issue of coercive interrogation than it is to determine if the Bush administration just came up to the line or slightly crossed it. One is operational, the other is history - and revenge, and the great feeling of relief from BDS for you toads.
4.19.2009 1:13am
John Moore (www):
I find it quite telling that, in the discussion of torture in the war on terror (excuse me, the "Overseas Contingency Operation), that the Nazis and Pol Pot are relevant but the current actions in that war that are killing civilians are irrelevant.
4.19.2009 1:15am
Leo Marvin (mail):
I resent the implication that my opposition to torture is "virtue driven." For me, it's all about the "hypertrophic self-regard."
4.19.2009 1:25am
SG:
9/11 happened because we failed to act on the information we already had.

I read your link. It doesn't say what you would like it to say (emphasis added).

The information Samit pulled together dovetailed with his belief, based on interviews with the suspect, that Moussaoui had been to Afghan terror training camps. Because he did not have proof of the terror camp connection, Samit never passed this hunch on to FBI headquarters. Maltbie and Maltbie’s boss, David Frasca, chief of the radical fundamentalist unit at headquarters, were pressing Samit for facts only.

The 9/11 commission investigation reported that British intelligence directly told U.S. officials on September 13, 2001, that Moussaoui had attended a training camp in Afghanistan. “Had this information been available in late August 2001, the Moussaoui case would almost certainly have received intense, high-level attention,” the commission concluded.

As it turns out, Samit strongly suspected that very thing in late August 2001—and could not persuade FBI headquarters to take action. Moussaoui did receive high-level attention: CIA Director George Tenet was briefed on August 23. Nothing came of that.

This seems entirely appropriate for peacetime (pre 9-11/AUMF) notions of due process. If you don't have proof, merely a "hunch", then what should the FBI have done? And bear in mind that the plots (claimed to have been) foiled post-9/11 (Brooklyn Bridge/dirty bomb/etc) sound as ludicrous as destroying WTC sounded on 9/10.

There are differing standards and you have to choose your priorities. I find it perfectly valid to say that you want the government to have more than a "hunch" before it starts surveilling/detaining/interrogating someone. But don't then turn around and say the government was incompetent for not foiling some plot that some agent merely had a "hunch" about.

You can err on the side of infringing civil liberties (Type I error: false positives) or on the side of failing to foil attacks (Type II error: false negatives) but demanding perfection is fundamentally an unreasonable, (albeit not undesirable) standard. Any protocol will have some risk of both, and you have to tradeoff one against the other. Choose your priorities and own up to the tradeoff you've made.

Which is not to assert that either the pre-9/11 standard or the post-9/11 standard were optimal - only that I don't see malice, only people honestly (in general: Abu Ghraib is clearly an exception) trying to balance the two.

And again, I'm not trying to excuse every action the CIA and/or US Mililtary may have done post-9/11 - only to argue that the assertion that as a matter of policy the US government committed crimes against humanity is moral preening in the extreme. I'm sure that war crimes have occurred (as they have in every war) but given facts to date, they don't appear to have been a matter of policy. Policy as documented shows a great deal of concern for the prisoners' long-term physical and mental well-being. More facts may come to light that change my opinion, but what's known today support my belief (or perhaps hope?) that the government was (and is) operating in good faith.
4.19.2009 1:27am
John Moore (www):
Leo,

Perhaps it's "hypertrophic virtue driven self regard?"
4.19.2009 1:35am
Andrew J. Lazarus (mail):
John Moore, I am unable to decide which argument you are making, One, as far as I can tell, is that waterboarding is not torture. The other is that torture is effective and the war on terror requires (or at least permits) its use, despite the prohibitions of international and US law and the similarity of our methods to those of the Khmer Rouge.

I would much rather not have to compare American interrogation techniques with those of the Nazis (and with the Nazis coming out better, in respect to intelligence gathering). However, the Bush Administration and its lawyers made the decision, not me. If you don't want your practices compared to those of genocidal maniacs, then don't ape them.

When the discussion gets to this point, you just get flip and ignore the problems with your argument.

You have failed to explain why the information we obtain from torture is not as bogus as the information other countries have obtained from torture. Is it that our technique is better? Or that our ends are better because we're better people than they were? (You know, I have no doubt that most of the torturers of other countries were just as convinced they were doing the right thing in some dreadful calculus.) Your argument, such as I can make it out, runs backwards: that since the war on terror is important, we must be conducting our interrogations fruitfully. Tonight I read that KSM was waterboarded over 160 times, up to six times a day. Do you really think some useful information turned up on torture episode #160, or was this just an exercise in frustration, revenge, and in all likelihood outright perversion?

The questions I ask are really quite simple. Your unwillingness to engage them, but instead to find some excuse (how dare I mention Nazis in a thread about torture!?) to avoid them, suggests to me you are aware there are some serious defects in your logic.
4.19.2009 1:49am
SG:
As far as justifying our torture by reference to the SERE training we do to assist our own soldiers to resist torture (excuse me, resist enhanced interrogation techniques), that's a little like confusing a colonoscopy and anal rape.

Leaving aside that fact that you disregarded my explicit acknowledgment of the distinction between a volunteer and a prisoner, let's suppose the interrogators used the same memory blocking anesthetic that's used in a colonoscopy (unfortunately I've been there...); is the interrogation then permissible? No permanent physical harm has been done and, because there's because there's no memory of the procedure, no mental harm has been done. Was it torture? Why or why not?

If it is torture, when did it become torture? The physical procedure left no permanent impact and without a memory, it's like it never occurred. So if it's not the actual procedure that is torture but merely the memory of it, then it must have become torture by virtue of withholding anesthesia. But withholding anesthesia for the purposes of gaining compliance with interrogation would also be considered torture (correct?). If both A and not A are both torture then, unless you're claiming that mere capture is torture, then there is a flaw in your logic somewhere.

Out of curiosity, does the CIA use anesthetic(-like) drugs during interrogation? Why or why not? If the procedures do not cause long-term physical harm and anesthesia could used to prevent memory formation, why would it not be used?
4.19.2009 1:54am
John Moore (www):

John Moore, I am unable to decide which argument you are making, One, as far as I can tell, is that waterboarding is not torture. The other is that torture is effective and the war on terror requires (or at least permits) its use, despite the prohibitions of international and US law and the similarity of our methods to those of the Khmer Rouge.

I tired of the constant harping on the "is it 'torture' or is it 'coercive interrogation'" nonsense, because it was pointless. That may have confused you. I did, however, state my position that we should use waterboarding where required.

As for the constant attempts to compare our methods to those used by the really bad guys, I find it puerile. It's the sort of thing I might expect from Goebbels (see, I can compare too), but it is completely unhelpful in this discussion. Fundamentally, it is a cheap attempt at creating a moral equivalence when there is none.


You have failed to explain why the information we obtain from torture is not as bogus

Not true.


The questions I ask are really quite simple. Your unwillingness to engage them, but instead to find some excuse (how dare I mention Nazis in a thread about torture!?) to avoid them, suggests to me you are aware there are some serious defects in your logic.


In other words, if you cannot win the arguement on your terms using your techniques, you will magically deduce that there mus be some defects in my logic.

Great thinking.
4.19.2009 1:55am
SG:
Would you be fine with others treating American POWs the way we treated detainees?

Given that our enemies have not agreed to be bound by Geneva, if our POWs came home saying "that was just like SERE school", I wouldn't be outrqaged. Hell, if they came home at all (POW or no) it would be a profound improvement.

But don't ask me about prisoner treatment; ask Marianne Pearl if she thinks waterboarding is an acceptable way to treat of prisoners...
4.19.2009 2:06am
Andrew J. Lazarus (mail):
@SG
Is it no interrogation (POW treatment)?
This is not the least bit true. One can lawfully ask POWs anything one pleases. What is not permitted is to punish POWs who refuse to give information beyond name, rank, and serial number.

Decent treatment of Japanese POWs led them to volunteer actual actionable intelligence, as opposed to the shadowy conspiracy to poison the Leader's cold snack.[*]

I also think the argument that the interrogators who weren't permitted to torture are saying torture doesn't work (and there are many such) out of some sort of professional jealousy is backwards. Isn't it far more likely that the torturers (including the lawyers and directors) confabulate stories about the success of their methods so that they won't be seen as criminals and pariahs?
4.19.2009 2:12am
John Moore (www):

I also think the argument that the interrogators who weren't permitted to torture are saying torture doesn't work (and there are many such) out of some sort of professional jealousy is backwards. Isn't it far more likely that the torturers (including the lawyers and directors) confabulate stories about the success of their methods so that they won't be seen as criminals and pariahs

Professional jealousy is your interpretation.

Lack of experience, and pride in their own work is mine.

Frankly, those who argue that torture categorically does not work sound like complete idiots to me. It is so contrary to history and human nature as to be shocking. Pulling a few cherry picked cites to the contrary doesn't change that.

Furthermore, the bizarre attempt to isolate "torture" into a stand-alone intelligence venture, and judge it in that context, demonstrates very poor logic. Interrogation is part of a complex process of gathering information, involving many people and sources, and cross tabulating. It is undertaken with the understanding that the subjects will withhold information, and lie, no matter what technique is used. Furthermore, the final outcome is likely to still have degress of uncertainty ranging from very small to very large.

That this is not obviousthe debaters on this blog amazes me.
4.19.2009 2:17am
Andrew J. Lazarus (mail):
I am not declaring, Mr Moore, that I am winning the argument. That, frankly, would be for others to decide. What I am pointing out is that you evade justifying innumerable gaps in your argumentation.

For example, you have come up with no explanation other than your own say-so that information we obtain by American coercive interrogation is more accurate than all the nonsense obtained that way by others since the dawn of time. On the other side, there is evidence, much of it on this thread, that, sadly, our torture turned out just the same as all the others.

I also find it almost droll that you see no relevance in comparing our techniques with the Khmer Rouge techniques, which I think goes a long way towards establishing their iniquity, but these threads are always full of comparisons about how much worse Al Qaeda treats its captives than we do. The pro-torture arguments suffer from goose/gander problem at both the tactical and strategic level, I'm afraid.

One would think, reading your defense, that I have maliciously compared our waterboarding and other abuses to the Khmer Rouge out of spite. Really, I did not compare them to, say, Canadian waterboarding practices for an obvious reason that I think you see.
4.19.2009 2:22am
C. Gittings (mail) (www):
"One is operational, the other is history - and revenge, and the great feeling of relief from BDS for you toads."

BALONY, and the only toad around here is you.

Both are operational, your side of this is the one centered on revenge, and and the only people who are deranged re Mr. Bush are those who continue to support and defend both his failed policies and his criminal actives.

This is supposed to be a democracy where the people are supposed to make the laws through their elected representatives. For that to be true, those laws must be obeyed and they must be enforced.

Mr. Bush and his gang set out to systematically nullify all of our laws wholesale so they could literally do anything they wanted to regardless of the law. There is no greater crime, and there is no greater threat to our security. We revolted against George II for a lot less than what Mr. Bush and his gang did -- the closest historical precedent is Charles I, who got his head chopped off for committing war crimes against his own people.
4.19.2009 2:25am
John Moore (www):

you have come up with no explanation other than your own say-so that information we obtain by American coercive interrogation is more accurate than all the nonsense obtained that way by others since the dawn of time.

Since the dawn of time, people have been getting useful intelligence from torture and other interrogation techniques. I don't claim we are better.

What I find rather sad is the state of denial of the "anti-torture" crowd about the relative effectiveness of coercive techniques. They would have us believe that throughout history those who used torture to gain information (as compared to the far more frequent use as a punishment or terror weapon) were all fools.

I also find it almost droll that you see no relevance in comparing our techniques with the Khmer Rouge techniques

There is more relevance, when discussing the appropriate degree of moral outrage, to CONTRAST Al Qaeda's treatment of people in the war that we are discussing, than in attempting EQUIVALENCE between our actions and those of the Khmer Rouge. The latter is a form of "guilt by association" - it implies that we are as bad as the Khmer Rouge because we share a technique. That is as logical as comparing us to the Nazi's because we also wear uniforms. If this is not the motivation, why even bring it up?

Furthermore, Al Qaeda's behavior usually comes up when some form of the argument is made that "we shouldn't torture or our enemies will do it."
4.19.2009 2:31am
Kirk:
C. Gittings,

See you in the civil war, dude! Hope you enjoy it...
4.19.2009 2:31am
Andrew J. Lazarus (mail):
Mr Moore, I really don't think that histories of interrogation practices of WWII POWs are cherry picking. Nor op-eds (and the one cited upthread is not unique) by our own interrogators. It is, in any event, much more than you have produced.

Of course intelligence gathering involves cross-checking and has a margin of error. Professional interrogators seem to believe that torture introduces more error into the system than genuine information. This makes sense, since one good[!] way of cross-checking A's information obtained by torture is by getting B to corroborate it, under torture. This is not some once-in-a-century cherry-picked example: it was the norm of the Communist show trials, which were replete with detailed information attested by multiple sources, not a shred of which is now believed to be true.

Or perhaps you are right, our professional interrogators just don't know how easy it would be if only they would let go and join the Dark Side. And fun too, for a certain type.
4.19.2009 2:34am
John Moore (www):

This is not some once-in-a-century cherry-picked example: it was the norm of the Communist show trials, which were replete with detailed information attested by multiple sources, not a shred of which is now believed to be true.

Irrelevant to this discussion. The communists had predefined results that they intended to get, and they tortured until the specific confession was produced. That says nothing at all about the reliability of torture for intelligence purposes.

As an aside, it was a bizarre quirk of their system, because there wasn't a strong objective purpose for achieving these confessions (identical or otherwise), but it became very important to the organs of terror.

Professional interrogators seem to believe that torture introduces more error into the system than genuine information.

SOME professional interrogators. And I'm sure they believe that. And frankly, given the choice between a few years to work on someone using "soft techniques" and a month to work on someone with whatever techniques were available, I'd choose the former.
4.19.2009 2:41am
Andrew J. Lazarus (mail):
Since the dawn of time, people have been getting useful intelligence from torture and other interrogation techniques.
As I showed in my cherry-picked examples, torture appears to be one of the clumsiest, error-filled techniques. So clumsy that Nazis didn't use it when they needed accurate intelligence, and that example certainly shows that it wasn't moral compunction.

That's why I suggest that the reasons for torture are found elsewhere: as a tool to terrorize the potential victims, as a tool for eliciting boogeyman stories to terrorize the citizens of the state doing the torture, and to elicit false confessions for other reasons. Outside fictional TV, there seem to be very few if any verifiable examples of torture as a worthwhile investigative tool, while there are many examples of accepting egregious falsehoods obtained by torture. And, incidentally, even you seem to admit we will be no better than anybody else at distinguishing the one from the other.
4.19.2009 2:43am
Andrew J. Lazarus (mail):
Irrelevant to this discussion. The communists had predefined results that they intended to get, and they tortured until the specific confession was produced. That says nothing at all about the reliability of torture for intelligence purposes.
And what, exactly, makes you so sure that this was not the case with our torture?
4.19.2009 2:44am
John Moore (www):

And what, exactly, makes you so sure that this was not the case with our torture?

Given the situation at the time, it is highly unlikely. In 2002, the US was in great fear of being attacked, and desperate for information. This is probably why the leaders of congress, repeatedly briefed on the details of interrogation, were concerned that we weren't doing enough!

Of course, if it was the goal, it renders the discussion of the utility of torture for intelligence gathering moot, doesn't it?
4.19.2009 2:52am
John Moore (www):

That's why I suggest that the reasons for torture are found elsewhere: as a tool to terrorize the potential victims, as a tool for eliciting boogeyman stories to terrorize the citizens of the state doing the torture, and to elicit false confessions for other reasons.

Are you suggesting these are the reasons the US used "torture" on three, and only three ranking Al Qaeda members?
4.19.2009 2:56am
John Moore (www):
4.19.2009 2:58am
SG:
it implies that we are as bad as the Khmer Rouge because we share a technique. That is as logical as comparing us to the Nazi's because we also wear uniforms. If this is not the motivation, why even bring it up?

While I think the comparison is overly glib, your analogy isn't valid either. Wearing uniforms is a moral good (distinguishing civilians and combatants), but the fact is that coercion of prisoners is an evil. Perhaps a justifiable evil, but an evil nonetheless.

I think most of us agree that torture should be out of bounds (think of abusing a prisoner's child). All torture is coercive but not all coercion (hell, just holding prisoners is coercive) is torture. The facts as stipulated so far do not lead (me) to the conclusion that US has tortured prisoners as a matter of policy: intelligence and not retribution is the motivating force, great concern is show for the prisoner's long-term physical and mental well-being, and strict limits are set.

Both the abortion and the Hiroshima analogies seem better analogies to this debate about interrogation techniques. In a perfect world, none of these would happen (while uniforms would still would be worn...), but in this world it's a legitimate debate as to whether or not the chosen policy was justified.
4.19.2009 3:00am
Andrew J. Lazarus (mail):
Stephen Bradbury re-authorized torture in 2005/6. That's a long way from 2002.

I will add that I'd very much like to know what the Democratic leaders of Congress knew. Their conduct would be criminal and disgraceful if they were briefed accurately about the techniques in use. I'm not sure that is the case.

I am also bothered by your refusal to grant other countries the same rights. We're not the only people who have been attacked but I hardly see you letting Stalin and Pol Pot (both of whom were invaded in force) off the hook!
4.19.2009 3:01am
John Moore (www):

I am also bothered by your refusal to grant other countries the same rights. We're not the only people who have been attacked but I hardly see you letting Stalin and Pol Pot (both of whom were invaded in force) off the hook!


Are you really serious, or just trying to pull my chain?

Stalin tortured his own citizens as a matter of maintaining a terror state. Pol Pot committed all sorts of atrocities, again against his own citizens, as part of an insane Maoist state. In both cases, their actions went far beyond what was authorized in those memos.
4.19.2009 3:07am
John Moore (www):

Stephen Bradbury re-authorized torture in 2005/6. That's a long way from 2002.


When was the last waterboarding?
4.19.2009 3:08am
Public_Defender (mail):

The memos show that the CIA was looking to go right up to the line. Given that the line isn't in bold, it's not unreasonable that people think they crossed it. . . .

That's why I find the moral chest-beating to be so offensive. It's not clear, even today, where the line ought to be.

But when the line is between criminal and non-criminal behavior, you approach the line at your risk. How persuasive would it be for me to argue, "Yeah, the line was 16 years old, but how could my forty-year-old client know she was 15 years 11 months?"
4.19.2009 6:15am
Lucius Cornelius:
jukeboxgrad:


The following is a description of what the Japanese did to American POWs:



...they laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water




We prosecuted the Japanese for doing this (pdf). Feel free to explain where you see a meaningful difference between what they did and what we did.



I've read other descriptions of the Japanese water torture. The effort there seemed focused on trying to get water into the victim's lungs. Also, what was the point of this torture? Within a few days of their capture, the victims would have had no secrets to give up. And the use of the torture by the Japanese was wide spread, which suggests to me that they probably did not have an opportunity to exercise care in making certain that victims were not genuinely harmed.


Andrew J. Lazarus:


It would seem that we owe Pol Pot an apology. At the very least, the exhibit should have a nultilingual disclaimer that, the name of the museum notwithstanding, the device on display is not an instrument of torture when used by the United States.



That is a disgusting statement and demonstrates your hatred of Bush. The apparatus may look the same. But a lot depends on how it was used. From the memos, it appears that the practice was to make certain that no water entered the victim's (I am just going to use that word, instead of something neutral like "subject" so we don't have to argue that point) lungs and to monitor the victim's health so that genuine harm did not result. Considering the death toll in Cambodia, I don't think the Khmer were concerned with anything other than inflicting pain and killing as many people as possible.

jukeboxgrad and Lazarus, I accept that you have very high expectations for people acting on our behalf. But your comparisons with the Khmer Rouge and the Japanese of WW II are not accurate and are not helpful for this discussion.
4.19.2009 8:56am
Tom Perkins (mail):

You are morally depraved, but not necessarily xenophobic or racist. Feel better?


Doing what is needful cannot be depraved.

To prosecute a war, you are necessarily already prepared to kill your enemy--and leave them horribly injured for a long life yet--and inadvertently struck non-combatants, children included, besides. That's what a war is.

It's a good thing to undertake it with the seriousness and a willingness to be brutal enough about it quickly enough that it is over the more soon, and with less harm in sum done. Intelligence from interrogation is of course a big part of winning.

This nation has I think wisely, and not for the purpose of being on the side of the angels, signed on to certain treaties which forbid "torturous" treatment of actual POWs. These are not POWs, they by their own actions do not qualify. The constitution certainly forbids the use of torture in the domestic legal setting. These are not domestic criminals. It would be quixotic, ahistorical, and to go by the example set by times past unconstitutional to suggest the constitution forbids the ill or harsh treatment of such persons as AlQaeda members for the purpose of getting information from them in time of war.

This does not mean Abu Grhaib was an accepted or inevitable consequence of these memos--it was the result of the failure of General Karpinski.

And no, the people here opposing harsh treatment of AQ prisoners are not I think being virtuous--if they are, prudence is none of their virtues--instead I think they are indulging in the luxury of moral vanity. Preening, I think some have called it.

Yours, TDP, ml, msl, &pfpp
4.19.2009 8:58am
C. Gittings (mail) (www):
John Moore,

"...the US used "torture" on three, and only three ranking Al Qaeda members..."

That is a complete misrepresentation.

The US used water-boarding on three alleged ranking members of Al Qaeda. The US also used various other forms of torture on literally thousands of other prisoners by policy. Every prisoner at Gitmo has been tortured to some extent.

And water-boarding IS torture, no quotes required; your dishonest, "absolutist" sophisms regarding what is or isn't severe, etc, notwithstanding.

Speaking of operational, torture is an act which has a purpose -- I know what my functional concept of torture is, what's yours?
4.19.2009 9:16am
Tom Perkins (mail):
@ jukeboxgrad who wrote, and lied by implication when he did it:


They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water


There is nothing described here to prevent water from entering the lungs, this clearly differentiates it from American practice WRT to captured AQ personnel.


@Public_Defender


How persuasive would it be for me to argue, "Yeah, the line was 16 years old, but how could my forty-year-old client know she was 15 years 11 months?"


It should be perfectly persuasive if the child lied and the client had no reason to disbelieve. Do you propose we should check each others "internal passports" before mutually agreeable assignations can take place? If so, how fascist of you.

@ Johnathan Adler:


UPDATE: Kevin Jon Heller suggests that CIA interrogators did not rely upon the OLC memos in good faith, as the CIA utilized techniques that were notably harsher than those described in the memos.


If in fact the CIA made a practice of exceeding what was asserted to be legal in these documents, then I would have to assume then minority now majority leaders in Congress were aware they were successful in persuading the CIA to not be too soft on them. Question to follow.

It is also illegal and unconstitutional for the Executive to spend money without a Congressional appropriation. In the manner of the Special Unacknowledged Access programs, which spawned the D-21, SR-71, and likely whatever "Aurora" like aircraft that keep on making weird straight line re-entry "earthquakes" on west coast seismic monitoring stations—in that manner can a small subset of Congress, the Majority and Minority leaders and whips, as in the case of SUAs, authorize departures from what would otherwise be the law?

Yours, TDP, ml, msl, &pfpp
4.19.2009 9:28am
mattski:

Since the dawn of time, people have been getting useful intelligence from torture and other interrogation techniques. I don't claim we are better.

One thing, it is difficult to assess the accuracy of this claim since our "records" don't go back that far. Another, this is a queer way to justify a questionable practice. Are you saying that progress is not an integral aspect of human history? You don't think that people have been learning from experience over the centuries? I rather think we do. Refrigerators, court rooms, hot showers, democracy, these look like pretty solid gains to me. So, let's keep it on the up and up. That's a lot of what is motivating people like myself who are opposed to torture.


