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Did Coercive Interrogation Produce Actionable Intelligence?

National intelligence director Dennis Blair maintains that the coercive interrogation techniques approved by the controversial OLC "torture memos" generated valuable, [actionable] intelligence, but this fact was initially omitted from the material released to the media in conjunction with the most recent "torture memo" disclosures. As the NYT reports:

"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," Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday. . . .

Admiral Blair's assessment that the interrogation methods did produce important information was deleted from a condensed version of his memo released to the media last Thursday. Also deleted was a line in which he empathized with his predecessors who originally approved some of the harsh tactics after the attacks of Sept. 11, 2001.

"I like to think I would not have approved those methods in the past," he wrote, "but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given."

A spokeswoman for Admiral Blair said the lines were cut in the normal editing process of shortening an internal memo into a media statement emphasizing his concern that the public understand the context of the decisions made in the past and the fact that they followed legal orders.

"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," Admiral Blair said in a written statement issued last night. "The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

As Blair notes, the fact that the relevant techniques produced actionable intelligence does not demonstrate the wisdom, morality, or necessity of resorting to such techniques. The same intelligence may have been obtainable through other means, and some interrogation techniques should be out of bounds irrespective of their utilitarian value.

Adm. Blair said he will "absolutely defend those who carried out the interrogations within the orders they were given." This qualification is important as there is reason to believe that the CIA exceeded the scope of what OLC had approved in its actual interrogations. In other words, at least some CIA operatives appear not to have acted in good faith reliance on the OLC memos. A new report further concludes that military and intelligence officials decided to rely upon coercive interrogation methods before any high-value detainees had been captured or anything had been approved by OLC.

Meanwhile, David Ignatius has a column explaining how the "torture memo" disclosures have influenced morale at the CIA. This column goes a long way toward explaining why high-ranking intelligence officials — both those who served under Bush and those currently serving under Obama — opposed the memos' release.

UPDATE: As some commenters have noted, there is some ambiguity in Adm. Blair's statement about whether the intelligence obtained through coercive interrogation techniques was "actionable" or merely "valuable." Any intel obtained through these methods could have been the latter without necessarily being the former.

Dilan Esper (mail) (www):
Everything lies at the feet of the pokicymakers.
4.22.2009 10:21am
The Unbeliever:
The same intelligence may have been obtainable through other means
Indeed. I hear the comfy chair technique is particularly effective, especially when augmented* by poking with soft cushions. Woe unto us, when we use harsher measures than these on those who attack us!


*(Other viable tools are fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope, and nice red uniforms...)
4.22.2009 10:24am
martinned (mail) (www):
While I clearly have no expertise on the question raised in the title of this post, I'd just like to point out one thing:

Admiral Blair talks about "the orders they were given". Somehow, a few lines down, the NYT turned that into "legal orders". (One hopes that was not what the spokeswoman actually said.) However much I would be reluctant to advocate prosecution for CIA interrogators on the ground, there is very little doubt that what they did was unlawful.
4.22.2009 10:30am
Bart (mail):
Blair is lying through his teeth claiming "there is no way of knowing whether the same information could have been obtained through other means." By releasing the Justice Department memos reviewing the legality of the CIA interrogation methods, Obama has made the world privy to some of the CIA reports detailing the real world effectiveness of the standard and enhanced interrogation techniques on al Qaeda officers Zubaydah and Khlaid Sheik Muhammad. As Hoover fellow Marc Thiessen noted in an op-ed in yesterday's Washington Post:

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.' . . . In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques." The memo continues: "Before the CIA used enhanced techniques . . . KSM resisted giving any answers to questions about future attacks, simply noting, 'Soon you will find out.' " Once the techniques were applied, "interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates."

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. The memo explains that "information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the 'Second Wave.' " In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

The memo notes that "[i]nterrogations of [Abu] Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al Qaeda's 'organizational structure, key operatives, and modus operandi' and identified KSM as the mastermind of the September 11 attacks." This information helped the intelligence community plan the operation that captured KSM. It went on: "Zubaydah and KSM also supplied important information about al-Zarqawi and his network" in Iraq, which helped our operations against al-Qaeda in that country...

Yet there is more information confirming the program's effectiveness. The Office of Legal Counsel memo states "we discuss only a small fraction of the important intelligence CIA interrogators have obtained from KSM" and notes that "intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of the [Counterterrorism Center's] reporting on al Qaeda." The memos refer to other classified documents -- including an "Effectiveness Memo" and an "IG Report," which explain how "the use of enhanced techniques in the interrogations of KSM, Zubaydah and others . . . has yielded critical information."

The morale in the CIA clandestine services must be plummeting with every politically motivated lie that DNI Blair is compelled to issue to placate Obama's political base that denigrates and discounts the successes of that service in rolling up al Qaeda after 9/11.