What I find rather sad is the state of denial of the "anti-torture" crowd about the relative effectiveness of coercive techniques. They would have us believe that throughout history those who used torture to gain information (as compared to the far more frequent use as a punishment or terror weapon) were all fools.

OK, John. I'll grant you for the sake of argument that torture might be effective in a minority of circumstances. It's also possible, even likely, that the nature of torture makes its risks outweigh its benefits. Chiefly, it degrades and deranges those who employ it. Once you start relying on it the temptation to use it even when not called for becomes impossible to resist. I'll cite the number of times KSM was waterboarded as evidence for this claim although I think it is intuitively obvious for most.
4.19.2009 9:30am
Tom Perkins (mail):
@ mattski


Are you saying that progress is not an integral aspect of human history?


I am saying that refraining from what you are calling torture in this instance would not be progress.

Yours, TDP, ml, msl, &pfpp
4.19.2009 9:37am
mattski:

jukeboxgrad and Lazarus, I accept that you have very high expectations for people acting on our behalf. But your comparisons with the Khmer Rouge and the Japanese of WW II are not accurate and are not helpful for this discussion.

I strongly disagree. The comparisons are based on the specific practices. What do phrases like "the gloves are coming off" mean to you? And did you check the link?
4.19.2009 9:40am
Tom Perkins (mail):

Chiefly, it degrades and deranges those who employ it. Once you start relying on it the temptation to use it even when not called for becomes impossible to resist.


No, it doesn't become impossible to resist. Many people do far worse things day-in and day-out in the practice of the temporary profession of infantryman. Temporary, but for years on end.

Most do not become pathological maniacs.

You do not speak to a universal human truth, but a very occasional one. Some police are scum-bag liars, and will say whatever they need to secure a conviction. That doesn't mean we should have no police.

Yours, TDP, ml, msl, &pfpp
4.19.2009 9:43am
Mark Field (mail):

Mark Field


Amazingly enough, I do think torture can be discussed in a vacuum, just like, say, rape or child molestation


That is really quite amazing.


I look forward to your posts justifying child molestation.
4.19.2009 10:10am
Lucius Cornelius:
Mattski:


I strongly disagree. The comparisons are based on the specific practices. What do phrases like "the gloves are coming off" mean to you? And did you check the link?



Well, I for one would be a lot less scared hearing that come from someone in the Bush administration than I would be if I heard it coming from someone working for Joseph Stalin, Pol Pot, or the head of the Japanese government during WW II.

And yes, I did read the post at the link you gave.
4.19.2009 10:12am
Tom Perkins (mail):
@ MarkField


I look forward to your posts justifying child molestation.


Mark, do have children? If you do, can you honestly tell me that if molesting some other child were somehow the only way to save your child's life, that you would commence planning for your baby's funeral services?

Yours, TDP, ml, msl, &pfpp
4.19.2009 10:31am
Oren:



This is supposed to be a democracy where the people are supposed to make the laws through their elected representatives. For that to be true, those laws must be obeyed and they must be enforced.


Just for information purposes (in case I'm ever an interrogator and you are in the OLC), could you tell us which of the lesser methods describe in the memos (collar-grab, attention-grab, face-slapping, stress positions, wall standing, walling, sleep deprivation, forced nudity, dietary restriction, temporal disorientation) constitute torture as defined by 18USC2340 et seq?
4.19.2009 10:42am
Mahan Atma (mail):
Stalin tortured his own citizens as a matter of maintaining a terror state. Pol Pot committed all sorts of atrocities, again against his own citizens, as part of an insane Maoist state. In both cases, their actions went far beyond what was authorized in those memos.


I guess they should have retained John Yoo.
4.19.2009 10:45am
Mahan Atma (mail):
Just so we're all still clear:

Pouring water over a terrorist suspect for 3 minutes, open handed slaps, exposure to caterpillars = torture, war crime, etc.


Your description of the methods we used is ridiculously inadequate. In reality, we chained them naked in stress positions for weeks and months at a time, where they shit and pissed on themselves (if they were lucky, they got a bucket, but no toilet paper), all while depriving them of sleep and food, dousing them with cold water in air conditioned rooms, blasting loud music and lights, and physically abusing them -- slapping them, throwing them against walls, etc. In the midst of this, we would periodically waterboard them.

Describing any one method in isolation, done for a short period of time, and in the abstract, doesn't sound quite so bad. But we combined them all together and applied them for weeks and months at a time.

Without a doubt, that causes severe physical pain and prolonged mental pain. That's torture.

Blowing up innocent men, women, and children in Pakistan with unmanned drones fired at terrorist suspects = Hooray Obama!!!!


If Obama had ordered that innocent men, women, and children be blown up intentionally, I definitely would have said that was a war crime. Do you have any evidence of this?

Thanks in advance for not dodging these questions.


You're welcomed in retrospect.
4.19.2009 11:09am
Public_Defender (mail):
Me:

How persuasive would it be for me to argue, "Yeah, the line was 16 years old, but how could my forty-year-old client know she was 15 years 11 months?"

Response:

It should be perfectly persuasive if the child lied and the client had no reason to disbelieve. Do you propose we should check each others "internal passports" before mutually agreeable assignations can take place? If so, how fascist of you.

Many, if not most or all, statutes make mistake of age irrelevant. The only way to avoid prosecution is to stay away from anyone even close to the age. If you come close to the line between criminal and non-criminal behavior, it's all on you if step across it.
4.19.2009 11:15am
Tom Perkins (mail):
@ Mahan Atma


I guess they should have retained John Yoo.


You know, thinking that waterboarding a handful of really bad guys is enough like killing off a quarter of your own innocent civilian population is why the label of morally vacuous does not apply to those who wrote, approved, or employed these memos as authorization--the morally vacuous are those who can't see the enormous and relevant differences between the two events.

Yours, TDP, ml, msl, &pfpp
4.19.2009 11:18am
Mahan Atma (mail):
"You know, thinking that waterboarding a handful of really bad guys is enough like killing off a quarter of your own innocent civilian population is why the label of morally vacuous does not apply to those who wrote, approved, or employed these memos as authorization--the morally vacuous are those who can't see the enormous and relevant differences between the two events."


You give straw men a bad name.

(Sorry for stealing this line from someone else around here.)
4.19.2009 11:22am
Tom Perkins (mail):

Many, if not most or all, statutes make mistake of age irrelevant.


We're talking about whether a law, and the interpretation of it, is just--so you cite an example of a manifestly unjust use of a statute to support another manifestly unjust interpretation of a statute?

Strict liability is usually used as a mechanism of avoiding political accountability on the part of the elected, it's not wise, just, or brave.

Yours, TDP, ml, msl, &pfpp
4.19.2009 11:30am
Tom Perkins (mail):
@Mahan Atma


"You give straw men a bad name.

(Sorry for stealing this line from someone else around here.)"


You wrote what you wrote. Where's my strawman?

Yours, TDP, ml, msl, &pfpp
4.19.2009 11:35am
Oren:


Without a doubt, that causes severe physical pain and prolonged mental pain.

Your certainty is somewhat disturbing because you haven't told us how to get to that result.

Is 2 weeks of sleep deprivation + dietary restriction OK? 2 2 days? What if we add some loud music for 6/12/18/24 hours a day. Please explain to me how you are reaching that conclusion!

Note: I'm not trying to troll here. You can look at my previous comments on the issues to see that I'm usually somewhere in the middle. What the memos crystalized for me is the essential problem of going from a vague statutory command ("severe physical or mental pain") into clear guidelines for the methods of interrogation.

Oh, that and I'm somewhat disappointed by the lack of distinction between the obviously-torture methods (waterboarding) to the doubtfully-torture methods (collar-grabbing).
4.19.2009 11:37am
Mahan Atma (mail):
BTW, the John Yoo line was a joke. That should have been evident by the fact that it would have been impossible for Stalin to [i]actually[/i] retain John Yoo...

Unfortunately, John Yoo did write a memo essentially opining that the Commander in Chief could do whatever he/she wants in the exercise of his/her war powers. I believe he publicly admitted that this would allow the crushing of a child's testicles, for example.

So Perkins, if you think Yoo's memos put some limit on the Commander in Chief that would have made it illegal to kill off a quarter of the civilian population in the exercise of his/her war powers, please point it out.

Now maybe (hopefully) Yoo would have thought it immoral for the President to do so, but as nearly as I can tell, he gave the go-ahead for it under his interpretation of the law.

Did he not?
4.19.2009 11:37am
Public_Defender (mail):
I won't thread-jack this by debating the policy arguments for and against strict liability for statutory rape. There are lots of times when you can get close to the line of criminality. Another example is securities fraud. If your money making scheme borders on fraudulent, you take the risk of criminal liability.

The check on abusive prosecution is the proof-beyond-reasonable-doubt standard. If the government wanted to prosecute the torturers, the prosecutor would have to convince the jury that the interrogation techniques were torture beyond a reasonable doubt.
4.19.2009 11:39am
rosetta's stones:

My Middle Name Is Ralph: "Why do you think Obama just sanctioned slapping around detainees?"


I'm not sure I do, I'm still thinking about the other day's actions. For all his past rhetoric, Obama sure didn't take a strong position on this, would be one quick take. Another would be that no prosecutions appear imminent, and that might not necessarily constitute "sanction", but it is directionally significant for sure. A 3rd snap would be that Holder/Obama seem to have reserved the ability to employ whatever coercive interrogation methods they deem necessary.

Like I say, I'm waiting for one of the smart lawyers to really churn through this, and that may take a bit more time here. But nobody appears to want to be the first to jump into the water. It's like Jaws on Labor Day weekend.
4.19.2009 11:43am
Mahan Atma (mail):
Your certainty is somewhat disturbing because you haven't told us how to get to that result.


OK, let's break it down then. Let's start with the fact that they have people chained in stress positions for weeks at a time. Let's be even more specific:

The detainees were typically chained by the wrists from above, naked. (See Danner's excerpts of the ICRC report on all of this.) So one is constantly forced to support one's self by one's legs.

This presents a problem, because eventually your legs give out, or at the very least, you begin to fall asleep (if they let you). So the cuffs start cutting into your wrists. Blood flow goes haywire, and causes physical problems with your limbs. Clots can travel to other parts of the body, like your brain and heart, which can kill you.

And it causes severe pain. Being shackled by your wrists from above in a standing position, for weeks at a time causes severe pain. Are you disputing this?
4.19.2009 11:52am
Oren:

And it causes severe pain. Being shackled by your wrists from above in a standing position, for weeks at a time causes severe pain. Are you disputing this?

Sure, for weeks. But 8 hours at a time? 12?

I'm not disputing your result in the obvious case, I'm asking for a methodology and you keep giving me results.
4.19.2009 11:56am
Mahan Atma (mail):
"Sure, for weeks."


OK, so we did in fact torture the detainees.

" But 8 hours at a time? 12?

I'm not disputing your result in the obvious case, I'm asking for a methodology and you keep giving me results."


I'm not going to give you a methodology. If the line between torture and Method X is that fine, we shouldn't be doing it.
4.19.2009 12:02pm
Andrew J. Lazarus (mail):
I am greatly bothered (as is probably evident) by the unwillingness of pro-torture posters to give others the same lax benefit of the doubt that they grant the United States on some intrinsic basis.

I can assure you, the Cambodian, German, Japanese, and That-Cave-Over-There torturers all, or almost all, felt strongly that they were acting in the national interest in an emergency. We showed, shall we say, a great deal less mercy towards them than we are showing towards our own. We try to convince ourselves that the Japanese technique in which some water actually might enter the lungs was worse than our technique with its scientific use of towels and plastic wrap. When confronted with a photograph of the Cambodian waterboard displayed in a torture museum identical to our own, we grasp at the straw that as homicidal maniacs, the Khmer Rouge must have used it in more barbaric ways than we do. If you look at the third picture down, you will see that a surviving victim's painting of his experience shows a towel over the victim's face, just like we do. No difference in technique. These distinctions-without-difference are all working backwards from our own conviction in our own goodness.

This sort of moral favoritism is universal (even if reprehensible), and is a reason why civilized nations came together to make bright line prohibition of torture. The idea was to put an end to reasonable-sounding but wrong self-serving rationalizations like "Doing what is needful cannot be depraved." We didn't buy that the Germans had the right to do what the Germans saw as needful to fight Judeobolshevism. We just aren't willing to apply objective, universal standards to ourselves.
4.19.2009 12:10pm
Andrew J. Lazarus (mail):
I'm asking for a methodology and you keep giving me results.
While I think that the point should be obvious, the ICRC reported that KSM had scarring and physical damage consistent with his recounting of standing this way, including the extreme edema of the ankles and lower legs which occurs. I believe it was Danner's article in the NY Review of Books (but I am not sure) that stated extreme pain, swelling, etc. begins after about four hours.
4.19.2009 12:16pm
Tom S (mail):
I would be interested to know what the benefit of waterboarding someone 83 times in a month is. It certainly would not be to obtain actionable, real-time intelligence.
4.19.2009 12:17pm
My Middle Name Is Ralph:

This nation has I think wisely, and not for the purpose of being on the side of the angels, signed on to certain treaties which forbid "torturous" treatment of actual POWs. These are not POWs, they by their own actions do not qualify.


The status of detainees as POWs, unlawful combatants, or whatever else you might want to label them is completely irrelevant to whether or not the Federal Torture Statute was violated. The Federal Torture Statute applies regardless, and even the Bush OLC makes no attempt to argue otherwise. The torture memos are about whether the statute was violated; not whether they applied to the detainees. I really wish people would make at least a minimal effort to understand what the law is before they speak out of ignorance.
4.19.2009 1:50pm
Mahan Atma (mail):
4.19.2009 2:50pm
Anderson (mail):
OK, John. I'll grant you for the sake of argument that torture might be effective in a minority of circumstances.

Right. And so might sodomizing prisoners.

We seem to have a consensus that the latter is unacceptable, even though I've seen no explanation of how, under the Bybee memos, it's any worse than waterboarding.

Used to be, we were clear that there were Some Things We Just Don't Do, and torture was on that list.

Now it's not, for some people.
4.19.2009 2:58pm
John Moore (www):
mattski


OK, John. I'll grant you for the sake of argument that torture might be effective in a minority of circumstances.

Finallly! Thank you.

It's also possible, even likely, that the nature of torture makes its risks outweigh its benefits.

It is possible. It is a reasonable thing to debate. Consider this.



Chiefly, it degrades and deranges those who employ it. Once you start relying on it the temptation to use it even when not called for becomes impossible to resist. I'll cite the number of times KSM was waterboarded as evidence for this claim although I think it is intuitively obvious for most.
4.19.2009 3:11pm
John Moore (www):


Chiefly, it degrades and deranges those who employ it.

Evidence? I think it depends significantly on the circumstances and how how you choose your interrogator.

Once you start relying on it the temptation to use it even when not called for becomes impossible to resist. I'll cite the number of times KSM was waterboarded as evidence for this claim although I think it is intuitively obvious for most.

Nonsense. It's not a drug unless the interrogator is a sadist to begin with.
4.19.2009 3:13pm
John Moore (www):

Right. And so might sodomizing prisoners.

We seem to have a consensus that the latter is unacceptable, even though I've seen no explanation of how, under the Bybee memos, it's any worse than waterboarding.

Probably because sodomizing the prisoners was clearly out of bounds, Bybee didn't need to address it in his memos.
4.19.2009 3:14pm
Oren:

I'm not going to give you a methodology. If the line between torture and Method X is that fine, we shouldn't be doing it.

So Congress wrote a statute that forbids Y, and you decided that it applies also to things that are similar to Y?
4.19.2009 3:17pm
Oren:

I really wish people would make at least a minimal effort to understand what the law is before they speak out of ignorance.

And I really wish people would actually attempt to provide analysis on the statute instead of conclusory remarks. "Severe physical or mental pain" does not mean "anything I don't approve of".


I believe it was Danner's article in the NY Review of Books (but I am not sure) that stated extreme pain, swelling, etc. begins after about four hours.

This is a novel method of statutory construction, but I don't know if it's what Congress intended.
4.19.2009 3:22pm
Oren:

Used to be, we were clear that there were Some Things We Just Don't Do, and torture was on that list.

For some operational definition of torture that is capable of being meaningfully applied in real scenarios.
4.19.2009 3:27pm
Mahan Atma (mail):
"So Congress wrote a statute that forbids Y, and you decided that it applies also to things that are similar to Y?"


No, I'm saying so as a matter of policy. We aren't compelled to do everything that is not forbidden.
4.19.2009 3:29pm
John Moore (www):

So Congress wrote a statute that forbids Y, and you decided that it applies also to things that are similar to Y?

And even beyond that... congressional leaders also were aware of what was being done, and yet still the assertion that this was forbidden by congress.
4.19.2009 3:41pm
John Moore (www):
It is likely that the statute was written to be vague so that it could be used for political purposes to justify more than some supporters intended, when one group is in power, and to persecute those who did what others intended, when the other group was in power.

Either way, congress skates.
4.19.2009 3:43pm
Andrew J. Lazarus (mail):
Probably because sodomizing the prisoners was clearly out of bounds, Bybee didn't need to address it in his memos.
The technical term for this is begging the question. If you need a more detailed explanation: for us, it appears that until the CIA did waterboarding, waterboarding was just as much out of bounds as sodomizing prisoners. Indeed, I suspect that if our interrogators had already sodomized detainees, Bybee and Yoo would have found an argument for its legalization. SERE would not have been useful, but perhaps they could have wrapped it into the upcoming repeal of DADT.

Nor did the US State Department have any trouble determining that our interrogation practices were out of bounds, when done by countries other than the United States. This does not appear to have required much deliberation on their part. And Bradbury acknowledged that.
4.19.2009 3:44pm
John Moore (www):

for us, it appears that until the CIA did waterboarding, waterboarding was just as much out of bounds as sodomizing prisoners.


Somehow, I don't think serious people would believe that equivalence.
4.19.2009 3:51pm
Andrew J. Lazarus (mail):
Mr Moore, stating that waterboarding was once seen as unacceptable as sodomizing prisoners is not quite an equivalence. It's more like saying that Charles Manson's acts were just as out of bounds as Adolf Hitler's. While there may be some quibble about "more out of bounds", my point is that neither act was seen as anywhere near permitted. I don't find your belief that sodomy is obviously wrong while waterboarding is not any more persuasive when ascribed to "serious people" (likely, your definition of "serious" is entirely circular, comprising those who agree with you) instead of you individually. I'd say it's more like comparing Charles Manson and Ted Bundy.

I spent a great deal of my life marking math papers. The error in the student proof was usually found in the sentence with "obviously", "trivial", or "it goes without saying".
4.19.2009 4:05pm
Anderson (mail):
Probably because sodomizing the prisoners was clearly out of bounds

ROTFLMAO. When it comes to raping prisoners, ALL we can get out of Mr. Moore is "clearly out of bounds," not to be considered by "serious people."

None of which Mr. Moore considers valid argument where torture -- or, if that assumes the conclusion, waterboarding -- is concerned.

The contention on the table is: sodomizing KSM, with sufficient attention to detail so's not to cause severe bodily pain or lasting injury, is not torture according to the Bybee memos' standard.

If anyone can argue, with reference to the memos, why forcible sodomy is distinguishable ... we are all ears.

A similar argument would apply, it seems, to shocks from an electric cattle-prod. And god knows what else.

If Mr. Moore and his allies are accepting a legal definition of "torture" that does not exclude forcible sodomy, under controlled conditions of course, then please say so.

That will assist the rest of us in giving your arguments as to what is/ain't "torture" the weight they deserve.
4.19.2009 4:06pm
Oren:

No, I'm saying so as a matter of policy. We aren't compelled to do everything that is not forbidden.

But the executive isn't constrained by it then. I'm not asking you to tell me what you think the executive should do (I know that already), I'm asking you to tell me what the statute forbids. So far, you have fastidiously avoided that central question.
4.19.2009 4:22pm
Mahan Atma (mail):
"But the executive isn't constrained by it then. I'm not asking you to tell me what you think the executive should do (I know that already), I'm asking you to tell me what the statute forbids. So far, you have fastidiously avoided that central question."


What the statute forbids is "severe physical or mental pain or suffering."

I'm saying that there is sufficient uncertainty in the question of exactly how many days of sleep deprivation fit this criterion (11 days or 12?) that we are better off not trying it.

It's analogous to the rule courts use when applying the "void for vagueness" doctrine. If the language is sufficiently broad so that you have to ask whether your conduct comes under its purview, then you shouldn't do it. (And while instances of truly vague statutes do exist, this is not one of them.)
4.19.2009 4:43pm
Anderson (mail):
What the statute forbids is "severe physical or mental pain or suffering."

We have plenty of evidence to judge this by, including the reports of torture victims over the past century.

No one arguing in good faith needs to wonder whether making people feel like they're drowning is "severe physical suffering."

The fundamental issue remains that we should not even be thinking in terms of "how do we make these people so miserable that they'll talk?" That is asking the wrong question, the answer to which will always end up in torture.

Rather, effective interrogation rests on the question, "how do I make this person want to volunteer what he knows?" He may not give up everything all at once -- but as ample experience, bolstered by these latest memos, shows, torture doesn't make him do that either. The interrogator gets clues, which are correlated by analysts, providing the interrogator with the future direction of questioning. A smart interrogator -- and are we to believe that the United States cannot produce smart interrogators? -- can do much more than a torturer ever could.
4.19.2009 4:55pm
mattski:

Used to be, we were clear that there were Some Things We Just Don't Do, and torture was on that list.

Anderson, I was careful to include the words "for the sake of argument." I am firmly of the opinion that torture is among the things we simply should not do whether it is ever effective or not.
4.19.2009 5:44pm
Anderson (mail):
Mattski, as happens so often on such threads, I was plucking out a quote from someone else's comment &using it as illustration.

I didn't intend to address you personally, tho I can see it looked like that.
4.19.2009 5:57pm
Andrew J. Lazarus (mail):
There was also the problem that Mr Moore either ignored or does not understand what mattski's "for the sake of argument" means.

Let me point out again that Moore is using two incompatible standards. On waterboarding, he insists we admit that the technique (and other coercive methods) produces intelligence. There are very severe problems with this claim, but assuming for the sake of argument his own claim, surely the question about the legality and desirability of forced sodomy should be answered by seeing whether it has produced intelligence, not the a priori and subjective yuck factor Moore suddenly invokes to place rape beyond the pale.
4.19.2009 6:14pm
Just an Observer:
For anyone wondering about whether Obama is leaving the door open to prosecuting the higher-up officials responsible, today his chief of staff threw cold water on that idea on ABC's This Week:

STEPHANOPOULOS: Final quick question. The president has ruled out prosecutions for CIA officials who believed they were following the law. Does he believe that the officials who devised the policies should be immune from prosecution?

EMANUEL: What he believes is, look, as you saw in that statement he wrote, and I would just take a step back. He came up with this and he worked on this for about four weeks, wrote that statement Wednesday night, after he made his decision, and dictated what he wanted to see. And Thursday morning, I saw him in the office, he was still editing it.

He believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they were -- should not be prosecuted either, and that's not the place that we go -- as he said in that letter, and I would really recommend people look at the full statement -- not the letter, the statement -- in that second paragraph, "this is not a time for retribution." It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution.

We have a lot to do to protect America. What people need to know, this practice and technique, we don't use anymore. He banned it.


No explanation, except the previously stated mush. The obvious political calculation remained unstated.
4.19.2009 6:18pm
TA:
Excerpt from:

http://www.pbs.org/wgbh/pages/frontline/waco


Report and Recommendations Concerning the Handling of Incidents Such As the Branch Davidian Standoff in Waco Texas

Panelist Alan A. Stone, M.D.
Touroff-Glueck Professor of Psychiatry and Law
Faculty of Law and Faculty of Medicine
Harvard University

Submitted November 10, 1993

2. Was tactical strategy appropriate with so many children in the compound?

The pressure strategy as we now know it consisted of shutting off the compound's electricity, putting search lights on the compound all night, playing constant loud noise (including Tibetan prayer chants, the screaming sounds of rabbits being slaughtered, etc.) ....

... The constant stress overload is intended to lead to sleep-deprivation and psychological disorientation. In predisposed individuals the combination of physiological disruption and psychological stress can also lead to mood disturbances, transient hallucinations and paranoid ideation. If the constant noise exceeds 105 decibels, it can produce nerve deafness in children as well as in adults. ...

... When asked, the Justice Department was unaware whether the FBI had even questioned whether these intentional stresses would be particularly harmful to the many infants and children in the compound. Apparently, no one asked whether such deleterious measures were appropriate, either as a matter of law enforcement ethics or as a matter of morality, when innocent children were involved....



The hypocrisy is breathtaking.
4.19.2009 6:49pm
My Middle Name Is Ralph:

rosetta's stones: I'm not sure I do, I'm still thinking about the other day's actions. For all his past rhetoric, Obama sure didn't take a strong position on this [slapping around detainees], would be one quick take. Another would be that no prosecutions appear imminent, and that might not necessarily constitute "sanction", but it is directionally significant for sure. A 3rd snap would be that Holder/Obama seem to have reserved the ability to employ whatever coercive interrogation methods they deem necessary.


Obama restriced all interrogatinos to the methods set forth in the Army Field Manual. The Army Field Manual does not permit slapping prisoners around. I think it's safe to say from this [efectively ordering that prisoners are not to be slapped around] that Obama did not sanction slapping prisoners around. No particularly smart lawyer needed to answer this one.

Now, Obama also ordered a review of interrogation procedures to see whether the intelligence services should be limited to the methods described in the Army Field Manual. It may be fair to say that he is willing to contemplate slapping prisoners around and may sanction it in the future.
4.19.2009 6:52pm
Oren:

It's analogous to the rule courts use when applying the "void for vagueness" doctrine. If the language is sufficiently broad so that you have to ask whether your conduct comes under its purview, then you shouldn't do it.

What you have described is exactly the opposite of the way the law works in the USA. In actuality, one cannot be prosecuted for acts that the legislature did not give clear notice were criminal:

the terms of a penal statute… must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.


I fear for my safety if our legal system ever turns around to your point of view -- that the citizen must be sure that his acts are innocent instead of the Congress clear on what is criminal.

As an aside, you've gone back to normative language ("shouldn't do it") instead of factual language ("it is a violation of statute"). Once again, I'm not asking what virtuous policy you would implement, I'm asking what are the limits set by Congress.


What the statute forbids is "severe physical or mental pain or suffering."

And so, can you square that general command with the requirement that the statute is explicit enough to inform us what it does and does not criminalize. We can go round and round as many times as you want, we can cite examples (waterboarding, wall-slamming: criminal; itchy blanket, single-ply toilet paper: not criminal) but what eludes me is an actual way to make the determination other than on an ad-hoc basis.


The fundamental issue remains that we should not even be thinking in terms of "how do we make these people so miserable that they'll talk?" That is asking the wrong question, the answer to which will always end up in torture.

That's a normative statement about policy. I happen to support it as a matter of policy, but The People elected George Bush and his question was "how miserable can I make these people while complying with 18USC2340" -- that is, what is the most I can legally do (which is, of course, by definition a legal policy choice).

Now, I think the answer he got from the OLC about what complies with 18USC2340 was wrong, at least as far as wateboarding and wall-slamming goes (I have my doubts about the other methods, too, but those are the easy ones), but if I were in Bybee's position and someone asked me what complies with 18USC2340, I really wouldn't know how to approach the problem in any rigorous way that isn't completely ad-hoc and subjective.

In short, I know his construction is wrong but I'm very upset that I can't come up with a correct construction. You guys seem to be so sure that it's a trivial task but don't seem to have one either (aside from "not Bybee's way", which I already knew).
4.19.2009 6:54pm
mattski:
BTW, John Moore asked me for evidence of a slippery slope towards excessive use of torture.

I would say 183 times is good evidence.

I also want to say to Oren, you may not be trolling, but you are certainly displaying a bias in favor of abusing prisoners. If not, you wouldn't be so eager to find what is on the other side of the line.
4.19.2009 6:58pm
mattski:
BTW, John Moore asked me for evidence of a slippery slope towards excessive use of torture.

I would say 183 times is good evidence.

I also want to say to Oren, you may not be trolling, but you are certainly displaying a bias in favor of abusing prisoners. If not, you wouldn't be so eager to find what is on the other side of the line.
4.19.2009 6:58pm
Mahan Atma (mail):
"The hypocrisy is breathtaking."


As a liberal, I was appalled and deeply offended by what the government did at Waco. I thought it was criminal, and wish those responsible had been prosecuted -- and I said so at the time. It was also one of the reasons I never liked Clinton and detested Janet Reno (and I never voted for Clinton or supported him in anyway).

So no hypocrisy here. How about you?
4.19.2009 6:59pm
Mahan Atma (mail):
"What you have described is exactly the opposite of the way the law works in the USA. In actuality, one cannot be prosecuted for acts that the legislature did not give clear notice were criminal."


This is hilarious!!

Tell me, have you ever practiced criminal defense?
4.19.2009 7:00pm
My Middle Name Is Ralph:

Tom Perkins (mail):
@ jukeboxgrad who wrote, and lied by implication when he did it:


They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water


There is nothing described here to prevent water from entering the lungs, this clearly differentiates it from American practice WRT to captured AQ personnel.


No. It doesn't. You should re-read the memos. They talk about the mouth and nasal cavity filling up with water. They talk about how detainees tried to use countermeasures of drinking the water and how to defeat these countermeasures. There is no description of using plastic wrap over the mouth and nose like some torture apologists hypothosized before the memos came out. There is a description of pouring large amounts of water onto a cloth covering the detainee's mouth and nose. Ask yourself, how is it possible to soak a cloth with water and not have any water be able to seep through to the detainee's mouth and nose below when he is desparately attempting to breath in? Barring some sort of barrier (and the memos never mention this) it defies basic common sense. There was nothing to prevent water from entering the lungs of detainees other than their ability to hold their breath. Your notion that there is some significant difference between American water torture and Khmer Rouge or Japanese water torture seems to only be in your head.
4.19.2009 7:04pm
John Moore (www):

No one arguing in good faith needs to wonder whether making people feel like they're drowning is "severe physical suffering."


You would be wrong, obviously. Of course, my position, unlike Oren's, is what the law *should* be, and I believe the law should allow waterboarding - regardless of how you choose to categorize that.

If it's in violation of international law, change the stupid law. If some country attempts to prosecute our officials for doing it, use as much of our power as is necessary to stop them, since unlike some here, I believe in effectively protecting our citizens.

A smart interrogator -- and are we to believe that the United States cannot produce smart interrogators? -- can do much more than a torturer ever could.

Such amazing assurance. How about a smart torturer, eh?
4.19.2009 7:06pm
My Middle Name Is Ralph:

Oren: I'm not disputing your result in the obvious case, I'm asking for a methodology and you keep giving me results.


I don't think anoyone can ever give a precise methodology or rule that answers the question for all cases. This is a common facet of many laws. For example, the negligence standard is failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Just like in other areas of the law, the definition of torture gets refined by case law, but that will never answer every question precisely. Ultimately, for close cases, torture is what the factfinder decides is torture. The obvious solution if you do not want to not be criminaly liable for torture is to avoid going right up to the line.
4.19.2009 7:12pm
TA:


As a liberal, I was appalled and deeply offended by what the government did at Waco. I thought it was criminal, and wish those responsible had been prosecuted --


You might talk to other liberals, who apparently aren't as appalled as you.


So no hypocrisy here. How about you?


What forms of interrogation are acceptable in obtaining information which will prevent a terrorist atrocity? (Yes, this is the issue). I don't claim any expertise. Our elected officials have to make that judgment. I just hope we can agree that if something is unacceptable for members of a terrorist organization, it's also unacceptable for children.
4.19.2009 7:13pm
Mahan Atma (mail):
"What forms of interrogation are acceptable in obtaining information which will prevent a terrorist atrocity? "


Please tell me what terrorist atrocity was prevented by waterboarding KSM 183 times.
4.19.2009 7:15pm
Mahan Atma (mail):
"And so, can you square that general command with the requirement that the statute is explicit enough to inform us what it does and does not criminalize. We can go round and round as many times as you want, we can cite examples (waterboarding, wall-slamming: criminal; itchy blanket, single-ply toilet paper: not criminal) but what eludes me is an actual way to make the determination other than on an ad-hoc basis."


So are you arguing that the statute is void for vagueness? Good luck with that.

In the real world, courts routinely uphold far, far more vague statutes. For example, 18 U.S.C. 1503 (obstruction) requires that the defendant act "corruptly". Unfortunately, that word isn't defined anywhere in the statute. So tell me, what does "corruptly" mean?

People get convicted every day under statutes like this. It's nice of you to notice the problem now, and I'm sure you'll be joining me in my efforts to reform the criminal justice system, right?
4.19.2009 7:18pm
Oren:

I also want to say to Oren, you may not be trolling, but you are certainly displaying a bias in favor of abusing prisoners. If not, you wouldn't be so eager to find what is on the other side of the line.

I'm eager to get a method for placing the line (we don't have to actually apply the method, just having an objective process would be sufficient) because otherwise it's hard for me to condemn Bybee's method, which I know is wrong. It's not enough to have a gut feeling that Bybee's method is wrong (certain as that is), I want to have something right to replace it with.

Moreover, perhaps under a reasoned analysis we conclude that "severe physical or mental pain" is too narrow a category to define what we colloquially refer to as torture? That would be a valuable conclusion because it would indicate that Congress ought to revise the statute to include something a bit broader.

Alternatively, we could conclude that SPOMP is too vague to entrust future administrations and that Congress should instead create some other regulatory framework (supervision by a judge?) is necessary.

I can't even reach these policy questions because I can't make heads or tails out of the law we have now (except, of course, for the conclusion that Bybee's version is manifestly incorrect).


Tell me, have you ever practiced criminal defense?

Yes, but as defendant, not counsel.

Most of the most-commonly-prosecuted crimes seem to me quite straightforward: don't posses a gun, don't posses drugs, drive less than the posted limit, don't rob the liquor store. Is there some class of commonly-cited law that you feel gives insufficient notice (DUI perhaps?).
4.19.2009 7:18pm
TA:

Please tell me what terrorist atrocity was prevented by waterboarding KSM 183 times.


The very purpose of KSM's organization is to commit terrorist atrocities.
4.19.2009 7:19pm
Oren:

So are you arguing that the statute is void for vagueness? Good luck with that.

No, absolutely not. I was criticizing your attempt to reverse the burden of notice -- to say that anything that's doubtfully legal under 18USC2340 ought not to be done.

You wrote:

If the language is sufficiently broad so that you have to ask whether your conduct comes under its purview, then you shouldn't do it.


I just don't think that's the proper standard of review. The Executive is entitled to do anything not forbidden by Congress. Anything in that category is a legitimate policy choice, even if it's a bad idea.
4.19.2009 7:22pm
My Middle Name Is Ralph:

Oren:


I really wish people would make at least a minimal effort to understand what the law is before they speak out of ignorance.


And I really wish people would actually attempt to provide analysis on the statute instead of conclusory remarks. "Severe physical or mental pain" does not mean "anything I don't approve of".


Oren, not sure this post was directed to me (even though the initial block quote is mine, the quote in your portion of the post was not written by me). If it was directed at me, I think you will not be able to find anything by me even close to the conclusory statement you deride.
4.19.2009 7:22pm
Mahan Atma (mail):
"Most of the most-commonly-prosecuted crimes seem to me quite straightforward."


Well I don't know why you'd limit the discussion to "commonly-prosecuted crimes" (torture certain isn't), but let's start with this one, since you brought up possession of a gun:

What does it mean to possess a gun "in furtherance" of a narcotics crime?

"Is there some class of commonly-cited law that you feel gives insufficient notice?"


That's pretty funny. Let's just say I don't have time to make a list that long.
4.19.2009 7:24pm
Oren:
Moreover, I would say that the mode of analysis that one uses to determine whether the conduct in question is criminalized by 2340 is more important that conclusions about particular acts X or Y because it determine not just what a future executive can or cannot do, but how one even approaches that question.

That is, the mode of analysis ought to be decided a priori so that we don't get the sort of post-hoc rationalizations of the Bush years. Instead, you've repudiated his result-oriented analysis with a result-oriented analysis of your own that comes to opposite results but still doesn't have any analytic heft.
4.19.2009 7:26pm
My Middle Name Is Ralph:

John Moore (www):


So Congress wrote a statute that forbids Y, and you decided that it applies also to things that are similar to Y?


And even beyond that... congressional leaders also were aware of what was being done, and yet still the assertion that this was forbidden by congress.


Some review of basic civics seems to be in order for those confused. Congress passes law. There's a whole procedure for it spelled out in the Constitution. Those laws are not repealed whenever congressional leaders are made aware of violations of the law. To repeal a law, Congress needs to go through the whole procedure again. It's in the Constitution.
4.19.2009 7:29pm
Mahan Atma (mail):
"I just don't think that's the proper standard of review."


Well guess what, it's the standard that courts in the real world apply all the time. I practice criminal defense for a living, so I know what I'm talking about.

By the way, what is your point exactly? If you're pointing out that there's some ambiguity in the statute, I agree. So what? It's pretty much impossible to construct statutes that are free of any ambiguity.

Furthermore, even when the line is fuzzy, there is plenty of conduct that falls clearly on the criminal side. You've already agreed that hanging someone by the wrists for two weeks is torture, right?
4.19.2009 7:30pm
Oren:

What does it mean to possess a gun "in furtherance" of a narcotics crime?

To possess a gun under conditions such that it might be of utility in the temporal and spatial vicinity of a crime. I think that juries know the difference between going to a drug buy with shotguns in your trunk and having a hunting rifle in the attic while smoking a doobie on the back porch.
4.19.2009 7:31pm
Mahan Atma (mail):
"Instead, you've repudiated his result-oriented analysis with a result-oriented analysis of your own that comes to opposite results but still doesn't have any analytic heft."


There's nothing "result-oriented" about my analysis. So the line is somewhat fuzzy - so what? The conduct described clearly falls on the criminal side of it, because doing those things (like hanging someone naked by their wrists for weeks at a time) clearly causes severe physical and mental pain and suffering.
4.19.2009 7:33pm
Mahan Atma (mail):
"To possess a gun under conditions such that it might be of utility in the temporal and spatial vicinity of a crime."


Oh, OK. So exactly how close by does the gun have to be: 2 feet, 5 feet, 20 feet, 1 mile?

Come on...
4.19.2009 7:35pm
My Middle Name Is Ralph:

John Moore (www):
It is likely that the statute was written to be vague so that it could be used for political purposes to justify more than some supporters intended, when one group is in power, and to persecute those who did what others intended, when the other group was in power.


This is just historically incorrect. The statutory definition of torture basically tracks the definition negotiated in the Convention Against Torture treaty. So, it's silly to blame Congress. As to why it is not more specific, the treaty drafters believed that any attempt to make a precise definition for torture would simply allow inventive lawyers and torturers to come up with torture methods that were not prohibited by the letter of the law. Thus, the treaty has a broad standard instead of a bright line rule. This is a common practice in writing many laws, including criminal laws. If you think the way the treaty was drafted was a sham, I would challenge you to write a definition of torture that is both (1) more specific and (2) actually covers everything that would generally be considered "torture."
4.19.2009 7:37pm
Oren:


By the way, what is your point exactly? If you're pointing out that there's some ambiguity in the statute, I agree. So what? It's pretty much impossible to construct statutes that are free of any ambiguity.

Furthermore, even when the line is fuzzy, there is plenty of conduct that falls clearly on the criminal side. You've already agreed that hanging someone by the wrists for two weeks is torture, right?


Absolutely is.

My point is that if we can't even come up with a reasonable framework in which to make these decisions, then all we have are subjective post-hoc judgments -- the very thing we all derided about the Yoo/Bybee team. I don't need a statute without ambiguity, I need a construction of the statute that has some analytic weight.

For instance, self-defense statutes are pretty ambiguous on their face, and yet I understand the "reasonable person" construction -- "whether a reasonable person in that situation would fear for his life or limb" is concrete enough that I can apply it to an actual set of facts.

Here, I don't feel like we have articulated a standard for judging what constitutes SPOMP, let alone something I can apply to an actual set of facts to determine whether or not the statute applies. I'm at a loss on how to proceed.
4.19.2009 7:37pm
Andrew J. Lazarus (mail):
Here is a suggestion, Oren. Why don't we figure that any practice so unpleasant that most (not all) victims will confess to pretty much anything to make it stop counts as torture? Why don't we also figure that any practice that our own soldiers or soldiers from friendly countries described as severe physical pain is also torture under the ICAT? And, third, why don't we assume that any practice our own government says is torture when done by others is also torture when done by us?

I will agree that some of the practices that were authorized may not rise to the level of torture, especially if occasional or not extremely forceful. This is, however, not very useful as a defense of the memos; such a defense needs to justify every single one of the practices and all allowed combinations as not being torture.

Since so many people faint from Nazi comparisons, it seems to me that the conduct permitted by the memos is in many ways much worse than what the North Vietnamese imposed on our POWs. A little better on the broken bones from beatings, much worse on sleep deprivation, forced standing, etc. Yet when applied to Sen. McCain, words like "North Vietnamese torture" are used all the time.

Is it really so difficult to believe that the distinctions being drawn are locative? That is, that the conclusion is based on where (more specifically, by whom) the practice is carried out?

The alternative, apparently, is to hire more John Moores, who function as a sort of pre-cog to determine oracularly that waterboarding is not torture but sodomy is based on the "obviousness" of it all. I wonder where a forced enema would fit in?
4.19.2009 7:44pm
My Middle Name Is Ralph:

Andrew J. Lazarus (mail):
Indeed, I suspect that if our interrogators had already sodomized detainees, Bybee and Yoo would have found an argument for its legalization.


Indeed, not only would they have found an argument for its legalization, but they did find an argument for its legalization. The exact same rationale that they use to find waterboarding not torture is also applicable to sodomy, assuming it is done in a manner that does not cause severe physical pain.

I made this challenge to those who do not believe water boarding to be torture in another thread but none took me up on it, so I'll repeat it here:

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.

The point of this exercise is that if you cannot make a good argument that the above examples are in fact torture under the legal framework proposed by Bybee, then don't you have to be extremely skeptical whether this framework is correct?
4.19.2009 7:48pm
Oren:

If you think the way the treaty was drafted was a sham, I would challenge you to write a definition of torture that is both (1) more specific and (2) actually covers everything that would generally be considered "torture."

First draft:

... “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 upon another person within his custody or physical control;


I think the implication here is that Congress specifically intended to permit the application of non-severe pain and suffering, otherwise they would not have used those modifiers (standard canon of construction: every word means something).
4.19.2009 7:49pm
Oren:

Here [are] suggestion[s], Oren. Why don't we figure that any practice so unpleasant that most (not all) victims will confess to pretty much anything to make it stop counts as torture? Why don't we also figure that any practice that our own soldiers or soldiers from friendly countries described as severe physical pain is also torture under the ICAT? And, third, why don't we assume that any practice our own government says is torture when done by others is also torture when done by us?

I accept all three of those suggestions. Some difficulties arise:

(1) I don't know if a new method will causes detainees to confess to anything in advance of trying it, so this is no help in analyzing novel interrogation techniques.

(2) In some cases, a particular method could be torture for some but not others. If our soldiers were put in a box with spiders and report that it's not torture, does that make it OK to do on a detainee that we know is arachnophobic?

(3) What constitutes "our own government"? I'll accept the official war-crimes prosecutions but does each administration get to add to the list? Do they get to remove?

Your suggestions are certainly sound but they aren't sufficient to answer the question.


The alternative, apparently, is to hire more John Moores, who function as a sort of pre-cog to determine oracularly that waterboarding is not torture but sodomy is based on the "obviousness" of it all.

I don't like that any more than I like hiring C. Gittings that thinks that imprisoning a detainee counts as assault and small cells count as torture.
4.19.2009 7:57pm
Andrew J. Lazarus (mail):
Oren, there's some history to the strikeouts you have made above. The issue of specifically, as it was originally intended, was (as I understand it) to make legal inflicting such a level of pain if needed to restrain a belligerent prisoner, stop him in the act of escape, etc. As interpreted by Yoo, it allowed almost any non-lethal act as long as the questioner was thinking about getting intelligence and not specifically about inflicting pain for its own sake. Only rabid fans of coercive investigation found any merit in this endorsement of casuitry.

I agree with you about the meaning and purpose of 'severe'. Any number of testimonials make clear that the pain inflicted by our techniques is 'severe' in any common meaning of the word. Have you read Menachem Begin on sleep deprivation?
In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep...Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it.
There are all manner of modifiers like 'severe' in routine use in the law (e.g., "serious bodily harm" as a requirement for aggravated assault).
4.19.2009 8:05pm
Oren:

The issue of specifically, as it was originally intended, was (as I understand it) to make legal inflicting such a level of pain if needed to restrain a belligerent prisoner, stop him in the act of escape, etc.

Isn't that covered by the "incident to lawful sanctions" exception?

Thanks for the history lesson though. That's something to ponder!
4.19.2009 8:21pm
My Middle Name Is Ralph:

Oren:


If you think the way the treaty was drafted was a sham, I would challenge you to write a definition of torture that is both (1) more specific and (2) actually covers everything that would generally be considered "torture.


First draft:

... “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 upon another person within his custody or physical control;


Well done and I agree you satisfied both one and two above. Of course, you have now vastly expanded the definition of torture to cover all sorts of things that we do not want covered. The fault lies in my challenge, however. I should have included a third requirement: (3) does not cover that which would generally not be considered "torture." That's a better statement of what the drafters of the torture law had to do--make the law as clear as possible while also outlawing that which should be outlawed and not outlawing that which should not be outlawed. There's an inevitable tension between drafting a precise rule and covering every imaginable scenario to which the rule might apply.
4.19.2009 8:26pm
Anderson (mail):
Via Sullivan, I see one SERE instructor whose opinion CIA evidently did not care to solicit.

Despite all the gyrations - the ducking, dodging and hiding from the facts - there is no way to say that these people were not authorizing torture. Worse yet, they seem to have not cared a whit that these techniques came from the actual manuals of communist, fascist and totalitarian torturers. It is now clear how clearly - how coldly - Bush's lawyers could authorize individual techniques from past torture chambers, claim they came from the safe SERE program, and not even wet their beds at night. That many U.S. service members over the years have died as a result of these same techniques was never considered.

* * *

If it were aimed at a U.S. Pilot, soldier or diplomat, I have no doubt all those defending the Bush Administration now would label these tactics torture. At SERE, I learned and taught that breaking the prisoner for compliance and instilling "learned helplessness" was our enemies' terminal learning objective.

Worst of all was that an agency advising the Justice Department, the Joint Personnel Recovery Agency, knew that these coercive techniques would not work if captives devoutly trusted in their God and kept faith with each other. Yet those two characteristics are pre-qualifications for being allowed into al-Qaeda. Other non-coercive methods - the central focus of which is humanely deprogramming them of their religious ideological brainwashing - are now turning al-Qaeda members in Indonesia, Iraq and Saudi Arabia. But they were never considered. Perhaps they were not macho enough.


He argues that prosecutions are essential to negating the propaganda victory our torturers have handed al-Qaeda. I'm not quite sure about that - what if they're acquitted? - but it's a respectable argument.
4.19.2009 8:30pm
Oren:

Of course, you have now vastly expanded the definition of torture to cover all sorts of things that we do not want covered.

Such as?
4.19.2009 8:32pm
John Moore (www):
It is interesting that waterboarding is "clearly" torture to most here, simulated wall slamzming is torture to Oren, while apparently stressful positions, held repeatedly for long periods of time is not.

What is it about waterboarding that makes it special?

Is the feeling of suffocation more "painful" than stress positions?

Do we count the totality of the pain or the instantaneous amplitude of the pain?

Anything short of the extremely passive approaches to interrogation is extremely unpleasant, mentally stressful, and nothing any of us would want to endure.

So what exactly (let's talk from both a moral and a legal standpoint) about waterboarding puts it clearly across the line?
4.19.2009 8:38pm
Andrew J. Lazarus (mail):
Oren, IANAL. (I am a mathematician by training.) I believe the "lawful sanctions" refers to the overall deprivation of liberty. Mere incarceration, much less non-torture physical methods, would be assault if not authorized. One could not transmutate torture into non-torture by passing a law making it a permissible sanction, any more than by a bogus interpretation.

BTW, the article by a SERE instructor that Anderson has linked just above, besides being perfectly clear about the goose/gander issue—tactics like waterboarding would 100 percent be labeled torture if inflicted on Americans—corroborates Moore's claim that there are consistent fatalities in SERE training. I think jukeboxgrad was way off base on that.
4.19.2009 8:39pm
John Moore (www):

Those laws are not repealed whenever congressional leaders are made aware of violations of the law.


The issue is whether the actions in question cross the line established by congress. Does not the opinion of congressional leaders provide some information about how to interpret this obviously unclear situation?
4.19.2009 8:41pm
Mahan Atma (mail):
"My point is that if we can't even come up with a reasonable framework in which to make these decisions, then all we have are subjective post-hoc judgments -- the very thing we all derided about the Yoo/Bybee team."


No, I think the main problem people have with the Yoo/Bybee analysis is that it wasn't done in good faith. They deliberately reached a construction of the laws that would allow the executive branch to do what it wanted.

For that matter, they put forth statutory constructions that weren't even reasonable from any objective standpoint.
4.19.2009 8:43pm
rosetta's stones:
MMNI Ralph,

Sounds like you're agreeing with my initial quick assessment, that Holder and Obama are reserving coercive methods of interrogation. And that Stephanapoulus interview seems to imply they're suspending one method, presumably waterboarding. What about the rest? Seems like they're still in play? Obama seems to be conceding that all this was/is merely a policy decision, no?
4.19.2009 8:45pm
Anderson (mail):
while apparently stressful positions, held repeatedly for long periods of time is not

Whoever said that? The stoika was a favorite method of Soviet torturers.

The KUBARK manual quotes Laurence Hinkle's study:

"When the individual is told to stand at attention for long periods, an intervening factor is introduced. The immediate source of pain is not the interrogator but the victim himself. The motivational strength of the individual is likely to exhaust itself in this internal encounter.... As long as the subject remains standing, he is attributing to his captor the power to do something worse to him, but there is actually no showdown of the ability of the interrogator to do so."

Darius Rejali, again citing Hinkle:

Two experts commissioned by the CIA in 1956, Harold Wolff and Lawrence Hinkle, described the effects of forced standing: The ankles and feet swell to twice their size within 24 hours, and moving becomes agonizing. Large blisters develop. The heart rate increases, and some people faint. The kidneys eventually shut down.

Rejali:

By the 1920s, forced standing was a routine police torture in America. In 1931, the National Commission on Lawless Enforcement of the Law found numerous American police departments using forced standing to coerce confessions. In the 1930s, Joseph Stalin's NKVD used forced standing to coerce seemingly voluntary confessions for show trials.

The British used forced standing as early as 1937-1939 on Arab and Jewish prisoners in Mandatory Palestine. The Gestapo routinely used it as a punishment in concentration camps, sometimes creating tiny, narrow cells where prisoners had to stand all night.


Sounds like torture to me. Which is *why* it's part of the SERE curriculum.
4.19.2009 8:56pm
My Middle Name Is Ralph:

(link)Oren:

Of course, you have now vastly expanded the definition of torture to cover all sorts of things that we do not want covered.

Such as?


Flicking a detainee in the ass with a towel.
4.19.2009 9:03pm
rosetta's stones:
Lazarus,

If waterboarding is "torture", and that SERE instructor participated in waterboarding as apparently he's acknowledging in that article, shouldn't we prosecute him as well, and anybody else who practiced torture, whether on terrorists or US service personnel?
4.19.2009 9:15pm
My Middle Name Is Ralph:

John Moore (www):


Those laws are not repealed whenever congressional leaders are made aware of violations of the law.


The issue is whether the actions in question cross the line established by congress. Does not the opinion of congressional leaders provide some information about how to interpret this obviously unclear situation?


No. There is one school of thought that legislative history such as the House and Senate report on a law, testimony before committees, member's statements, etc. are relevant in determining the meaning of a law. There is another school of thought led by Scalia that a statute should be interpreted based only on the text of the statute and how that text would be understood by the public. After the fact statements of what a law means by the people who passed them are usually given little to no credence by all. No legal scholar that I'm aware of says that the non-objections of a few congressional leaders to an executive briefing, most (all?) of which were not even part of the Congress that passed the law about 20 years previously, should matter in interpreting a statute.
4.19.2009 9:17pm
My Middle Name Is Ralph:

rosetta's stones:
MMNI Ralph,

Sounds like you're agreeing with my initial quick assessment, that Holder and Obama are reserving coercive methods of interrogation. And that Stephanapoulus interview seems to imply they're suspending one method, presumably waterboarding. What about the rest? Seems like they're still in play? Obama seems to be conceding that all this was/is merely a policy decision, no?


I think Obama and Holder are genuinely studying both the legality and utility of allowing the intelligence services to use at least some of the coercive methods described in the memo, with the definite exception of waterboarding. By stating categorically that waterboarding is torture, they have not left themselves any wiggle room to bring it back, IMHO. I don't think that means they are reserving the other methods or that those methods are currently in play. For the time being, it's clear that those methods are also prohibited. I don't think the fact that Obama is going to conduct a study of at least some of the coercive methods means that their use was necessarily a policy decision. The review may conclude that particular methods always or as used were torture or violated other laws besides the Federal Torture Statute. The review may conclude that particular methods were not illegal, but still decide as a matter of policy not to use them. The review may conclude that certain methods are not illegal and should be used in certain circumstances. I wouldn't concluded too much about Obama conducting a review until we know what the outcome of the review is.
4.19.2009 9:36pm
My Middle Name Is Ralph:

rosetta's stones:
Lazarus,

If waterboarding is "torture", and that SERE instructor participated in waterboarding as apparently he's acknowledging in that article, shouldn't we prosecute him as well, and anybody else who practiced torture, whether on terrorists or US service personnel?


Lots of reasons why it's not illegal torture that jump to mind:

1. The trainee consented to it and can stop it whenever he chooses.

2. The trainee is not a prisoner of the SERE instructor as I believe is required by the torture statute.

3. I'm pretty sure the torture statute is also limited to torture for certain purposes such as collecting intelligence, punishment, and sadism; training is not one of the prohibited purposes.

4. Hard to argue the trainee is in fear of imminent death, unlike the detainee, because he knows the waterboarding is for training purposes and that the SERE instructor will do his best not to physically injure or kill him.

5. This may be more disputed, but it is my sense that the intensity and duration of the waterboarding of detainees is much greater than that of trainees. Certainly, the frequency is much greater. Almost certainly, the initial physical and mental condition of the detainee is much more fragile.
4.19.2009 10:00pm
MarkField (mail):

Mark, do have children? If you do, can you honestly tell me that if molesting some other child were somehow the only way to save your child's life, that you would commence planning for your baby's funeral services?


Yes, I have children. I truly don't know what I'd do in the situation you describe, but here's the thing: I don't expect anyone to repeal the laws against child molestation just because of this hypothetical. And I don't expect someone to come along and later say that what I did was NOT child molestation. What I expect to happen is that if I did commit so horrible an act, the jury would consider the extenuating circumstances or the president would pardon me.

If those extenuating circumstances exist in these cases, that's what should happen with the torturers and those who authorized them.
4.19.2009 10:30pm
C. Gittings (mail) (www):
"...can you honestly tell me that if molesting some other child were somehow the only way to save your child's life..."

I can honestly state that anyone who thought raping one child was the only way to save his own child's life was certifiably insane. And I'm damned tempted to say the same thing for anyone one who would propose such an absurd hypo.

Even if I were to assume the motivation was someone extorting the conduct at gunpoint by threatening to kill you, your wife, and your child if you didn't commit the deed, I can't imagine why anyone who would threaten such a crime to extort such an act in the first place, or why anyone who was subjected to such extortion would suppose cooperating would get them anything but a bullet in the back of their head once the "fun" was over...

Or for that matter, that such an absurdly contrived hypo had any conceivable implication in this discussion.

Or equally, that it would accuraqte to state that some thought raping a child would save a life when he was in fact merely responding to a death threat in a circumstance of immediate necessity, which is of course a possible defense to any criminal charge -- not a reason to nullify a criminal statute.
4.20.2009 12:07am
C. Gittings (mail) (www):
Oren,

"I don't like that any more than I like hiring C. Gittings that thinks that imprisoning a detainee counts as assault and small cells count as torture."

When did I say this?

I try very hard to be accurate, and really get tired of the endless misrepresentations you people toss around whether by sloppiness or intent.

Imprisoning someone unlawfully would most certainly constitute assault; doing so with valid legal authority most certainly would not.

As for the small cell, that depends on the exact size and configuration, but the descriptions in the Bybee memo certainly fit.

There isn't any mystery or difficulty about where the line is: it is in the INTENT to COERCE conduct from the victim against their will. Not by deception, or by persuasion, but but the deliberate infliction of SUFFERING.

You could try looking the word up:

torture, n. The infliction of intense pain to punish, to extract a confession or information, or to obtain sadistic pleasure. -- torture, v.

7 Black's Law Dictionary 1498


Hoiw much pain would be intense enough to constitute the torture is completely obvious: however much the perpetrator thought was sufficient t5o do the job. As with all crimes, the offense derives from the underlying intent or neglect, adn you can claim an innocent mistake when you were deliberately trig to extract informatioin from a helpless prisoner by force.

I know you people can read, and that not a single one of you can fail admit that what I've just said is true if you have shred of functional honesty and intelligence.

QED either way -- take your pick.

Or as we chess players say: check-mate.
4.20.2009 12:41am
C. Gittings (mail) (www):
s/b you cannot claim an innocent mistake...
4.20.2009 12:44am
jukeboxgrad (mail):
sg:

If you don't have proof, merely a "hunch", then what should the FBI have done?


Many actions in both law enforcement and counterterrorism are based on nothing more than "merely a 'hunch.' " Responsible public safety officials don't sit on their hands because all they have is "merely a 'hunch.' " There are lots of things the FBI and other agencies could have done (like beef up airport and airplane security). But this was a low priority, because Bush was repeatedly spreading the message that the proper way to fight terrorism was SDI. Why should mid-level bureaucrats place priority on efforts that the boss says shouldn't be a priority?

9/11 didn't happen because of insufficient torture, or insufficient information. 9/11 happened because leadership had their focus elsewhere. The rest of the bureaucracy is always going to tend to focus on whatever top management is focused on.

bear in mind that the plots (claimed to have been) foiled post-9/11 (Brooklyn Bridge/dirty bomb/etc) sound as ludicrous as destroying WTC sounded on 9/10.


Wrong. Part of the post-9/11 mythology is to claim that no one anticipated that anyone would use an airplane as a missile. That's false.

I find it perfectly valid to say that you want the government to have more than a "hunch" before it starts surveilling/detaining/interrogating someone. But don't then turn around and say the government was incompetent for not foiling some plot that some agent merely had a "hunch" about.


You're describing a false choice. The things you're comparing are not comparable. There's nothing unlawful about beefing up airline security in response to nothing more than a hunch. But, depending on the circumstances, it can indeed be unlawful to be "surveilling/detaining/interrogating someone" in response to nothing more than a hunch. Protecting ourselves did not require breaking the law, or violating anyone's rights, or torturing anyone. It just required having smarter priorities.

I don't see malice, only people honestly (in general: Abu Ghraib is clearly an exception) trying to balance the two.


Abu Ghraib didn't happen in a vacuum. It happened as a direct result of policy decisions made at the top. And the aftermath of Abu Ghraib was to punish the little guy while letting the real culprits walk. Taguba is the two-star general who led the first investigation into what happened at Abu Ghraib. He said this:

I believe, even today, that those civilian and military leaders responsible should be held accountable.


And there's this:

senior defense officials were involved in directing abusive interrogation policies


Those "abusive interrogation policies" started at the top.

I'm sure that war crimes have occurred (as they have in every war) but given facts to date, they don't appear to have been a matter of policy.


Taguba disagrees with you. You should explain what you know that he doesn't.

what's known today support my belief (or perhaps hope?) that the government was (and is) operating in good faith.


I guess it depends how you define "good faith." Here's one definition: 'I sincerely believe that I have to commit war crimes to keep my country safe.' Trouble is, that's not a defense for war crimes (although I imagine it's an argument some jurors might find appealing).

If the procedures do not cause long-term physical harm


I can attach electrodes to your genitals and deliver a series of electric shocks that will "not cause long-term physical harm." So what? Does that mean you haven't been tortured? Any time you introduce the concept of "physical harm" into a discussion of torture, you show that you don't understand the meaning of the word torture.

if our POWs came home saying "that was just like SERE school", I wouldn't be outraged


The CIA admitted that what they did to prisoners went beyond what we do at SERE. So this comparison is not relevant. And aside from that, by definition it could not be "just like SERE school." Because at SERE, they are volunteers who are not being held by an enemy, and they have the power to leave when they choose to.

intelligence and not retribution is the motivating force, great concern is show for the prisoner's long-term physical and mental well-being, and strict limits are set


But the CIA has admitted that those limits were not respected.

ask Marianne Pearl if she thinks waterboarding is an acceptable way to treat of prisoners


There are many different ways of saying 'we're not as bad as them.' But when you resort to doing so, you are demonstrating that your standards are too low.

==================
moore:

The communists had predefined results that they intended to get, and they tortured until the specific confession was produced.


You are painfully oblivious to the fact that this is a perfect description of what we did with al-Libi and with KSM.

Are you suggesting these are the reasons the US used "torture" on three, and only three ranking Al Qaeda members?


We tortured more than three people. For example, according to Crawford, we tortured Qahtani. And she is not claiming that he was waterboarded.

I think the claim you're trying to make is that we "only" waterboarded three people. The problem with that claim is that it requires us to trust the CIA. Keep in mind they have already lied to us about this. On 3/12/08, DNI McConnell said we only used waterboarding "three times." We now know that this claim is off by two orders of magnitude: the actual number is close to 300 (at least). So why should we trust the CIA when it tells us that "only" three people were waterboarded?

Stalin tortured his own citizens as a matter of maintaining a terror state. Pol Pot committed all sorts of atrocities, again against his own citizens, as part of an insane Maoist state. In both cases, their actions went far beyond what was authorized in those memos.


I wonder if you're claiming that Pol Pot's waterboarding techniques "went far beyond" ours. Are you?

When was the last waterboarding?


We don't know, because the only source for that information is the CIA, and the CIA is not a reliable source.

Probably because sodomizing the prisoners was clearly out of bounds, Bybee didn't need to address it in his memos.


Why should it be clearly out of bounds? Why is it more offensive to you than waterboarding? (Anderson asked this question in a very clear way here. And Andrew here. And Ralph here. Where's your answer?)

congressional leaders also were aware of what was being done, and yet still the assertion that this was forbidden by congress.


If Congress passes a law, and then some member of Congress condones the violation of that law, it doesn't render the law invalid. Congress has the power to change laws, not violate them (I see Ralph also explained this). So to the extent that "congressional leaders also were aware of what was being done," they should be held accountable.

The issue is whether the actions in question cross the line established by congress. Does not the opinion of congressional leaders provide some information about how to interpret this obviously unclear situation?


No. Especially because the current "congressional leaders" probably had little or nothing to do with passing the statute. What matters is what the statute says (and what it means in the context of judicial history). Not whether or not some current member of Congress is willing to condone violating it. (I see Ralph gave you a more thorough answer.)

What is it about waterboarding that makes it special?


Here's one answer: we know it's torture because we always called it torture when other folks did it to us. Here's a question for you: what is it about sodomy that makes it special?

==================
lucius:

I've read other descriptions of the Japanese water torture. The effort there seemed focused on trying to get water into the victim's lungs.


I'm not talking about "other descriptions." I'm talking about this description (pdf, p. 20, third bullet). Was there some other occasion when they "seemed focused on trying to get water into the victim's lungs?" I guess there was. But on this occasion, they were doing the same thing we do. And we called it torture, and prosecuted the Japanese as torturers. For this act, even in the absence of evidence that they "seemed focused on trying to get water into the victim's lungs."

what was the point of this torture?


Who cares? What difference does it make? What was the point of your question?

they probably did not have an opportunity to exercise care in making certain that victims were not genuinely harmed


In the instance I cited, we didn't prosecute the Japanese for failing "to exercise care in making certain that victims were not genuinely harmed." We prosecuted the Japanese as torturers because they used waterboarding, employing a technique essentially identical to our own.

You're trying really hard to evade the central question: why is it criminal torture when they do it, but not when we do it?

it appears that the practice was to make certain that no water entered the victim's … lungs.


It was explicitly understood that "water entered the victim:"

Either in the normal application, or where countermeasures are used, we understand that water may enter — and may accumulate in — the detainee’s mouth and nasal cavity, preventing him from breathing. In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant quantities.


If the water is in my mouth and my nose, what is preventing it from entering my lungs?

But your comparisons with the Khmer Rouge and the Japanese of WW II are not accurate and are not helpful for this discussion.


The comparison is indeed accurate. The one failing to be accurate is you. You are pretending that we did something we didn't do ("make certain that no water entered the victim's … lungs"). I demonstrated that we prosecuted the Japanese as torturers when they used the same procedure as us. You prefer to avoid addressing this.

==================
perkins:

There is nothing described here to prevent water from entering the lungs, this clearly differentiates it from American practice WRT to captured AQ personnel.


As I just explained, you're wrong. Where is your evidence that we did something "to prevent water from entering the lungs?" (I see Ralph also answered you.)

This nation has I think wisely, and not for the purpose of being on the side of the angels, signed on to certain treaties which forbid "torturous" treatment of actual POWs. These are not POWs, they by their own actions do not qualify.


GC Common Article 3 forbids torture, and it applies equally to POWs and to non-POWs.

==================
ta:

Please tell me what terrorist atrocity was prevented by waterboarding KSM 183 times.


The very purpose of KSM's organization is to commit terrorist atrocities.


What a nice example of answering a question with a non-answer. You're also doing a nice job of demonstrating that the true purpose of torture is not intelligence, but rather revenge and punishment.

==================
andrew:

the article by a SERE instructor that Anderson has linked just above, besides being perfectly clear about the goose/gander issue—tactics like waterboarding would 100 percent be labeled torture if inflicted on Americans—corroborates Moore's claim that there are consistent fatalities in SERE training. I think jukeboxgrad was way off base on that.


Are we talking about the same article? Because the article I think you're thinking of says this:

Our methods of instruction were intense, but realistic and safe.


So I hope you'll explain the basis for your claim about "consistent fatalities in SERE training."

==================
rosetta:

Obama seems to be conceding that all this was/is merely a policy decision, no?


That's not my interpretation. My interpretation is that he's kicking this can down the road because he has a lot of other things to work on right now.
4.20.2009 2:57am
Public_Defender (mail):

Statement (not mine):

"What you have described is exactly the opposite of the way the law works in the USA. In actuality, one cannot be prosecuted for acts that the legislature did not give clear notice were criminal."

Response:

This is hilarious!!

Tell me, have you ever practiced criminal defense?

Actually, that is basically the law. See Bouie v. City of Columbia, 378 U.S. 347 (1964).
4.20.2009 6:05am
jukeboxgrad (mail):
And speaking of the way the Bush administration lied to us: we now know that we waterboarded KSM 183 times in one month. (That works out to once every 4 hours, on a 24/7 basis.) This goes way beyond the guidelines established in the Bradbury memo. So Bush made up a bunch of arbitrary, ghoulish rules, and then broke his own rules. And what were we told about this? We were told that KSM was waterboarded this long:

for just 90 seconds


We were also told this:

KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again.


National Review told us that waterboarding "worked quickly." I guess that's why we had to do it 183 times, in one month, to one person. Presumably NR (and others who helped Bush spread these lies) will be running corrections soon.

Helpful numbers and links here. As Sullivan suggests, I think we are now officially a banana republic.
4.20.2009 10:22am
Mahan Atma (mail):
"Actually, that is basically the law. See Bouie v. City of Columbia, 378 U.S. 347 (1964)."


Well, is the language in the case? Yes. But it's a platitude. Courts almost never apply that rule to strike down a statute as void for vague (even on an as-applied basis.) Do I wish they did? Sure. But they don't.

If you think they do, perhaps you can tell me why the obstruction statute I linked to above (18 U.S.C. 1503) hasn't been struck down. How is someone supposed to know what "corruptly" means?
4.20.2009 10:55am
Just an Observer:
jukeboxgrad:

We were also told this:


KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again.


National Review told us that waterboarding "worked quickly." I guess that's why we had to do it 183 times, in one month, to one person. Presumably NR (and others who helped Bush spread these lies) will be running corrections soon.


FWIW, at least one National Review writer, Johah Goldberg, has now adopted a new position:

Sounds Like Torture to Me

I've always been on the fence about whether waterboarding constituted torture. But if the reports are true that the CIA used it scores of times in a single month on a single prisoner, than I think the threshold has been met. Debating whether it was worth it still seems open to debate, depending on the facts. But I think waterboarding someone 183 times in a month does amount to torture no matter how you slice it.
4.20.2009 11:16am
Just an Observer:
More interesting detail about the disclosure of the sheer number of waterboarding incidents, from today's New York Times online:

The new information on the number of waterboarding episodes came out over the weekend when a number of bloggers, including Marcy Wheeler of the blog emptywheel, discovered it in the May 30, 2005, memo.

The sentences in the memo containing that information appear to have been redacted from some copies but are visible in others. Initial news reports about the memos in The New York Times and other publications did not include the numbers.

Michael V. Hayden, director of the C.I.A. for the last two years of the Bush administration, would not comment when asked on the program “Fox News Sunday” if Mr. Mohammed had been waterboarded 183 times. He said he believed that that information was still classified.
4.20.2009 11:47am
Oren:

No, I think the main problem people have with the Yoo/Bybee analysis is that it wasn't done in good faith. They deliberately reached a construction of the laws that would allow the executive branch to do what it wanted.

So if a less intelligent man sincerely believed the contents of the memo, it would be fine? I mean, the next executive can simply hire a special-needs child to interpret the law, and so long as he interpreted the law in good faith, that would be OK?


For that matter, they put forth statutory constructions that weren't even reasonable from any objective standpoint.

Their statutory construction was "we will look at each method and conclude something", much the same as what I've seen in this thread. Their conclusions were not reasonable from an objective standpoint but their constructions don't have enough weight not to be reasonable -- the memo was all conclusion and no analysis.
4.20.2009 11:50am
Oren:

Oren, IANAL. (I am a mathematician by training.) I believe the "lawful sanctions" refers to the overall deprivation of liberty. Mere incarceration, much less non-torture physical methods, would be assault if not authorized. One could not transmutate torture into non-torture by passing a law making it a permissible sanction, any more than by a bogus interpretation.

No, but if a detainee is escaping, attempting to put him back in his cell is the imposition of lawful sanctions and cannot be torture. This was in reference to your objection to my rephrasing of 18USC2340 to prohibit all pain, not just "severe" pain (that would be more to some folks' liking, of course, but it's not the statute).

I still maintain that the statute indicates Congress' intent to allow the intentional and specific infliction of non-severe physical and mental pain for the purposes of interrogation.
4.20.2009 11:53am
Oren:


There isn't any mystery or difficulty about where the line is: it is in the INTENT to COERCE conduct from the victim against their will. Not by deception, or by persuasion, but but the deliberate infliction of SUFFERING.

You could try looking the word up:


torture, n. The infliction of intense pain to punish, to extract a confession or information, or to obtain sadistic pleasure. -- torture, v.

7 Black's Law Dictionary 1498

Except that the relevant definition for the purposes of the United States government is not in Black's Law dictionary, but spelled out in 18USC2340. In fact, as I just posted, I think it's quite clear that US interrogators are authorized (expressio unius) to deliberately inflict pain and suffering so long as it does not rise to the level of severe pain or severe suffering.

As a policy matter, we might chose to strike out the word "severe" from the statute, but as a legal matter, it's hard to see that a statute that prohibits the intentional infliction of severe pain also prohibiting the intentional infliction of non-severe pain.
4.20.2009 12:01pm
Oren:

I know you people can read, and that not a single one of you can fail admit that what I've just said is true if you have shred of functional honesty and intelligence.

What you said is absolutely true, assuming that the US Congress intended to import the definition of torture from Black's Law and not from 18USC2340. I don't, however, think that it intended such a thing.
4.20.2009 12:03pm
Oren:


If waterboarding is "torture", and that SERE instructor participated in waterboarding as apparently he's acknowledging in that article, shouldn't we prosecute him as well, and anybody else who practiced torture, whether on terrorists or US service personnel?

Let's play a game. It's called read the statute (18USC2340) and find the missing element!
4.20.2009 12:06pm
jukeboxgrad (mail):
JaO:

waterboarding someone 183 times in a month does amount to torture no matter how you slice it


Thanks for bringing that to my attention. I hadn't noticed. I'm glad Goldberg made that statement.

I think it's interesting to compare it to what he said here:

we did it three times (according to Mukasey)


I wonder if Goldberg is now going to point out that Mukasey (either knowingly or unknowingly) conveyed a blatant falsehood which duped Goldberg and his readers.

And I wonder if you've noticed the update Goldberg has added, where he posts two readers making the bizarre claim that the frequency of the torture proves that it's not torture:

If it was torture and as bad as the liberals say it is nobody would tolerate 6 times every day for a month.


I wonder what the word "tolerate" is supposed to mean in that context. What about KSM's behavior is supposed to be taken as an indication that he was 'tolerating' anything? The fact that he remained on the premises, instead of walking out the front door and calling a cab?

The other reader said KSM was able to "withstand" the procedure, and this means "he has figured out that his captors are not actually going to kill him and has stopped fearing the technique." That word "withstand" is mysterious in exactly the same way as the word "tolerate" used by the other reader. What is the evidence that KSM was able to "withstand" it? What is the evidence that he "stopped fearing the technique?" The fact that he wasn't so scared that he keeled over and died? The fact that he was able to keep making up more and more "total fucking bullshit?"

Is this obscene tripe influenced more by Orwell, or by the Salem witch trials? Both, I guess. If I throw you in the water and you don't drown, that proves you're a witch. If I torture you repeatedly, and you're still alive at the end, that proves you were able to "withstand" and "tolerate" the torture, which proves that it wasn't really torture, after all:

At it worst it sounds like something someone got used to rather quickly and decided it wasn't all that bad and certainly worth holding out.


That nasty devil chose to keep living ("holding out"). This is proof that "it wasn't all that bad."

This is way beyond satire.
4.20.2009 12:09pm
jukeboxgrad (mail):
It's obvious now the mistake the Japanese made when they tortured us on waterboards. They only did it once, or several times, to each prisoner. How silly of them. They should have done it hundreds of times, to each prisoner. Then Goldberg's readers would have chimed in to say that this proves "it wasn't all that bad."
4.20.2009 12:14pm
Oren:
Andrew wrote:

Ultimately, for close cases, torture is what the factfinder decides is torture.

Mahan wrote:

There's nothing "result-oriented" about my analysis. So the line is somewhat fuzzy - so what?


Sorry, got those two threads mixed up (easy enough here).

Anyway, it's clear enough I that I don't buy Andrew's method because the law is meant to be forward-looking, not retrospective. Conduct needs to be criminalized a priori.

At any rate, if I may turn back to my main syllogism here:

(1) Congress did not forbid the (deliberate, intentional, specific) infliction of non-severe (physical or mental) (pain or suffering) for the purposes of coercive interrogation.
(2) It's a valid policy choice for an executive to do (1), even if it's not a good idea.
(3) In order to do (1) without violating the law, there needs to be a mechanism to decide when the pain incident to interrogation is severe.
(4) That distinction is not a legal one but, as Eric points out, an empirical/evidentiary one that is not well suited to the normal OLC analysis process.
(5) We therefore need some sort of new method that the executive can use if it chooses to pursue the legal policy described in (1), assuming Congress does not amend the Torture Act.

Please poke as many logical holes in this train as possible. Just don't tell me that it's unseemly for the executive to want to get as close to the line as possible, just how to do so as "safely" as possible.
4.20.2009 12:17pm
Oren:

What is the evidence that KSM was able to "withstand" it? What is the evidence that he "stopped fearing the technique?

Theoretically speaking, if he divulged (independently confirmed) information late in the process that would be proof that he was withstanding the method up to that point. We were told that waterboarding leads to immediate and unconditional spilling of guts, that would obviously not be the case if he withheld something until treatment #155.

I'm not saying this is a fact, I'm hypothesizing on how one might prove that statement.
4.20.2009 12:20pm
Just an Observer:
Oren: I still maintain that the statute indicates Congress' intent to allow the intentional and specific infliction of non-severe physical and mental pain for the purposes of interrogation.

Leaving aside the facile omission of "or suffering" from your twisted paraphrase of the statutory language, no doubt you would support prosecution so that courts could determination that your theory is correct. Then the defendants would be acquitted, the precedent would be established, and you and Bybee would be proved right.

BTW, I see that you have promoted your standard of review from "whatever minimally-plausible construction" -- the standard you incorrectly claim OLC is supposed to uphold -- to a boldfaced certainty about congressional intent.

Your own ipse dixit assertion of what Congress intended could never stand up in a real court, even less than it can stand up in the court of public opinion. These memos only worked, temporarily, as unreviewed secret law written in bad faith.
4.20.2009 12:24pm
Oren:

Leaving aside the facile omission of "or suffering" from your twisted paraphrase of the statutory language

My mistake, although I included it in my later post.


no doubt you would support prosecution so that courts could determination that your theory is correct

What theory? I'm just reading the statute. Are you implying that the courts would effectively "read out" the word "severe" from the statute? That's contrary to a bedrock rule of statutory construction.


Then the defendants would be acquitted, the precedent would be established, and you and Bybee would be proved right.

I've said dozens of times that Bybee was dead wrong. There is no way that the physical pain incident to waterboarding (once) is almost certainly severe. I've almost drowned, it's sort of like being burned from the inside.

Now, are you implying that just because Bybee did something wrong, I cannot even theoretically inquire as to how one would faithfully construct the statute for an executive that earnestly desires to give the interrogators maximum freedom to do anything not forbidden by Congress?


BTW, I see that you have promoted your standard of review from "whatever minimally-plausible construction" -- the standard you incorrectly claim OLC is supposed to uphold -- to a boldfaced certainty about congressional intent.

You have confused two things. The bold-faced certainty is the interpretation that the language Congress wrote is, in fact, what the law is -- e.g. forbidding only pain or suffering that rises to the level of "severe". You persist in reading that word out or, worse, not explicitly omitting it but giving it no semantic weight.

The minimally-plausible construction bit refers to how the OLC chooses to apply the standard written into a concrete policy on a particular method of interrogation. It is analogous to the controversy in Chevron over how to applying the Congressional language ("new or modified major stationary sources") to the concrete case of how to determine whether an individual improvement constitutes a modification.
4.20.2009 12:39pm
Oren:


Your own ipse dixit assertion of what Congress intended could never stand up in a real court, even less than it can stand up in the court of public opinion. These memos only worked, temporarily, as unreviewed secret law written in bad faith.

Are you seriously asserting that Congress intended to forbid also the intentional infliction of non-severe physical or mental pain or suffering? What kind of statutory construction allows you to just ignore an important modifier like that?
4.20.2009 12:41pm
Oren:
I should add that the memos' determination that waterboarding was non-severe wouldn't hold up in a court, distinct from the assertion that if a method is non-severe it is legal.
4.20.2009 12:42pm
Just an Observer:
Oren: The minimally-plausible construction bit refers to how the OLC chooses to apply the standard written into a concrete policy on a particular method of interrogation.

A defense attorney when acting as an advocate might make an argument that is only colorable, based on "minimally-plausible construction." But OLC has a much higher standard to uphold. Especially because its opinions are often unreviewable in practice, OLC has a particular duty to decide objectively what the law is -- similar to the duty that a judge has.

The deliberate confusion of those standards, which amounted to bad-faith lawmaking in secret, was the underlying cancer of the Bush-era OLC. It enabled several forms of lawbreaking -- not just torture, but also illegal wiretapping. And your specious progagandizing -- the current partisan talking point that this was all just some gentleman's disagreement among lawyers over "policy" -- is the Big Lie that must be rejected. It simply cannot be considered business-as-usual governing to subvert the very mechanisms of intra-executive adjudication.
4.20.2009 1:04pm
jukeboxgrad (mail):
oren:

if he divulged (independently confirmed) information late in the process that would be proof that he was withstanding the method up to that point.


But that doesn't seem to be the reasoning that's being used by the persons I cited. They don't seem to be claiming (a claim that would be based on nothing other than speculation) that KSM suddenly divulged some valid intel late in the process. They seem to be looking at nothing other than the number of repetitions, and claiming that this itself justifies the use of words like "tolerate" and "withstand." As I said, I can't see how to interpret that perspective as anything other than depravity.

But as a theoretical matter, I understand the logic of the concept you're offering.

There is no way that the physical pain incident to waterboarding (once) is almost certainly severe.


Is that really what you meant to say? I wonder if you meant to say this:

There is no way that the physical pain incident to waterboarding (once) is NOT almost certainly severe.
4.20.2009 1:20pm
Oren:
JBG, yup, I really butchered that attempt at written language.
4.20.2009 1:45pm
Oren:

But OLC has a much higher standard to uphold. Especially because its opinions are often unreviewable in practice, OLC has a particular duty to decide objectively what the law is -- similar to the duty that a judge has.

Is this a statutory duty or just a duty that you want to impose on them for your own purposes? Moreover, it's undisputed that a President may overrule the OLC simply by drafting his own analysis and signing it (which Bush threatened to do to Comey but ultimately compromised).

The OLC constructs the law for the executive, they are not bound to be policy-neutral arbiters like ArtIII judges.


The deliberate confusion of those standards, which amounted to bad-faith lawmaking in secret, was the underlying cancer of the Bush-era OLC. It enabled several forms of lawbreaking -- not just torture, but also illegal wiretapping.

No, the underlying problem was expediency. Bad-faith construction of the law was merely a means to that end. I don't dispute that lawbreaking did, in fact, take place (multiple times now).


And your specious progagandizing -- the current partisan talking point that this was all just some gentleman's disagreement among lawyers over "policy" -- is the Big Lie that must be rejected.

What else could it be? Bush wanted guidelines to allow his interrogators to deliberately inflict as much pain and suffering for coercive interrogation as the law permitted (to wit, up to the point where such pain and suffering is severe). That is a policy that comports with the law -- by definition the most you can do that isn't illegal is legal.

Of course, I don't excuse Bybee's incorrect factual construction that the pain/suffering from various interrogation techniques do not rise to the level of "severe" but the incorrect empirical determination of what the maximum legal coercive interrogation consists of is distinct from the policy choice to inflict the maximum legal coercive interrogation.
4.20.2009 1:53pm
My Middle Name Is Ralph:

At any rate, if I may turn back to my main syllogism here:

(1) Congress did not forbid the (deliberate, intentional, specific) infliction of non-severe (physical or mental) (pain or suffering) for the purposes of coercive interrogation.
(2) It's a valid policy choice for an executive to do (1), even if it's not a good idea.
(3) In order to do (1) without violating the law, there needs to be a mechanism to decide when the pain incident to interrogation is severe.
(4) That distinction is not a legal one but, as Eric points out, an empirical/evidentiary one that is not well suited to the normal OLC analysis process.
(5) We therefore need some sort of new method that the executive can use if it chooses to pursue the legal policy described in (1), assuming Congress does not amend the Torture Act.



1. Your first point is highly debatable. Although I agree that the Federal Torture Statute clearly does not prohibit the infliction of non-severe (physical or mental) (pain or suffering) for the purposes of coercive interrogation, there are other laws that arguably prohibit these techniques.

2. True only to the extent such choices do not violate other applicable laws.

3. Agreed.

4. Yes and no. For certain actions, I think no reasonable person could disagree that they were torture. For others, I think no reasonable person could disagree that they were not torture. Certainly, case law regarding what constitutes torture could provide some clarity. But, there will no doubt be lots of gray area in between.

5. What you ask for would be nice but it does not exist in the real world without sacrificing something else.
4.20.2009 2:53pm
Just an Observer:
Oren: Is this a statutory duty or just a duty that you want to impose on them for your own purposes? Moreover, it's undisputed that a President may overrule the OLC simply by drafting his own analysis and signing it (which Bush threatened to do to Comey but ultimately compromised).

The OLC constructs the law for the executive, they are not bound to be policy-neutral arbiters like ArtIII judges.


The Big Lie stated without follyswaddles. My "own purposes" are to defend the proposition that presidents and their lawyers must follow the law.

You might start with a top-down analysis from the President's constitutional duty to "take care that the laws be faithfully executed." Yes, he can overrule the OLC and the attorney general if he dares. But it is OLC's job to tell him no if necessary. Read Kmiec. Read Goldsmith. Read Dellinger. Read Johnsen.

If you argue that the historical role of OLC in fact was merely to be subordinate to the president's will, I refuse to take you seriously. The Bush era, especially during the tenure of Bybee and Yoo, was the aberration.



Of course, I don't excuse Bybee's incorrect factual construction that the pain/suffering from various interrogation techniques do not rise to the level of "severe" but the incorrect empirical determination of what the maximum legal coercive interrogation consists of is distinct from the policy choice to inflict the maximum legal coercive interrogation.

What Bybee did in the recently released memo was to accept the CIA's own "factual" (but really conclusory) assessment that waterboarding did not rise to the level of severe physical pain or suffering, which amounted to a circular fallacy. (See Brian Tamanaha on that.)

But Bybee also, on the same date, signed another secret memo that did addresse his theoretical legal underpinning -- infamously stating that it wasn't torture until it reached the level of organ failure.

I don't see that anyone is arguing that the executive cannot do what is actually lawful. What it can't do is use bad-faith legal opinions to call lawful that which is not. You seem not to dispute that waterboarding was unlawful, and that the opinions were rendered in bad faith. Yet you continue to say it's all okay because OLC works for the president.
4.20.2009 2:54pm
My Middle Name Is Ralph:

Is this a statutory duty or just a duty that you want to impose on them for your own purposes? Moreover, it's undisputed that a President may overrule the OLC simply by drafting his own analysis and signing it (which Bush threatened to do to Comey but ultimately compromised).

The OLC constructs the law for the executive, they are not bound to be policy-neutral arbiters like ArtIII judges.


I think you have a very bad misimpression of the OLC's role. They are supposed to give their genuine, best opinions as to what the law is, not what the law should be or what one can argue without being frivolous.
4.20.2009 3:15pm
Andrew J. Lazarus (mail):
rosettastone wrote
Lazarus, If waterboarding is "torture", and that SERE instructor participated in waterboarding as apparently he's acknowledging in that article, shouldn't we prosecute him as well, and anybody else who practiced torture, whether on terrorists or US service personnel?
I see. And since your wife presumably consents to sex with you, if I rape her forcibly, no problem.

Are you really too stupid to see the value of having American forces submit to torture in order to resist it?

I don't think any of the arguments for torture are very good, but this isn't really an argument you are making; it's drivel intended to waste my time. You go in the kill file, next to fools who argue that Hamas can't be anti-Semitic because Arabs are Semites, too.
4.20.2009 3:24pm
Andrew J. Lazarus (mail):
I still maintain that the statute indicates Congress' intent to allow the intentional and specific infliction of non-severe physical and mental pain for the purposes of interrogation.
I would agree with that. However, I also believe there is no real question whether many of the OLC-approved techniques cause severe pain and suffering, in particular, waterboarding, sleep deprivation, and forced standing. (The latter two might not cause severe pain and suffering in some low dose, but would in the doses approved.)
4.20.2009 3:29pm
MarkField (mail):

Is this a statutory duty or just a duty that you want to impose on them for your own purposes? Moreover, it's undisputed that a President may overrule the OLC simply by drafting his own analysis and signing it (which Bush threatened to do to Comey but ultimately compromised).

The OLC constructs the law for the executive, they are not bound to be policy-neutral arbiters like ArtIII judges.


Adding to JaO's point that the Constitution obligates the President to obey the law and that the job of OLC is to tell the President what that law is, you can find a detailed discussion of OLC's job here. It's written by Dawn Johnson, Pres. Obama's appointee to head OLC, and others.
4.20.2009 4:03pm
rosetta's stones:
Hey Lazarus, no need to be rude, I just asked you a question. You didn't answer it, so presumably you don't like the answer you'd be giving. That's the problem with absolutist thinking, the kind you seem to be deriding in your post... it leaves no room for situational analysis. "It's torture... and torture must be punished." That's a heavy burden to be carrying, no wonder you're angry.

You shoulda gone the lawyer route like the other guy, and cited some legal reasoning to explain why the SERE guy didn't commit a crime. That got him off the hook. You jumped happily onto it, though.
.
.

After reading through all these posts, I think Obama is taking the right tack here. It's a policy issue, one he may or may not agree with, but policy nonetheless.
4.20.2009 4:18pm
Joseph Slater (mail):
rosetta's stones:

Lazurus can speak for himself, but he did, in fact, point out the obvious flaw in your comparison: lots of stuff is legal with consent that is not legal without it. Indeed, Lazurus used a dramatic, but legally accurate, example to make that point.
4.20.2009 4:31pm
rosetta's stones:
So then, can we assume torture is legal in some cases, Slater? Or is it that the SERE waterboarding isn't torture?

The other lawyer seemed to indicate that the SERE guy's status as a trainer made him exempt from the particular law... so he ddn't really address the issue of "torture". He didn't get to the "merits", as I believe you lawyers like to say.

But you can answer the question, too (and leave out the legalese, as I'm looking for something more important than that). If it's "torture", shouldn't we prosecute the torturers, including this SERE trainer?
4.20.2009 5:00pm
Just an Observer:
rosetta's stones: It's a policy issue, one he may or may not agree with, but policy nonetheless.

When a court rules on what the law is, is it making "policy?"

No. And neither is OLC when it issues an opinion that is binding as law within the executive branch.

But by all means, keep repeating the deception. If you repeat it often enough perhaps it will become true as a self-fulfilling prophesy, and the historically respected role of OLC will be permanently destroyed. We will actually become a nation of men, not of laws, and all presidents will do whatever their shills installed at OLC connive to excuse.
4.20.2009 5:03pm
Joseph Slater (mail):
Rosetta's Stones. You're missing the point, and there is no legalese to it: consent changes the legal status of a whole bunch of acts. So it's not a matter of "torture being legal in some cases." The point is that certain acts that would otherwise be torture are not torture if there is consent.

That's just like the legal rule that sex between adults without consent is rape but sex between adults with consent is not rape. It's not that "rape is legal in some cases."
4.20.2009 5:08pm
rosetta's stones:
JAO, you're preaching to the converted. The OLC seems to be a tool of whatever administration's policy it's working within, as far as I can see.

Bush wanted waterboarding support from the JD... he got it.

Barrack wants DC de facto statehood support from the JD... he's getting it.

FDR wanted to sell destroyers and make foreign commitments without Congressional approval, and wanted support from the JD... he got it.

That horse is several counties over, and still running. He may have never been within the barn, for that matter.
4.20.2009 5:09pm
rosetta's stones:

Slater: "...there is no legalese to it: consent changes the legal status of a whole bunch of acts. So it's not a matter of "torture being legal in some cases." The point is that certain acts that would otherwise be torture are not torture if there is consent."


Slater, come on, man. I said no legalese, and your first sentence references legal status. That's not what I'm looking for, I want your answer, not some law's. Was that human being tortured? This is a binary answer, yes or no.

I know you lawyers love your hypotheticals, but I'm talking about the real world, with a rack, and a towel, or saran wrap or whatever they use, and a 5-gallon bucket of water... and a guy taking another human being to the brink. If that's torture per the above question, should we prosecute that miserable sadist, or shouldn't we? (We'll find a way to do so, there'll be some obscure law somewhere we can use, if we decide to do so, so ignore that.)

Forget the victim, we're talking about ourselves, isn't that the common theme running through this discussion, that torture degrades the torturer? Isn't it the behavior we're proscribing here?
4.20.2009 5:24pm
Joseph Slater (mail):
Rosetta's Stone: the idea of "consent" is not just a legal one. It's a moral/ethical one. Me having sex with my wife with her consent is moral, ethical, doesn't degrade me (or her), and doesn't make me a bad guy. Some stranger forcing my wife to have sex with him without consent is immoral, unethical, does degrade him and her, and does make him a bad guy.

Consent, as I hope you agree, makes all the difference there in all the ways you list. And it makes all the difference in the torture scenario as well. So no, the willing participant in SERE training is NOT being tortured, and the trainers are NOT torturers. Just like I'm not a rapist when I have sex with my wife.

This is all a pretty obvious distinction. I wonder why you keep missing the obvious point.
4.20.2009 5:43pm
Oren:

1. Your first point is highly debatable. Although I agree that the Federal Torture Statute clearly does not prohibit the infliction of non-severe (physical or mental) (pain or suffering) for the purposes of coercive interrogation, there are other laws that arguably prohibit these techniques.

2. True only to the extent such choices do not violate other applicable laws.

I haven't seen any such laws, at least as applied to non-citizens.


4. Yes and no. For certain actions, I think no reasonable person could disagree that they were torture. For others, I think no reasonable person could disagree that they were not torture. Certainly, case law regarding what constitutes torture could provide some clarity. But, there will no doubt be lots of gray area in between.

True and regrettable, not the least of which because some Presidents will push that gray area far (very far) into the black.


5. What you ask for would be nice but it does not exist in the real world without sacrificing something else.

I don't know that this is specifically the case. Dershowitz's (unsavory) "torture warrant" would at least inject an unbiased ARTIII judge into the process, who would be empowered to look at the evidence to decide whether the pain and suffering that the gov't proposes to inflict rises to the level of severe.
4.20.2009 5:55pm
John Moore (www):

True and regrettable, not the least of which because some Presidents will push that gray area far (very far) into the black.


Black would be cutting off fingers, beating, raping or killing your loved ones in front of you, bamboo-shoots under the finger-nails, burning with cigarettes, repeated kicks in the nuts, eye-gouging, etc.

You know, all the stuff that everyone agrees is torture.
4.20.2009 6:11pm
Oren:



You might start with a top-down analysis from the President's constitutional duty to "take care that the laws be faithfully executed." Yes, he can overrule the OLC and the attorney general if he dares. But it is OLC's job to tell him no if necessary. Read Kmiec. Read Goldsmith. Read Dellinger. Read Johnsen.


"If he dares"? Seriously? He is the only one of the bunch directly elected by a sovereign People. I think the real question is would an unelected lawyer dare to deny the President the right to make policy (of course, dissenting is not denying, they have every duty to tell him what they think, just not to stand in the door).

Also, the Kmiec/Johnsen view of the OLC is not canon, nor is it unquestionable.


I don't see that anyone is arguing that the executive cannot do what is actually lawful. What it can't do is use bad-faith legal opinions to call lawful that which is not. You seem not to dispute that waterboarding was unlawful, and that the opinions were rendered in bad faith. Yet you continue to say it's all okay because OLC works for the president.

You are arguing that the executive can do what is lawful, but you don't tell him in any serious way how to construct the relevant statute except as to exclude large swathes of legal conduct as unlawful OR be subject to the risk that a factfinder will later find otherwise.

Also, the Bybee memo is NOT-OK by dint of coming to the wrong conclusions, not by dint of the fact that is was in bad faith.
4.20.2009 6:14pm
Oren:

You know, all the stuff that everyone agrees is torture.

I don't see the "everyone agrees" standard anywhere in 18USC.
4.20.2009 6:21pm
Oren:


That horse is several counties over, and still running. He may have never been within the barn, for that matter.

You forgot Clinton's OLC and their absurd reading of the WPA that allowed them to bomb Serbia for a while.
4.20.2009 6:22pm
Oren:

Was that [SERE trainee] being tortured? This is a binary answer, yes or no.

I know you lawyers love your hypotheticals, but I'm talking about the real world, with a rack, and a towel, or saran wrap or whatever they use, and a 5-gallon bucket of water... and a guy taking another human being to the brink. If that's torture per the above question, should we prosecute that miserable sadist, or shouldn't we?

(1) Yes, he was tortured.
(2) No, we shouldn't prosecute torture unless it was done in violation of some relevant statute.

You know, there's torture-porn on the internet, performed with both advised prior consent and the continued unequivocal right of the "victim" to withdraw consent at any time during the process. Why don't we prosecute them? For the same reason: they have violated no law.
4.20.2009 6:28pm
Leo Marvin (mail):
Oren,

(5) We therefore need some sort of new method that the executive can use if it chooses to pursue the legal policy described in (1), assuming Congress does not amend the Torture Act.

If the executive is going to push the envelope of Congressional intent, especially when the actions it orders will be covert, it should inform Congress of exactly what it has in mind. Not, as the Bush administration apparently did, hide its intentions by ginning up fatuous legal justifications it then keeps secret. That's another reason I add my voice to those who call for disclosing exactly what Congress was told, and holding people of either party accountable for what they knew.
4.20.2009 6:34pm
rosetta's stones:
Thanks, Slater, I got you, that SERE waterboarding isn't torture in a legal OR moral sense, iyo.

Just one more part though, since consent seems to be central in both your analyses. That guy might just give consent to be dismembered. Should we care what he consents to? If torture is about us, shouldn't we be proscribing behavior, with or without consent?

Honestly, I don't observe Barrack doing that. I think he's reserving all this as policy, same as Bush. The "He believes it's torture but he's just kicking the can down the road for expediency's sake" thing just doesn't do it for me. There'd have to be something more concrete here. Maybe time will tell.
4.20.2009 6:35pm
My Middle Name Is Ralph:

I haven't seen any such laws, at least as applied to non-citizens.


Here's an excellent rundown of pretty much the universe of laws that could even arguably apply.



It seems clear that many of these laws would not apply. Whether certain others apply is unclear to me.


I don't know that this is specifically the case. Dershowitz's (unsavory) "torture warrant" would at least inject an unbiased ARTIII judge into the process, who would be empowered to look at the evidence to decide whether the pain and suffering that the gov't proposes to inflict rises to the level of severe.


An interesting idea. Your proposal is different from Dershowitz's. As I understand it, he suggests allowing an exception to the torture statute under limited circumstances if approved by a judge. You're essentially proposing that judges issue an advisory opinion about whether certain proposed conduct constitutes torture. Not sure that's constitutional—I really don't know enough about the legal basis for the current rule against court's issuing advisory opinions. Regardless, and assuming no constitutional hurdle, I'm not sure I like the idea. Would the court's opinion be binding on the issue? Would the intended victim be afforded basic due process guarantees like right of cross examination, subpeona to secure evidence, have an attorney represent him, ect.? What happens if the facts turn out to be a little different than what they were presented to be at trial ("I doused with water at 39 degrees for 28 mintues, not water at 41 degrees for 25 minutes as was represented to court in deciding whether the procedure was "torture")? Doesn't seem workable to me at first glance.
4.20.2009 6:54pm
Oren:

You're essentially proposing that judges issue an advisory opinion about whether certain proposed conduct constitutes torture.

I suppose he could do it in retrospect and order them to stop if he thinks it crosses the bounds. Just a random thought
4.20.2009 7:03pm
Just an Observer:
Oren: "If he dares"? Seriously? He is the only one of the bunch directly elected by a sovereign People. I think the real question is would an unelected lawyer dare to deny the President the right to make policy (of course, dissenting is not denying, they have every duty to tell him what they think, just not to stand in the door).

W did back down on a different issue, in the face of the revolt by the principled DOJ lawyers -- Ashcroft, Comey, Goldsmith, Mueller, et al -- in 2004.

But before that, with the compliant Jay Bybee on the job, Bush and Cheney got their legal fig leaf for the asking. Then the OLC chief got his lifetime-tenured reward.

Truly a historic low point in American law. It ranks with the Palmer raids and the Japanese-American internments. I wonder if Judge Bybee is proud.

Also, the Kmiec/Johnsen view of the OLC is not canon, nor is it unquestionable.

Obviously, there are partisans or extremists like yourself trying to spread the Big Lie to the contrary. Some adminstrations can have "policies" that include committing torture or illegal wiretapping. Others might have "policies" that involve committing state murder, or disappearing of dissidents. No big deal. It's the way our republic works in the normal course of business. Presidents can always break the law as they choose as a matter of "policy."

Pray tell, if the only legitimacy of the OLC opinion derives from following the President's orders, why is it a legal defense for the lower-echelon actors to act in accordance with an OLC opinion, which is considered binding law within the executive branch. Or do you believe simply that following superior executive orders, regardless of objective legality or the bona fides of the attorney general's authority, is an absolute defense?
4.20.2009 7:03pm
My Middle Name Is Ralph:

Black would be cutting off fingers, beating, raping or killing your loved ones in front of you, bamboo-shoots under the finger-nails, burning with cigarettes, repeated kicks in the nuts, eye-gouging, etc.


Please explain using the legal framework and analysis established by the torture memos why raping or killing your loved ones in front of you would be torture? Same thing with cutting off fingers, assuming we did it one at a time and always while the detainee was under anasthesia such that he experienced no severe physical pain.

If you can't, doesn't that tell you that there is something wrong with the legal framework and analysis set forth in the torture memos?
4.20.2009 7:05pm
Oren:
And yes, I meant to say Dershowitz-esque. Thanks for the correction.

I mean, I guess the ultimate problem is that we have a legal body (the OLC) making factual/empirical determinations.
4.20.2009 7:09pm
Leo Marvin (mail):
By the way, I've always held there's a legitimate, if extremely narrow place for a ticking time bomb exception. But these revelations of hundreds of waterboardings over several weeks validate the slippery slope predictions about legitimating torture prospectively. (Curiously, the pro-torture arguments here that used to be so heavily weighted toward necessity and urgency are now unapologetically ends-justify-the-means realpolitik.) Anyway, that's why, now more than ever, I echo Mark Field's view that the only way to allow for an actual ticking time bomb is after the fact, via prosecutorial discretion, jury nullification, pardon, etc.
4.20.2009 7:12pm
Oren:


Obviously, there are partisans or extremists like yourself trying to spread the Big Lie to the contrary. Some adminstrations can have "policies" that include committing torture or illegal wiretapping. Others might have "policies" that involve committing state murder, or disappearing of dissidents. No big deal. It's the way our republic works in the normal course of business. Presidents can always break the law as they choose as a matter of "policy."

First of all, I'm not a partisan (or, if anything, a Dem partisan). Check what I've said on this board -- I'm proud to have been labeled loony-left by Zarkov et al. I have endeavored to always make a clear is/ought distinction with regard to the law. Quite often everyone wants to talk about what the law ought to be instead of describing what it is.

Second, administrations are elected by The People to exercise their better judgment in enacting policies for the greater good. It is facile to point out that this procedure is not perfect and occasionally we get travesties like Harding, Nixon or Bush II. Despite these distinct failures, I assert that government by consent is a good unto itself as opposed to merely a means to some other end.

Third, while assertions that a particular policy does not break the law should be treated skeptically outside the executive, it is binding on the inside. CIA/DOD/DOJ officials are not empowered to veto the President under any circumstances. They can resign in protest (rather effective, as it seems) and go to Congress or they can do what their boss tells them. Those are the options.


Pray tell, if the only legitimacy of the OLC opinion derives from following the President's orders, why is it a legal defense for the lower-echelon actors to act in accordance with an OLC opinion, which is considered binding law within the executive branch. Or do you believe simply that following superior executive orders, regardless of objective legality or the bona fides of the attorney general's authority, is an absolute defense?

First, every member of the executive has sworn an oath and is accountable to himself to the fulfillment of that oath. If he can't satisfy it, he ought to resign.

The legitimacy of the OLC derives from being empowered to speak on behalf of the President who is a coequal branch of government (not some overpaid security consultant). When it speaks, it speaks with his voice. Operating within the confines of OLC advice is not an absolute defense by any stretch, but it ought to be given significant weight (I have no doubt, for instance, that no jury would convict an interrogator who complied with OLC advice).
4.20.2009 7:48pm
Just an Observer:
The legitimacy of the OLC derives from being empowered to speak on behalf of the President who is a coequal branch of government (not some overpaid security consultant). When it speaks, it speaks with his voice.

I guess we can dispense with hiring those lawyers. The president just needs efficient bureaucrats to pass on the orders.

Thank you for providing such a clear example of the gross contempt for the law Bush and Cheney established as GOP doctrine. You may not be a partisan, but you are parroting those talking points quite will. The latest spin -- the Big Lie -- is that everybody always does it, and it's supposed to work that way. (That is the reason for the party-line resistance to the confirmation of Dawn Johnsen. Reestablishing the principles for OLC process -- which she and collegues have articulated in a high visibility way -- would give the lie to that spin.)
4.20.2009 8:11pm
Just an Observer:
Oren,

BTW, I wasnt't sure of your politics. That's why I said "there are partisans or extremists like yourself."

So I'll take your word for not being a partisan. But your radical views of the law are certainly extremist.
4.20.2009 8:16pm
Leo Marvin (mail):

The legitimacy of the OLC derives from being empowered to speak on behalf of the President who is a coequal branch of government (not some overpaid security consultant). When it speaks, it speaks with his voice.

I don't think that's right. OLC advises the President. He can decide to put his imprimatur on it or he can reject it. Either way, he speaks for himself. If he weren't capable of overriding OLC, there'd have been no reason for Ashcroft, Comey, et al, to threaten resignation if Bush didn't adopt the revised OLC positions on warrantless surveillance.

I agree that a federal employee who acts in good faith on OLC advice is, and probably should be, inoculated from liability. But he'd never know about that advice if it hadn't been adopted by the President.
4.20.2009 8:48pm
rosetta's stones:

"I guess we can dispense with hiring those lawyers. The president just needs efficient bureaucrats to pass on the orders."


Exactly. Same as it ever was.

And we save money by hiring fewer lawyers.
4.20.2009 8:50pm
rosetta's stones:

"You forgot Clinton's OLC and their absurd reading of the WPA that allowed them to bomb Serbia for a while."


Yeah and that reminds me, Truman got us going in Korea without much in the way of Congressional action. I'm too lazy and too dumb to do so, but check and see if the stalwarts at OLC were consulted then.
4.20.2009 9:15pm
Richard Aubrey (mail):
So, now Cheney wants to declassify the results.
What about that?
He seems confident the results would demonstrate this stuff worked, and was valuable.
Choice is to declassify and prove Cheney is right, or keep it classified and look as if you're trying to keep from showing the public that Cheney is right.
4.20.2009 9:15pm
rosetta's stones:
I have a 3rd option. Let's waterboard Cheney and ask him to truthfully tell us why he's doing this... for politics, or to complete the historical record?
4.20.2009 9:18pm
Oren:

So I'll take your word for not being a partisan. But your radical views of the law are certainly extremist.

I'll take it you think that every 20th century President is a radical-executive? Most of them have subscribed to just the view I've espoused here.

Even moreso, do you dispute the basic tenet of Chevron, that whenever the executive interprets a statute, it is due deference unless that reading is manifestly faulty? The President is bound by the laws, but since he has not written the law himself (in most cases) he is entitled to considerable deference in interpreting any ambiguity or judgment call (call it "Constitutional contra proferentem") until the courts set him straight or Congress makes its will more clear.
4.20.2009 9:32pm
Richard Aubrey (mail):
rosetta's
So, after he's waterboarded we find out...what?
Presumably the gov will keep his information private unless it seems useful. In which case, we can say that enhanced interrogation makes you say anything the questioner wants you to say and so his statement about his motivations are words the questioner--Obama--put in his mouth.
I don't see how that helps.
Anyway, it appears that Bush is not the only good bluffer player in the previous administration.

I tried to say what sport the bluffing was referencing, but the spam filters gave me a hard time. I think I could get away with saying it is played around a table with plastic tokens and celluoid thingies with various numerals on them.
4.20.2009 9:49pm
Just an Observer:
Oren: I'll take it you think that every 20th century President is a radical-executive? Most of them have subscribed to just the view I've espoused here.

I call B.S. Please write a cite for each of those 21 legal positions on the blackboard. Not just vague historical anecdotes about executive power, please, but actual legal positions.

Even moreso, do you dispute the basic tenet of Chevron, that whenever the executive interprets a statute, it is due deference unless that reading is manifestly faulty?

I call B.S. again. Please provide cites where Chevron (an administrative and regulatory law case about agency authority) has been construed to allow presidents to define away violations of criminal law, or DOJ lawyers to act unprofessionally.

No one disputes the authority of OLC to construe criminal law for executive agencies, Chevron or no Chevron. The issue is the personal, professional performance of the OLC lawyers, not the authority of the Department of Justice. The immediate venue for investigating their performance is the pending OPR investigation. Where things go from there — if anywhere — is probably dependent on that as a next step.

Perhaps Bybee will get a pass. You have conceded that his opinion was wrong. The question is, was it actionably wrong.
4.20.2009 10:06pm
Joseph Slater (mail):
Rosetta's Stone:

Interesting question about what sort of things people should not be allowed to consent to. As to being dismembered, people can legally consent to having limbs amputated by doctors. . . .

But law, and presumably the morality of at least many, does bar consent in some situations. For example, we're generally loathe to say that A can legally consent to B killing A (with occasional exceptions for the terminally ill, but often not even then). Some exceptions are not nearly so dramatic. In my field of labor and employment, laws generally bar employers and employees from making contracts in which the parties consent to, e.g., wages less than the minimum wage, or a bar on hiring workers who are not union members.

More commonly, though, consent makes all the difference, legally and morally. That's true in sex, boxing matches (or other contact sports), having your appendix (or other internal organs) removedm and, I would say, waterboarding.
4.20.2009 10:26pm
MarkField (mail):

Third, while assertions that a particular policy does not break the law should be treated skeptically outside the executive, it is binding on the inside. CIA/DOD/DOJ officials are not empowered to veto the President under any circumstances.


This isn't true even in the military, where presidential power is at its peak. Soldiers are expressly told they are not to obey illegal orders. Similarly, the Executive has no ability to interpret the law; that's the job of the judiciary. The Executive's Constitutional duty is to execute -- that is, enforce -- the law. In the course of doing that, the Executive is necessarily bound by the law, else the Constitutional duty has no meaning.


The legitimacy of the OLC derives from being empowered to speak on behalf of the President who is a coequal branch of government (not some overpaid security consultant). When it speaks, it speaks with his voice.


That certainly was the position of right wing ideologues under Bush. Under their unitary executive theory, employees within the Executive Branch are merely drones who carry out tasks which the President would carry out himself if he could. Under this (rather theoretical) reading, you'd be right.

There are, however, two important problems with this theory. The first one is that most people look at it more practically than theoretically. The OLC is designed to solve the problem which I noted above, namely that the President can't interpret the law. It's supposed to function in a quasi-independent mode, giving the President the information he needs to fulfill his duty rather than to give him the kind of advice one might give to an adversary in litigation. This may not be theoretically perfect, but it's a good pragmatic solution to a real problem.

The second problem goes directly to another of your statements:


Operating within the confines of OLC advice is not an absolute defense by any stretch, but it ought to be given significant weight


If we take literally the unitary executive theory necessary to support your first point, then there's no reason to give any deference to the OLC's advice. In theoretical effect, the President is simply telling himself (using the OLC) to torture someone (using the CIA). It seems self-evident that nobody can immunize himself in such a fashion. Any claim that the President is immune from violating the law seems more appropriate to a king (rex non potest peccare) than to an officer whose duty is to execute the law and whose oath is to uphold the Constitution.
4.20.2009 10:48pm
Just an Observer:
Meanwhile, Newsweek is reporting that prosecution -- perhaps by a special counsel -- is still on the table within DOJ:

Though administration officials declared that CIA interrogators who followed Justice's legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries--and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say.


Newsweek reporter Michael Isikoff, interviewed by Rachel Maddow on MSNBC tonight, said that story was written before Raum Emmanuel (purporting to describe Obama's position) yesterday tried to rule out prosecution of higher-ups. But, Isikoff said, some officials at DOJ now think the White House chief of staff was out of line to be interfering in Justice business.

I agree. We just went through a big stink during the Gonzales tenure at DOJ over alleged White House interference for or against particular investigations or prosecutions. This is not properly a political decision.
4.20.2009 11:02pm
jukeboxgrad (mail):
rosetta:

You shoulda gone the lawyer route like the other guy, and cited some legal reasoning to explain why the SERE guy didn't commit a crime. That got him off the hook.


No, it didn't get him "off the hook," because he was never on a hook to begin with. What it did was put you on the hook, by proving that you never read the statute. I have a feeling you still haven't.

That horse is several counties over, and still running


Alleged prior crimes and bad behavior are not an excuse for current crimes and bad behavior. But mentioning them does call attention to the fact that you are trying to direct attention away from current crimes and bad behavior.

That guy might just give consent to be dismembered. Should we care what he consents to?


We're free to "care." We're just not free to prosecute the dismemberer for violating the federal anti-torture statute. (And the consent issue is just one of multiple reasons. Which you would know if you read the statute.)

==============
moore:

You know, all the stuff that everyone agrees is torture.


You know, you've now been asked roughly half-a-dozen times, by a bunch of different people (example, example, example, example, example), to articulate how you distinguish, say, sodomy, from, say, waterboarding. And it's not just that you haven't answered the question. You haven't even acknowledged it. This is a pretty big clue that you don't expect to be taken seriously.

I think Andrew nailed it when he said it's something you "determine oracularly."

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

now Cheney wants to declassify the results


Now Cheney is pulling the same shenanigans he pulled before.

If it were true that there are memos that show how successful our torture was, Cheney would have leaked them years ago. He leaked plenty of other things, for essentially the same reasons. Cheney has never seen classified information that wasn't worth leaking, if it could serve him politically.

These memos are non-existent, just like the WMDs were non-existent. And Cheney is playing the same game. It goes like this:

Cheney: Saddam, you better show us where those WMD are hidden.
Saddam: There are no WMD.
Cheney: Aha! Just as I suspected. That proves you're hiding them.

Fast-forward to 2009:

Cheney: Obama, you better release those memos that exonerate me.
Obama: What memos?
Cheney: Aha! Just as I suspected. That proves you're hiding them.

It was quite brilliant of Cheney to construct a situation where in order to save himself, Saddam had to display something that didn't exist: his hidden WMD. So naturally Cheney would like to play that game again. Are some of us dim enough to fall for it, all over again? I guess so.
4.20.2009 11:13pm
jukeboxgrad (mail):
In today's WSJ, I read this:

the memos make clear that water was not actually expected to enter the detainee's lungs


That's odd, because in one of the memos, I read this:

we understand that water may enter — and may accumulate in — the detainee’s mouth and nasal cavity, preventing him from breathing.


If water is accumulating in my nose and mouth as result of the fact that I am struggling to breath while water is being poured over my face, what magic force prevents that water from traveling past my mouth and nose and into my lungs? Wouldn't water in my lungs be the natural and inevitable result of the fact that I'm trying to breath even though water has accumulated in my "mouth and nasal cavity?"

Either there's some magic force I'm not taking into account, or WSJ is promoting blatant misinformation on behalf of the torture apologists. Could that be? If so, I'm shocked.

By the way, note the delicate wording. It's not that 'water didn't enter the lungs.' Or 'we made sure water didn't enter the lungs.' Or 'we used a procedure that prevented water from entering the lungs.' It's that we didn't expect water to enter the lungs. That is, we were depending on some mysterious, magic force to keep the water out of the lungs. And it's not our fault that this magic force failed to materialize. The important thing is that we expected it to. We had no responsibility beyond adopting a stipulated expectation. And the fact that the expectation defies science is the victim's problem, not ours. Here in the Bush administration, we have the power to make science bend to our needs. And likewise for the law.
4.20.2009 11:43pm
Benjamin Davis (mail):
If we insist that they prosecute they will prosecute. I draw your attention to the Society of American Law Teachers' letter released today on the torture memos to President Obama.

http://www.saltlaw.org/human-rights-0

Also on the nominations of Koh and Johnsen see these other SALT statements of last week and this week.

http://www.saltlaw.org/nomination-statements

Best,
Ben
4.20.2009 11:59pm
Andrew J. Lazarus (mail):
Props to jukeboxgrad for catching the dishonest WSJ trope. Why am I not surprised?

Cheney's problem is that he thinks it will be a big win to release the mewlings of the tortured prisoners. Doubtless they confessed to plots to destroy every building they knew the name of. What's more, I bet interrogators arranged the torture of X to corroborate the torture of Y, thereby proving[!] the accuracy of the information obtained.

I suspect that Cheney, because of his cardiac episodes or side-effects of his heart meds. has developed clinical paranoia. For everyone else, the lack of any corroboration obtained by a method other than torture means 90 percent is total fucking bullshit. And worse, we won't know which 90 percent it is.
4.21.2009 12:12am
John Moore (www):
Democratic Senator Joe Lieberman, tonight, in an interview:

1) Water-boarding isn't torture (including in the context of the torture law he helped draft)

2) The president should have the latitude to water-board in dangerous situations

3) Waterboarding did produce actionable intelligence

4) The memoranda should not have been released - the release only helps our enemies.
4.21.2009 1:37am
Just an Observer:
From an overnight NYT story online: Pressure Grows to Investigate Interrogations

On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.

Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution.

The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.
4.21.2009 1:49am
Oren:

Democratic Senator Joe Lieberman

Pretty sure he's an Independent.
4.21.2009 9:50am
Oren:

I call B.S. Please write a cite for each of those 21 legal positions on the blackboard. Not just vague historical anecdotes about executive power, please, but actual legal positions.

Start here.


I call B.S. again. Please provide cites where Chevron (an administrative and regulatory law case about agency authority) has been construed to allow presidents to define away violations of criminal law, or DOJ lawyers to act unprofessionally.

Of course, "define away violations of criminal law" is begging the question. Incorrect legal construction is not the same as willful violation of a statute.
4.21.2009 10:04am
Oren:

Cheney's problem is that he thinks it will be a big win to release the mewlings of the tortured prisoners. Doubtless they confessed to plots to destroy every building they knew the name of.

The specific claim is that the torture of KSM and MK lead to specific information on the whereabouts of another wanted man who was then arrested at that location.


During questioning, KSM told us about another al Qaeda operative he knew was in CIA custody -- a terrorist named Majid Khan. KSM revealed that Khan had been told to deliver $50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al Qaeda's Southeast Asian affiliate known as "J-I". CIA officers confronted Khan with this information. Khan confirmed that the money had been delivered to an operative named Zubair, and provided both a physical description and contact number for this operative.

Based on that information, Zubair was captured in June of 2003, and he soon provided information that helped lead to the capture of Hambali. After Hambali's arrest, KSM was questioned again. He identified Hambali's brother as the leader of a "J-I" cell, and Hambali's conduit for communications with al Qaeda. Hambali's brother was soon captured in Pakistan, and, in turn, led us to a cell of 17 Southeast Asian "J-I" operatives.


This is a much stronger claim that your straw-man-version.
4.21.2009 10:11am
Andrew J. Lazarus (mail):
Sen. Lieberman couldn't even condemn Abu Ghraib without pointing out that the terrorists were worse. And, Mr Moore, Abu Ghraib included sodomy.

On Middle East foreign policy, Lieberman is nuts.
4.21.2009 10:11am
Oren:

This is a much stronger claim that your straw-man-version.

I should add that Hayden's facts require verifying and there are continued doubts as to the timeline.
4.21.2009 10:17am
Andrew J. Lazarus (mail):
@Oren, By September 2006 Bush had mastered his script. When he first started talking about KSM's revelations, he said that the capture of Hambali had broken the plot to crash into the Library Tower in LA. That plot was broken up, but it was scheduled for 2002, before KSM had been captured. That isn't a problem with a calendar; it's a clear indication that the claim has been concocted ex post facto and at least one mistake was made. The evidence for the very existence of many of the other plots is only other confessions, and who knows how they were obtained. In other words, this material is BS. What's true probably didn't come from waterboarding and what came from waterboarding probably isn't true.

John Moore dismissed out of hand the idea that we would follow Communist practice and "corroborate" one false confession with others, all coerced. Why not? If the torturers don't come up with a list of lurid crimes they saved us from, they would just be a bunch of perverts and outcasts.
4.21.2009 10:41am
My Middle Name Is Ralph:
I do not find those who tortured creditable on the issue. However, I do not dismiss out of hand the idea that torture led to actionable intelligence.

Some progressives want to fight the torture battle solely on legal and ethical grounds. This is a mistake. We should squarely confront the argument that torture works and that the US benefitted from it. That is the only way we will not repeat the mistakes made after 9/11 whenever we are next struck by a massive terrorist attack. http://www.nybooks.com/articles/22614 is an independent, bipartisan commission, like the 9/11 commission, that has complete access to all the records and will fully investigate what we did and what the results were.
4.21.2009 11:14am
rosetta's stones:

MarkField: "The OLC is designed to solve the problem which I noted above, namely that the President can't interpret the law. It's supposed to function in a quasi-independent mode, giving the President the information he needs to fulfill his duty rather than to give him the kind of advice one might give to an adversary in litigation."


Mark, problem is, it seems the JD has pretty consistently done what Presidents want, no independence, quasi or otherwise. The 1/2 dozen incidents mentioned above are just what pops to mind... what about all the rest? It is the executive branch, and quite naturally, the JD will do the executive's bidding, or at least that's what we've seen historically, and in important situations, too.



MarkField: "In theoretical effect, the President is simply telling himself (using the OLC) to torture someone (using the CIA). It seems self-evident that nobody can immunize himself in such a fashion."


Sure they can, Bush just did it, and Barrack appears to be affirming it even as we speak (Ignore the boob bait from unnamed sources mentioned above. Holder/Obama are freezing the linebackers until their ADD kicks in, and they don't notice that like Bush, they're reserving coercive interrogations as policy.)
4.21.2009 11:32am
rosetta's stones:

box: "And it's not our fault that this magic force failed to materialize. The important thing is that we expected it to. We had no responsibility beyond adopting a stipulated expectation. And the fact that the expectation defies science is the victim's problem, not ours."


Hey box, are you talking about waterboarding, or the global warming kooks? ;-)
4.21.2009 11:42am
Oren:

When he first started talking about KSM's revelations, he said that the capture of Hambali had broken the plot to crash into the Library Tower in LA.

But if KSM gave correct information on how to find and arrest Hambali after being tortured, that's enough for the claim that torture does not always produce unreliable information.
4.21.2009 12:05pm
Richard Aubrey (mail):
Oren et al.
If it shows that torture is sometimes effective, you guys are going to have to take the tougher route. It's one thing to eschew that which is a waste and is barbaric.
It's another entirely, requiring moral courage which the first does not, to insist on eschewing that which is--possibly on an unpredictable basis--valuable and saves American lives.
IOW, you're going to have to explain why the price in American lives is worth it. To a population which includes certain Americans--but we don't know which--would pay the price for foregoing torture or enhanced interrogations.
Get the Brasso out, folks. You're gonna have to dress'em up.
4.21.2009 12:38pm
John Moore (www):

Pretty sure he's an Independent

Technically true. Effectively, he's a Democrat.
4.21.2009 12:49pm
John Moore (www):
Andrew

Sen. Lieberman couldn't even condemn Abu Ghraib without pointing out that the terrorists were worse. And, Mr Moore, Abu Ghraib included sodomy.

As you know, Abu Ghraib was not within policy. And, of course, he was correct that the terrorists were worse.
4.21.2009 12:50pm
John Moore (www):

John Moore dismissed out of hand the idea that we would follow Communist practice and "corroborate" one false confession with others, all coerced. Why not? If the torturers don't come up with a list of lurid crimes they saved us from, they would just be a bunch of perverts and outcasts.

Yes, and we would take them to the basement of the Lubyanka and give them their "nine ounces."
4.21.2009 12:52pm
rosetta's stones:
That's not funny, comrade Moore.

The whole edifice of the old order and its modes of production, entirely exploitative in character, must be liquidated, and the necessary tools of societal transformation must be availed of the worker. We extract only those.
4.21.2009 1:04pm
Just an Observer:
Oren: Start here.

Been there. Prof Posner took plenty of rhetorical liberty to argue that Clinton's excercise of executive power was controversial, (none of which cases involved abrogations of criminal law). I knew that. I also knew that other presidents have butted heads with Congress over war powers. But nowhere does Posner show that the Clinton-era OLC process violated the principles that Johnsen and her colleagues have articulated. And neither Posner nor anyone else even claimed that the opinions were rendered in bad faith.

So you have not provided any cites for all the 20th century presidents supporting your generalized assertion. (But you are in luck. I miscounted the number of 20th century presidents you have to research to support it. So your actual score is 0 down, 18 to go on the blackboard.)

Of course, "define away violations of criminal law" is begging the question. Incorrect legal construction is not the same as willful violation of a statute.

Correct. And good-faith review is not the same as bad-faith review, which is precisely what is at issue in the case of Bybee and the other Bush OLC lawyers. Once again, it is their personal, professional performance that is under examination. That is why the matter of the torture opinions, and how they came to be written, is before the Office of Professional Responsibility right now.

I am not "begging the question." I do not know what the outcome will be, or even what the next step will be. Maybe these guys will all get gold stars and a pat on the back.

Meanwhile, I will permit you to satisfy your blackboard assignment if you can even provide cites to all the cases in the administrations of all those other presidents where the OLC lawyers (or their equivalents) were even the subject of such ethics investigation over their legal opinions.

I don't believe you can. I believe this is an extraordinary situation in American legal history. It certainly is not the norm, as you so glibly claimed.

But in any event, it is not the authority of DOJ to render opinions that is remotely at issue here, so please stop repeating that "Chevron" B.S., which has nothing at all to do with this situation. (For that matter, you never even provided any of the cites requested showing that Chevron even pertains to limitations on criminal law at all. But that is really neither here nor there. It is clear that you are just making stuff up.)
4.21.2009 1:09pm
Oren:

If it shows that torture is sometimes effective, you guys are going to have to take the tougher route.

Nope, Congress has the right to ban effective procedures pursuant to their authority to regulate captures &the armed forces.
4.21.2009 1:14pm
MarkField (mail):

Mark, problem is, it seems the JD has pretty consistently done what Presidents want, no independence, quasi or otherwise. The 1/2 dozen incidents mentioned above are just what pops to mind... what about all the rest? It is the executive branch, and quite naturally, the JD will do the executive's bidding, or at least that's what we've seen historically, and in important situations, too.


I don't see much evidence of this. In any case, I doubt anyone here would know -- we don't see the cases in which OLC said "no" precisely because those lead to non-action. In the absence of knowing about these, nobody can claim that OLC, in practice, merely rubber stamps the Executive's desires.

If OLC did do so, of course, then there'd be the problem of legitimacy which I mentioned above. Nobody would or should pay any attention to it's opinion. In order for OLC to have any purpose or meaning, its advice MUST be independent.
4.21.2009 1:17pm
Richard Aubrey (mail):
Oren. Missed again. Some folks miss so often it has to be on purpose. I never said it couldn't be done. Did I? Show me where I said it coulsn't be done.
Point is, defending it to the potential victims of your esthetic sense. Stand right up there.
4.21.2009 1:19pm
Just an Observer:
My Middle Name Is Ralph: I do not find those who tortured creditable on the issue. However, I do not dismiss out of hand the idea that torture led to actionable intelligence.

Nor do I. It defies common sense. If I were being tortured, I would probably blab my head off. So I think it is unreasonable, even dumb, to assert that no information can be gained from torture.

However, I strongly suspect that the claims made by self-serving torture apologists are overstated. It would not be the first time that raw "intelligence" data was spun disingenuously -- sometimes by these same persons. Cheney and WMDs, for example.

Let's have a real investigation and probe for the truth. As I understand it, the Senate Intelligence Committee is doing just that right now.
4.21.2009 1:21pm
Oren:

Oren. Missed again. Some folks miss so often it has to be on purpose. I never said it couldn't be done. Did I? Show me where I said it coulsn't be done.
Point is, defending it to the potential victims of your esthetic sense. Stand right up there.

You said we have to defend something. We don't. We only have to insist that the executive follow the laws that Congress enacted. End of story.
4.21.2009 1:30pm
jukeboxgrad (mail):
Ralph, your valuable link got mangled, so here it is again:

What we need is an independent, bipartisan commission


======================
moore:

Water-boarding isn't torture


You and Lieberman need to explain why we called it torture when the Japanese did it. And Lieberman should explain what he knows about torture that McCain doesn't know. McCain said waterboarding is torture.

Waterboarding did produce actionable intelligence


Wrong:

K.S.M. produced no actionable intelligence


Let us know when you're in a position to show proof to back your claim.

Abu Ghraib was not within policy.


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

we would take them to the basement of the Lubyanka and give them their "nine ounces."


That's hysterically funny. Meanwhile, one of your pals has been expressing his open admiration of Soviet brutality:

Soviet brutality never failed them. Read Solzhenitsyn. Brutality never even served to delegitimize the Soviet system internally or externally.


======================
oren:

The specific claim is that the torture of KSM and MK lead to specific information on the whereabouts of another wanted man who was then arrested at that location. … This is a much stronger claim that your straw-man-version.


You're citing Weekly Standard citing a speech Bush made about how torture kept us safe. And what you describe as a "stronger claim" would indeed be a strong claim if it was true. Trouble is, it's not:

investigative journalists have found that this story -- like all the other ones attempting to justify torture -- falls apart at almost every turn


You also said this:

I should add that Hayden's facts require verifying and there are continued doubts as to the timeline.


There are more than "doubts." The story has been dismantled.

if KSM gave correct information on how to find and arrest Hambali after being tortured, that's enough for the claim that torture does not always produce unreliable information


If my aunt had balls, she'd be my uncle. We've seen no proof that KSM ever gave "correct information" about anything, either via torture or non-torture. And speaking of straw men, I don't think the claim is that it is simply impossible for torture to ever produce reliable information. And that's the straw-man claim you're implying by your use of the word "always." The claim is simply that information via torture is generally unreliable.

======================
rosetta:

it seems the JD has pretty consistently done what Presidents want, no independence, quasi or otherwise


If so, that's all the more reason to make sure that we finally put a stop to this.

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

If it shows that torture is sometimes effective


Torture is "sometimes effective" in much the same way that rolling dice will "sometimes" give a correct answer. Likewise for a device like this.

to insist on eschewing that which is--possibly on an unpredictable basis--valuable and saves American lives.


Please show proof regarding a single instance where torture has saved American lives.

defending it to the potential victims of your esthetic sense


One of the ironies of this argument is that "the potential victims" are overwhelmingly found in places like NYC, that have direct experience with terrorism and that vote overwhelmingly D. Meanwhile, the bedwetting torture promoters tend to live in place like Texas, which is probably not very high on any list of terror targets. Interesting how that works.
4.21.2009 1:36pm
jukeboxgrad (mail):
andrew:

Cheney's problem is that he thinks it will be a big win to release the mewlings of the tortured prisoners.


Obama should call Cheney's bluff and release everything. Then we can see for ourselves just how effective torture is.

the lack of any corroboration obtained by a method other than torture means 90 percent is total fucking bullshit


Hopefully you realize that a senior CIA official used those exact words to describe what we got from KSM.

Props to jukeboxgrad for catching the dishonest WSJ trope.


Thanks for the compliment. This might be a good moment to recall some of the baloney we've been fed over the years. Remember Kiriakou? What he said was widely reported. It included this (pdf):

JOHN: … You're on your back with-- your feet at a slight incline. There's some cellophane or material over your mouth. And then they pour water on this cellophane. You can't breathe. And it feels like the water's going down your throat. And then you begin choking it. It-- induces the gag reflex.

BRIAN ROSS: But the water's not actually going into your mouth?

JOHN: No.

BRIAN ROSS: Or through your nostrils?

JOHN: No. … It just feels like it is.

BRIAN ROSS: It feels like it is 'cause of the pressure onto the-- onto the cellophane.

JOHN: Correct.

BRIAN ROSS: Like a Saran wrap kind of thing.

JOHN: That's right.


Compare to this:

we understand that water may enter — and may accumulate in — the detainee’s mouth and nasal cavity, preventing him from breathing.


Not that asphyxiation via cellophane is humane. But someone apparently thought we would view it as more humane than what we actually do.

And this is what Kiriakou said about Zubaydah:

He resisted. He was able to withstand the water boarding for quite some time. And by that I mean probably 30, 35 seconds


Two years earlier, Brian Ross said this:

Zabayda … was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 [sic] seconds he begged for mercy and began to cooperate.


We now know that Zubaydah was waterboarded at least 83 times.

That darn liberal media. I wonder if Brian Ross is planning on running another interview with Kiriakou, so they can review the falsehoods they both promoted in 2007.

We were repeatedly lied to about the nature of the procedure, and about how often the procedure was used. How surprising to find that apologists for torture have no problem lying. And there is still no reason to think that we now have a complete and truthful picture.
4.21.2009 1:37pm
Oren:

But nowhere does Posner show that the Clinton-era OLC process violated the principles that Johnsen and her colleagues have articulated.

You mean the determination that the WPA did not require Clinton get Congressional approval to use military force in Serbia did not ignore the plain terms of the statute? The fact that they claimed appropriations statutes as authorization when the WPA specifically asserts that under no circumstances can an app. statute be construed as authorization?

A little bit of realism is needed here -- Clinton had the political capital to bomb Serbia in spite of Congress and he was going to do it, WPA or no WPA.
4.21.2009 1:38pm
rosetta's stones:

MarkField: "In order for OLC to have any purpose or meaning, its advice MUST be independent.



Exactly, the OLC has no purpose or meaning, because the JD sure isn't independent. Same as it ever was.

You too casually dismiss the experiences of history demonstrating the servile nature of the JD, in important situations. It's a nice little fairy tale, this concept of an independent OLC, but as you suggested earlier, it'll inevitably revert to serving the executive, in an atmosphere of competing relations, as politics and administration surely is.

Nixon had to drill way down to fire Cox, but he eventually got what he wanted done. The JD is part of the executive, and will naturally respond to that. Why fight it? Especially when 2 consecutive presidents now appear to be supporting what that OLC did here.
4.21.2009 1:42pm
MarkField (mail):

Exactly, the OLC has no purpose or meaning, because the JD sure isn't independent.


You can take this position, but then, as I said, nobody can rely on an OLC memo as a defense. Given the importance the torturers seemed to attach to receiving such a "get out of jail free" card, they don't appear to share your view.
4.21.2009 3:43pm
rosetta's stones:
Why worry about defense, if there's no prosecution? They carried out policy, and not only do Holder/Obama agree on that, they appear to be reserving the same policy.
4.21.2009 4:15pm
Richard Aubrey (mail):
Oren.
So you just point to the law and say--I have nothing to do with it.
If somebody asks why you support the law's being enforced at the likely cost of American lives, you can just shrug, I guess.
How that goes over is an interesting question.
That you refuse to address it here or in the hypothetical discussion is not going to go unnoticed. It will be taken as meaning something. Like complete lack of moral courage.
4.21.2009 4:29pm
John Moore (www):

A little bit of realism is needed here -- Clinton had the political capital to bomb Serbia in spite of Congress and he was going to do it, WPA or no WPA.

At the time of the first AQ waterboardings, Bush had the political capital to boil terrorists in oil if he so chose.
4.21.2009 5:53pm
MarkField (mail):

Why worry about defense, if there's no prosecution? They carried out policy, and not only do Holder/Obama agree on that, they appear to be reserving the same policy.


Of course there's no need to worry about a defense if there's no prosecution, but we're also having a theoretical discussion about the purpose of OLC.

Holder's statement, which I take to be the more legally precise (though perhaps less authoritative), limited the defense to those who "reasonably and in good faith" relied on the memos. Note that Holder is here giving to OLC precisely the role which your position rejects.
4.21.2009 6:35pm
rosetta's stones:
Hey, Holder can do whatever he wants, and I wouldn't expect him to walk into that building and immediately undercut his underlings. He won't, if he's smart. And that also dovetails nicely with his and Barrack's desire to reserve the policy, imo. I can drive the Afrika Corps through his statements, there's so much room, and that's what makes it boob bait.

Holder got Marc Rich off the hook, so he has about as much respect for an independent JD as my german shorthaired pointer. I wouldn't go speculating as to what his true thoughts are here, about the OLC or anything else. He's as aware of the history of the JD as you and I are, or should be at least. Independence... schmindependence. He's going to wrangle policy out of that gaggle of lawyers, same as Bush, same as it ever was.
4.21.2009 6:48pm
Just an Observer:
Today, questioned by reporters, Obama was more open to further investigation in some venue, and indicated he would defer to the attorney general on the question of prosecuting higher-ups from the Bush administration. From the Politico version, Obama open to interrogations probe:

Reversing weeks of White House resistance to the idea, President Barack Obama said Tuesday he’s open to creating a blue-ribbon panel to investigate Bush administration excesses during the war on terror.

“If and when there needs to be a fuller accounting of what took place during this period, I think for Congress to examine ways that it can be done in a bipartisan fashion, outside of the typical hearing process that can sometimes break down and break entirely along party lines, ... that would probably be a more sensible approach to take,” Obama said during an Oval Office press availability with King Abdullah of Jordan.

Obama stopped short of endorsing the “truth commission” idea, which has been advanced in recent months by Sen. Pat Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) However, his comments were markedly more positive toward the idea than those of White House aides, who have repeatedly brushed aside the suggestion.

“I’m not suggesting that that should be done but I’m saying, if you’ve got a choice, I think it’s very important for the American people to feel this is not being done — to provide one side or the other political advantage but rather it’s being done in order to learn some lessons so that we move forward in an effective way,” Obama said.

Obama also expressed concern that a fact-finding effort could evolve into a political battle that would distract the country’s security apparatus. “I do worry about this getting so politicized that we cannot function effectively and it hampers out our ability to carry out critical national security operations,” he said.

Obama indicated that while he has promised not to prosecute Central Intelligence Agency interrogators who relied on official legal advice, that amnesty does not extend to those who drafted the legal opinions authorizing the harsh interrogation tactics.

“I would say that is going to be more of a decision for the attorney general, weighing the parameters of various laws and I don’t want to prejudge that. There are a host of very complicated issues involved there.”
4.21.2009 6:55pm
John Moore (www):

Obama also expressed concern that a fact-finding effort could evolve into a political battle that would distract the country’s security apparatus. “I do worry about this getting so politicized that we cannot function effectively and it hampers out our ability to carry out critical national security operations,” he said.

No kidding. He should just keep his trap shut and let the issue die (except, of course, on TVC).
4.21.2009 7:05pm
Oren:


So you just point to the law and say--I have nothing to do with it.
If somebody asks why you support the law's being enforced at the likely cost of American lives, you can just shrug, I guess.

Because I would give the devil himself the benefit of the law.
4.21.2009 7:35pm
John Moore (www):
Which is why I think a relevant part of the discussion is what the policy expressed by the law should be, in addition to waht it currently is.
4.21.2009 7:47pm
Oren:
JPG, Adm Blair said the same thing the other day. . .
4.21.2009 9:18pm
John Moore (www):
JBG... just in case you didn't follow the link:

President Obama’s national intelligence director told colleagues in a private memo last week that the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists.


There goes one of your main arguments.
4.21.2009 9:38pm
MarkField (mail):
The fact that torture produced "significant" information is irrelevant even if true. It's no more a defense than to say that forced sodomy produced a "significant" result.
4.21.2009 10:47pm
John Moore (www):

The fact that torture produced "significant" information is irrelevant even if true. It's no more a defense than to say that forced sodomy produced a "significant" result.

It destroys the line of argument that the methods used don't work.

Furthermore, it is quite a bit more of a defense, for the simple reason that sodomy was not used.
4.21.2009 11:02pm
MarkField (mail):

It destroys the line of argument that the methods used don't work.


Torture may "work" in a particular case, but that really isn't the argument. The argument is that torture doesn't consistently and reliably lead to useful information. Sometimes you may get the truth, often you get whatever the victim thinks you want to hear regardless of truth. Short form: torture=>haystack, interrogation=>needle.


Furthermore, it is quite a bit more of a defense, for the simple reason that sodomy was not used.


It's not a legal defense in any case. It isn't much of a moral defense either.
4.21.2009 11:29pm
ddarko:
Please make reference to the statutory exception that permits torture if it "works."

Oh right. There is no such exception.

Case closed.
4.21.2009 11:36pm
John Moore (www):

Torture may "work" in a particular case, but that really isn't the argument. The argument is that torture doesn't consistently and reliably lead to useful information.

So, in this one of the only three cases where waterboarding was used, intelligence was gained which both thwarted a future plot and let to the apprehension of additional terrorists who provided more information.

But that's just useless, right?
4.21.2009 11:38pm
ddarko:
Yes it is useless. Because the torture law isn't a utilitarian calculation, as much as you apparently wish it to be. You want the law to say torture is permissible if the good outweighs the bad? Then pass the law that says that because it damn well doesn't say that now or before. Unfortunately, we have this pesky thing in this country called rule of law and having to obey these laws as they're written. It troubles you but this is one of those existential crosses one has to bear when living in a democracy.

Sorry it vexes you so much.
4.21.2009 11:44pm
jukeboxgrad (mail):
oren:

Adm Blair said the same thing the other day


Blair is having some trouble figuring out what message he wants to send. Do you realize he's released three separate statements since Thursday? On Thursday, he released two statements. One was internal (pdf), and one was external (pdf). The external release was a shortened version of the internal release. One of the sentences they chopped when preparing the memo for public consumption was this:

High value information came from interrogations in which those methods were used


The fact that he didn't want the public to hear that statement tells me that maybe he's not sure it's true. And today he issued another statement:

The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means


That's a significant statement, and it contradicts the standard Bush narrative on this subject. Because according to the standard Bush narrative, we called in the torturers only after the non-torturers failed. In other words, we tortured only after determining that the information we needed could not be "obtained through other means." But if it was true that we had tried and failed to get the information through other means, then it would be nonsense to say "there is no way of knowing whether the same information could have been obtained through other means."

So Blair isn't saying that torture is effective. Saying torture is effective means that torture gets us information we weren't going to get without torture. Blair is telling us we might have gotten the same information some other way, but apparently we didn't even try.

I think Blair is having some trouble deciding where he stands on this. A Fox columnist expressed this nicely: "Top U.S. Spymaster Has it Both Ways."

Let's release all the memos and have a complete investigation. Then we have a better shot at figuring out who's lying and who's not.

===============
moore:

There goes one of your main arguments.


There goes another instance of you demonstrating your poor reading comprehension. I've said that torture is generally not effective. Which means it's generally not going to get us information we can't more get reliably (let alone morally) through other means. Blair hasn't contradicted this.

And it's been reported that "K.S.M. produced no actionable intelligence." Do "valuable" and "actionable" mean the same thing? I'm not sure. We need to see more facts so we can find out what really happened.

It destroys the line of argument that the methods used don't work.


If I roll dice, I'll get the right answer sometimes. That's not enough to prove that rolling dice is a method that 'works.' One or two examples are not enough to prove whether or not a method 'works.' (I see that Mark said this, except more clearly.) Especially because Blair indicated we didn't start by trying non-torture.

intelligence was gained which both thwarted a future plot and let to the apprehension of additional terrorists who provided more information


Bullshit.

And this was already cited. So you're either not paying attention, or pretending to not pay attention. Both are good reasons to not take you seriously. But you've already given us lots of other reasons.
4.21.2009 11:49pm
jukeboxgrad (mail):
moore, speaking of not taking you seriously, have you read the memos? They say SERE is safe, and has led to no adverse effects, other than a small number of minor injuries. Maybe you'd like to revisit the claim you made on the other thread that a trainee was dying every year. Then again, maybe you want to claim the memos were written by liars.
4.21.2009 11:57pm
jukeboxgrad (mail):
moore:

intelligence was gained which both thwarted a future plot and let to the apprehension of additional terrorists who provided more information


Let's go back to this, because it gives us a chance to highlight a glaring contradiction. One of the memos (5/30/05, pdf, p.10) says this:

You have informed us that the interrogation of KSM - once enhanced techniques were employed - led to the discovery of a KSM plot, the "Second Wave," "to use East Asian operatives to crash a hijacked airliner into" a building in Los Angeles.


Really? How odd. Because according to Bush, that plot "was derailed in early 2002." KSM was waterboarded in 3/03.

The lesson here is that our "enhanced techniques" are so powerful they enable time travel. That's how torture in 3/03 led to the "discovery" of a plot that had already been "derailed" a year earlier.

There's another lesson, too: when you tell a bunch of fibs, it's hard to keep them all straight.
4.22.2009 1:06am
jukeboxgrad (mail):
And here's the interesting thing about time travel: a lot of Republicans believe in it. In Tuesday's WP, former Bush speechwriter Marc Thiessen says this:

Consider the Justice Department memo of May 30, 2005. It notes that "the CIA believes 'the intelligence acquired from these interrogations has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.' … Specifically, interrogation with enhanced techniques "led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. … In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.


So Thiessen is highlighting the exact passage I just cited, which says that torturing KSM prevented AQ from knocking down the Library Tower.

The dishonesty is breathtaking. Keep in mind that Thiessen "served in senior positions in the Pentagon and the White House from 2001 to 2009, most recently as chief speechwriter for President George W. Bush." The odds are fairly high that Thiessen himself wrote the speech that Bush delivered on 2/9/06, where Bush declared that the Library Tower plot "was derailed in early 2002." So it's not just that Thiessen is feeding us baloney. It's that it's virtually certain that he's well aware that it's baloney.

And he's not the only lover of time travel. At this moment, memerorandum is leading with this:

CIA Confirms: Waterboarding 9/11 Mastermind Led to Info that Aborted 9/11-Style Attack on Los Angeles


A bunch of the usual suspects are promoting that claim. None of them seem to remember what Bush said on 2/9/06.
4.22.2009 1:38am
John Moore (www):
JBG... you really got cranked up.

But as per usual, you don't provide much of interest.

For example, the SERE info from the memo in no way contradicts my statement - you know, the one where someone asked me a question, I asked, and you turned it into a three ring circus.

So go ahead, dig up biased WAPO articles and sling them around. I'd believe DarthDick Cheney first.

We have people who were involved with the program, including the Obama's CURRENT DNI saying that this produced good intel:

“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country," Blair wrote.


Your position was a little easier when you could quote "experts" who had not been present saying the techniques couldn't work. Too bad the real world caught up.

Besides, it's Cheney whose calling your bluff, by requesting (a month ago) that the memos on the results of the interrogations be declassified (odd that Obama didn't do that, isn't it).

We shall see.
4.22.2009 1:40am
jukeboxgrad (mail):
moore:

the SERE info from the memo in no way contradicts my statement


Really? Here's your statement:

How many U.S. soldiers have died during SERE training?


About one a year at the school I went to.


Here's what the Bybee memo says (pdf, p. 4):

These same techniques, with the exception of the insect in the cramped confined space, have been used and continue to be used on some members of our military personnel during their SERE training. Because of the use of these procedures in training our own military personnel to resist interrogations, you have consulted with various individuals who have extensive experience in the use of these techniques. You have done so in order to ensure that no prolonged mental harm would result from the use of these proposed procedures.

Through your consultation with various individuals responsible for such training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm. [redacted] of the SERE school, [redacted] has reported that, during the seven-year period that he spent in those positions, there were two requests from Congress for information concerning alleged injuries resulting from the training. One of these inquiries was prompted by the temporary physical injury a trainee sustained as result of being placed in a confinement box. The other inquiry involved claims that the SERE training caused two individuals to engage in criminal behavior, namely, felony shoplifting and downloading child pornography onto a military computer. According to this official, these claims were found to be baseless. Moreover, he has indicated that during the three and a half years he spent as [redacted] of the SERE program, he trained 10,000 students. Of those students, only two dropped out of the training following the use of these techniques. Although on rare occasions some students temporarily postponed the remainder of their training and received psychological counseling, those students were able to finish the program without any indication of subsequent mental health effects.

You have informed us that you have consulted with [redacted] who has ten years of experience with SERE training [redacted]. He stated that, during those ten years, insofar as he is aware, none of the individuals who completed the program suffered any adverse mental health effects. He informed you that there was one person who did not complete the training. That person experienced an adverse mental health reaction that lasted only two hours.


(Emphasis added.) Bybee is telling us that SERE is safe, with hardly any adverse results, either mental or physical. And hardly anyone ever drops out. Hmm, let's see. When CIA was describing SERE to Bybee, I wonder if they were thinking that there was no need to mention the SERE dropouts who dropped out because they were dead. Maybe they thought Bybee only cared about people going nuts, but didn't care about people dropping dead.

Meanwhile, you said once a year someone dies during SERE. I see a bit of a contradiction.

So go ahead, dig up biased WAPO articles and sling them around.


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.


I guess this is your way of admitting you're in no position to disprove any of the specific facts I've presented, directly or indirectly. Are you in a position to demonstrate any problems with the WP article I cited? I guess not. Please note that when I talk about Thiessen, I don't do the lazy thing you're doing. I don't claim he must be full of shit just because he used to work for Bush. I show proof that he's full of shit.

We have people who were involved with the program, including the Obama's CURRENT DNI saying that this produced good intel


You're really not paying attention, are you? You're simply repeating yourself without even making a pretense of trying to address what I already pointed out, which is that Blair also said this:

there is no way of knowing whether the same information could have been obtained through other means


And Blair was not "involved with the program." Before you said "just in case you didn't follow the link." You were encouraging me to read this. Have you bothered reading it yourself? I guess not. It includes the following exchange from Blair's confirmation hearing on 1/22/09:

“Do you believe the C.I.A.’s interrogation detention program has been effective?” Senator Christopher Bond, a Missouri Republican, asked him.

“I’ll have to look into that more closely before I can give you a good answer on that one,” Admiral Blair answered.


If he had been "involved with the program," it would not have been necessary for him to duck that question. Especially if he was sure that the torture had been "effective."

Your position was a little easier when you could quote "experts" who had not been present saying the techniques couldn't work. Too bad the real world caught up.


Guess what: Blair also "had not been present." That's why he ducked the question on 1/22. At the time that we were torturing these people, Blair was a private citizen working at think tanks in DC.

So please explain your basis for claiming that Blair had "been present," and had been "involved with the program."

And nice job slipping in that little straw man ("couldn't work"). No one says torture can't possibly work, ever. The claim is that it's generally less effective than other methods. Let us know when you're in a position to prove otherwise. I already explained why you need to do better than pointing at Blair.

Besides, it's Cheney whose calling your bluff, by requesting (a month ago) that the memos on the results of the interrogations be declassified (odd that Obama didn't do that, isn't it).


No. What's odd is that Cheney didn't do it himself when he could have:

If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?


Feel free to try answering that question.
4.22.2009 3:18am
Tom Perkins (mail):
@JBG per the other thread

No, you asserted that it was crap. It is counter evidence against your arguments.

And in as much as part of your argument style is to produce a blizzard of self-similar material and complain it's not all answered, I'm not at all worried or embarrassed I haven't answered every one of your redundant questions--answering one usually is also an answer for a dozen others.

But maybe you'll believe several party organs:


The Bush administration has long argued that harsh questioning of Qaeda operatives like Zubaydah helped prevent a planned attack on Los Angeles and cited passages in the memos released last week to bolster that conclusion.

It said, "The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means." From the AP.


Here's a question for you; what number, if any, of lives would need to be saved for you to feel such harsh interrogation methods would be justified.

Yours, TDP, ml, msl, &pfpp
4.22.2009 6:18am
Tom Perkins (mail):
@JBG


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


It's not ad hominem if it is true. WAPO is biased, and you do seem like Stalin to think quantity has a quality all it's own.

From the standpoint of what's true or not, it doesn't.

Take for example your dishonest deflection of criticism when you made a NYT cite by saying--entirely off the point--that it had supported Bush RE the search for WMD stockpiles in Iraq. The NYT then wasn't supporting Bush, it was supporting the Dem party establishment which in those years had for a decade previously said with Clinton that he had them and was hiding them.

Yours, TDP, ml, msl, &pfpp
4.22.2009 6:29am
mooglar (mail) (www):
I think the question asked earlier is still important here: do those arguing torture is okay if it "works", which appears to mean if it ever -- even once -- produces worthwhile intelligence, regardless of how poor the ratio of bullshit to good information is, therefore think anything is okay if it "works?" If you don't draw the line at torture, where do you draw it?

Is sodomizing a prisoner to get intelligence okay? If not, why not? Is raping a prisoner's wife in front of him okay? If not, why not? Is raping a prisoner okay? If not, why not? Is torturing and/or killing a prisoner's family in front of him okay? If not, why not? Are more barbaric torture techniques than waterboarding (the rack, the iron maiden, thumbscrews, drawing and quartering) okay? If not, why not?

Since the argument appears to be that anyone who opposes torture if it "works" is allowing Americans to die in terrorist attacks if torture isn't used, then why isn't that true for absolutely anything that could be used to get information? If raping a prisoner's wife in front of him would potentially, even if only one time in a million, obtain useful intelligence, then by the same logic not raping prisoner's wives in front of them is allowing Americans to die, right? Where is the line then? How can there even be a line?

Because the line the civilized world drew, and the United States accepted prior to 9/11, was at torture. Torture was the line past which a civilized nation could not go to obtain intelligence. But if we decide torture isn't the line, based on the "if you don't use torture Americans will die" logic, then there is really no way to redraw the line. You've eliminated it.

And I also think the point JBG and others have made needs to be highlighted again. How much of the information obtained by torture has to be "good" in relation to how much is "bullshit" before supporters of torture would be willing to admit torture is ineffective? Is it really true that if torturing people resulted in getting 99 pieces of bullshit to every one piece of useful intelligence it would therefore be justified? What about 1 useful piece to 1,000 pieces of bullshit? Or what about 1 useful piece to a million pieces of bullshit? Would torture still be justified then? Even though you would waste freakin' enormous resources running down the million bullshit leads to get one good lead? Even though such an inefficient use of resources would almost certainly take away from legimitate anti-terror efforts?

Further, how much more effective does torture have to be than other interrogation techniques before supporters of torture would be willing to abandon torture? Is there any point? If torture produced more actionable intelligence than regular interrogation, say, 50% of the time, would that be enough to justify torture? What about 25%? What about 10%? What about one time in a thousand, or one time in a million? Is there any point at which torture efficacy above regular interrogation is so low that torture supporters would agree that it would be wrong to use it? Or would torture have to never, ever, produce more intelligence than interrogation to be beyond the pale?

And there's always the "ticking time bomb" scenario. How much faster does torture have to be in obtaining information before torture supporters would be willing to abandon torture? Obviously, since we had to torture KSM dozens of times over, what, a month?, it isn't all that much faster. So, say, if torture produced information, say, 50% faster, would that be good enough to justify torture? What about 25% faster? 10% faster? What if torture were only 1% faster? Or a tenth of a percent? Or would torture have to never, ever, be even one millionth faster in order for it to be out of bounds?
4.22.2009 10:05am
Just an Observer:
Thiessen's assertions that the interrogations actually stopped an impending attack on the Library Tower do not seem to hold up because of the timeline.

See Timothy Noah's dissection in Slate.

The 2006 speech by Bush that jukeboxgrad linked to above actually presented a more complicated story than Thiessen did in his disingenuous op-ed. Here's what Bush said in context:

Their plot was derailed in early 2002 when a Southeast Asian nation arrested a key al Qaeda operative. Subsequent debriefings and other intelligence operations made clear the intended target, and how al Qaeda hoped to execute it. This critical intelligence helped other allies capture the ringleaders and other known operatives who had been recruited for this plot. The West Coast plot had been thwarted. Our efforts did not end there. In the summer of 2003, our partners in Southeast Asia conducted another successful manhunt that led to the capture of the terrorist Hambali.


Now, it may be that the interrogations under torture later did flesh out details of the plot and led to related plotters. But that doesn't sound as hard-hitting as Thiessen's assertion of cause-and-effect:

Specifically, interrogation with enhanced techniques "led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." ... In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.


Interrogation under torture probably does lead to useful informatation. But spinners like Thiessen just destroy their own credibility when they overstate the facts.
4.22.2009 10:18am
MarkField (mail):
I realize I'm piling on at this point, but...

The argument that torture "works" strikes me as not only factually dubious, but internally contradictory. The reason we have laws against crimes is precisely because they might "work" -- they may allow the perpetrator to benefit from his own wrongful conduct. That's what torture does (assuming it "works"): it allows us to benefit from our own wrongful conduct.

We don't let John Dillinger assert the defense that "of course I robbed the bank, but I got a bunch of money". That's absurd; the fact that bank robbery "works" is the very reason why bank robbery is illegal. In the same way, torture is illegal because there's a temptation to engage in conduct where I (might) benefit if you suffer. The fact that I did actually benefit is no more a defense for me than it would be for Dillinger.
4.22.2009 10:46am
rosetta's stones:
Come on, Mark. Lots of bad people suffer in prison, and lots of us benefit because they're in there.

Let's summarize what we know now:


Coercive interrogations are acceptable, and ongoing even as we speak.

Coercive interrogations are whatever the president says they are.

Barrack's boy says coercive interrogations did provide useful data, so it's not just Cheney saying that.

Barrack visited the CIA underlings and reassured them... steady as she goes, folks.

Barrack says the next action is up to the Congress or Holder, but he wants it handled responsibly. Other than that, he's done with it.

Holder is silent.

The Congress, save Conyers and a couple fringers, is silent.

The boob bait is being spread around the pond, to quiet the strident.


Meet the new boss.
4.22.2009 11:21am
jukeboxgrad (mail):
perkins:

No, you asserted that it was crap. It is counter evidence against your arguments.


What you're calling "evidence" is an assertion that torture in 3/03 "led to the discovery" of a plot that had already been "derailed" in 2/02. Feel free to explain how that makes sense.

I see now that Slate explained this issue very thoroughly here. JaO has also posted that link.

I'm not at all worried or embarrassed I haven't answered every one of your redundant questions


"Every one" of them? It's more like none of them.

It said, "The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means."


Blair's statement has already been addressed, here. It would be nice if you made a pretense of responding to what's already been said, instead of playing deaf.

Here's a question for you; what number, if any, of lives would need to be saved for you to feel such harsh interrogation methods would be justified.


James Joyner did a nice job of responding to that:

If, arguendo, doing so in this case saved 3000 lives, though, was it "worth it" in hindsight? Sure. Does that make it a good policy? No.


Even if you could show an instance where torture saved lives, and was "justified" (in some sense) in that instance, that doesn't mean torture is good policy.

Here's a question for you: can you show proof that our torture saved lives? Because there is reason to believe it will cost us lives. Joyner again:

When I was being trained on this issue as a young cadet a quarter century ago, in addition to the legal and moral factors explaining why we must treat captured enemy combatants humanely — even risking our own lives and the accomplishment of our immediate mission to safeguard them — was a practical lesson:  The other guy was a hell of a lot more likely to surrender to you if he expected to be treated well. Americans were more likely to keep fighting in Vietnam even against overwhelming odds because they knew they enemy would treat them as subhumans, whereas NVA and VC soldiers would surrender to us knowing they’d get three hots and a cot. Certainly, that proved to be the case in both the 1991 Gulf War and the 2003 invasion of Iraq; Saddam’s soldiers couldn’t throw their weapons down fast enough. That’s not likely to be the case for some time now.


And here's another reason torture costs lives:

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.


It's nice to know that you support the troops.

It's not ad hominem if it is true.


Wrong. Even if it's true, you are not "addressing the substance of the argument or producing evidence against the claim." An ad hominem argument is still an ad hominem argument even if the attack on the source is factually correct.

The NYT then wasn't supporting Bush, it was supporting the Dem party establishment which in those years had for a decade previously said with Clinton that he had them and was hiding them.


Judith Miller printed a specific lie conveyed to her by Scooter Libby (or some other Bush official). That was indeed "supporting Bush."

Take for example your dishonest deflection of criticism


What a joke. "Dishonest deflection of criticism?" You are giving us numerous excellent examples.

=================
mooglar:

Is sodomizing a prisoner to get intelligence okay? If not, why not?


moore has been asked that question multiple times, but he's been pretending to not notice.
4.22.2009 11:49am
John Moore (www):
JGB spews



Is sodomizing a prisoner to get intelligence okay? If not, why not?


moore has been asked that question multiple times, but he's been pretending to not notice.


I have said it is not acceptable. I'm not going to be drawn into yet one more long argument about the irrelevant hypothetical.

@Markfield:
The argument that torture "works" strikes me as not only factually dubious, but internally contradictory.
4.22.2009 1:44pm
John Moore (www):
@Markfield:

The argument that torture "works" strikes me as not only factually dubious, but internally contradictory.

The only reason that this is asserted is the continuous hounding from the virtue-driven crowd that torture doesn't work. To turn this around and pretend that we use it as the primary justification for "torture" is absurd.


Because the line the civilized world drew, and the United States accepted prior to 9/11, was at torture.

However, the "civilized world" and the United States disagree on the meaning of torture - the US added the words "severe" to the definition.

Furthermore, the Greatest Generation defined torture as causing significant permanent physical or psychological damage. Now it is defined down.

It's not as if there is a universal definition of torture, that is completely accepted and that has been true for all time.

If waterboarding is torture by modern definitions, then we should go back to the ones that served the "greatest generation" (WW-II), at which point it ceases to be.
4.22.2009 1:48pm
jukeboxgrad (mail):
moore:

I have said it [sodomy] is not acceptable.


Of course you have. You just haven't said why.

I'm not going to be drawn into yet one more long argument about the irrelevant hypothetical.


As has been pointed out, you're being oracular. And clearly defining the difference between torture and not-torture is hardly irrelevant. On the contrary. It's at the heart of what's being discussed. But the fact that you're not willing to make even a pretense of explaining or defending the irrational position you've taken is yet another indication that you don't expect to be taken seriously.

However, the "civilized world" and the United States disagree on the meaning of torture - the US added the words "severe" to the definition.


As usual, you're completely full of shit. The Convention against Torture begins with the following definition:

…the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…


The way you're willing to keep embarrassing yourself is truly amazing.

the Greatest Generation defined torture as causing significant permanent physical or psychological damage.


More utter bullshit. "The Greatest Generation" prosecuted the Japanese for waterboarding (pdf). Even if there was no "significant permanent physical or psychological damage."

It's not as if there is a universal definition of torture, that is completely accepted and that has been true for all time.


Waterboarding has been around for centuries, and it has been universally described as a form of torture. Claiming that waterboarding is not torture is a Bush administration innovation.

If waterboarding is torture by modern definitions, then we should go back to the ones that served the "greatest generation" (WW-II), at which point it ceases to be.


Your willingness to invent facts out of thin air is truly spectacular.
4.22.2009 5:05pm
John Moore (www):
An interesting take on torture, by a former resistance fighter, is here at my cite.
4.22.2009 10:55pm
Tom Perkins (mail):
@ JBG

And the notion we need investigations by Congress instead of investigations of Congress is exploded here. If anyone thinks anything with that kind of broad support is going to be "investigated" or "prosecuted" by anything other than successful violent revolution, they're nuts. Or if they're just saying they want that they are indulging in form of vanity.

I still can't quite wrap my head around two falsehoods propagated by JBG and others here.

1) That water was made to enter the body during water boarding as a matter of intent, as opposed to a matter of happenstance. There is a distinction there because there are actual possible medical consequences of water getting in that might require a fast intubation. Water entering in small quantities as an inadvertency, one thing; water entering as an object of the action, different thing. A similarly different thing would be an air embolism from a sodium pentothal injectiong being accidental versus on purpose, although the air embolism is very much more lethal.

2) The notion that enhanced interrogation techniques caused the abuse of prisoners. The occasional abuse of prisoners has always taken place. Unless it happened as a result of explicit orders given persuant to the policy, then they aren't related. Period. Anything else is like saying because police sometimes abuse arrestees, we should never arrest anyone.

@JBG

Which brings me to my next question.


"…the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…"


"the Greatest Generation defined torture as causing significant permanent physical or psychological damage."


If you are going to go by these definitions and your implicit argument that how a "tortured" person subjectively feels about it are relevant, that you are also--whether you mean to or not--arguing we must have no prisoners of any sort anywhere, not even incarcerees as a result of the legal process...because it is an inevitable result of confinement.

And since I'm sure you don't accept that, what you are in fact saying is not that torture is wrong, you are saying that going "this far" is always too far. And the entirety of Congress as a body disagrees, as does the better part of the American public--and certainly the ones you disbelieve your lies.

Yours, TDP, ml, msl, &pfpp
4.23.2009 7:04am
Tom Perkins (mail):
@JBG


"Your willingness to invent facts out of thin air is truly spectacular."

What is spectacular is your unwillingness not to recognize the significance of facts. The Japanese caused water to enter the lungs as a desired consequence of their waterboarding procedure, it was an outcome they wanted, not something they tried to avoid. There are both objective medical distinctions to be drawn here as well as ones of objective and subjective intent on the part of the persons doing the waterboarding.

Your willingness to say the subjective experience of the person being waterboarded makes all the difference as to whether it is torture or not is simply nonsensical.



"What you're calling "evidence" is an assertion that torture in 3/03 "led to the discovery" of a plot that had already been "derailed" in 2/02."


That's what Slate says. I do not think the timeline being drawn by the people making the claims is the one you or Slate need it to be.

Yours, TDP, ml, msl &pfpp
4.23.2009 7:28am

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