This is an administration of weasels.
4.22.2009 10:36am
nrein1 (mail):
Unbeliever, as I do not believe you are an expert on interrogations, I'll take the word of those who are. People who are experts, say methods like building trust work better then harsh physical methods.
4.22.2009 10:38am
Blue:
For me the biggest revelation of the memos is that the techniques were not used willy-nilly against a large number of detainees (some of whom would be innocent) but rather were directed against two guys who richly deserved the pain and suffering that were caused.
4.22.2009 10:38am
Torture is torture:
Blue,

It doesn't matter if the guys "deserved it"--what matters is our legal system determining whether the interrogation techniques amounted to torture. If those techniques were torture, then we can't use them.
4.22.2009 10:44am
Blue:
Of course it matters if they deserved it. It is only by ignoring the context in which the actions occured that a witch hunt is being ginned up against former officials. Did the techniques push the limit of acceptability--sure. But it is enough of a grey area that, when viewed in context, doesn't bother me in the slightest.
4.22.2009 10:47am
Bob from Ohio (mail):
He gave his true opinion in the first memo and his weasel, a** kissing opinion in the statement. Wonder what enhanced techniques O used on him?

I'm sure its just coincidence that those sentences were deleted.

Of course, this is his opinion today. Tomorrow who knows.

O's chief of staff went on the talk shows on Sunday saying no prosecutions period and then O comes out and says maybe. Later this week, that may change again.

But the secretaries at CIA cheered the great man so everything is a ok.
4.22.2009 10:48am
tsotha:
Unbeliever, as I do not believe you are an expert on interrogations, I'll take the word of those who are. People who are experts, say methods like building trust work better then harsh physical methods.

People say a lot of things for public consumption. How could anyone who's never used torture know how effective it is? And do we have even one documented case where an international terrorist spilled the beans because someone was nice to him?
4.22.2009 10:49am
einhverfr (mail) (www):
Bart:

Sorry, the CIA was full of it in that report.

In 2005, there had not been a spectacular attack by Al'Qaeda against the West? Spain evidently is not a part of the West?

If anything, major terrorist attacks connected to AQhave been INCREASING in the west since 1993. While they SEEM to have peaked in 2004-2005, it is too soon to tell.
4.22.2009 10:51am
bloodstar (mail) (www):
from slate.com:

In a White House press briefing, Bush's counterterrorism chief, Frances Fragos Townsend, told reporters that the cell leader was arrested in February 2002, and "at that point, the other members of the cell" (later arrested) "believed that the West Coast plot has been canceled, was not going forward" [italics mine]. A subsequent fact sheet released by the Bush White House states, "In 2002, we broke up [italics mine] a plot by KSM to hijack an airplane and fly it into the tallest building on the West Coast." These two statements make clear that however far the plot to attack the Library Tower ever got—an unnamed senior FBI official would later tell the Los Angeles Times that Bush's characterization of it as a "disrupted plot" was "ludicrous"—that plot was foiled in 2002. But Sheikh Mohammed wasn't captured until March 2003.


so I'm sure he really helped foil the LA plot (NOT). It's always possible there was another plot he foiled, but if the administration was so willing to talk about the first foiled plot, why go silent if they foiled another?
4.22.2009 10:52am
MarkField (mail):

How could anyone who's never used torture know how effective it is? And do we have even one documented case where an international terrorist spilled the beans because someone was nice to him?


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 10:52am
DennisN (mail):
@ nrein1


Unbeliever, as I do not believe you are an expert on interrogations, I'll take the word of those who are. People who are experts, say methods like building trust work better then harsh physical methods.


No one can say unequivocally that this technique would have worked better than that technique in a given situation. You cannot turn back the clock and repeat the experiment.

The decision to use harsh techniques was made based on the judgement of some professionals in the field and argued and debated up the line. There is indication that it worked. No, we can't prove it would have worked better than the Comfy Chair, or less well than red hot irons.

The fact that harsh techniques were used selectively, indicates that there was a judgement call made as to which techniques were actually working. Now we are left with opposing panels of self proclaimed experts arguing which tactical method might have been superior to what other technique.
4.22.2009 10:56am
Muskrat (mail):
Blair did not say the techniques produced "actionable" intelligence, only that the information provided a "deeper understanding" of Al Qaeda that was "valuable in some instances" (paraphrased by the Times as "important.") That could be "valuable in taking action X" or it could be a very nice way of saying "functionally useless but academically interesting."

If you're looking for a moral refuge in this case, Blair's letter isn't it.
4.22.2009 10:59am
tsotha:
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.


I'm not sure what you're trying to say here. My point was torture is effective in extracting information. Whether it's a good idea from a policy perspective is a totally different argument. It just irks me when people pretend we can just sidestep the moral decision because serving tea and crumpets is more likely to extract information.
4.22.2009 11:00am
einhverfr (mail) (www):
tsotha:

There are plenty of interrogation techniques which are not "nice" but are short of torture. And yes, it is possible to torture someone with cushy pillows (victim is bound and subject to partial suffocation in a manner similar to waterboarding).
4.22.2009 11:01am
Bart (mail):
einhverfr (mail) (www):

Bart:

Sorry, the CIA was full of it in that report.

In 2005, there had not been a spectacular attack by Al'Qaeda against the West? Spain evidently is not a part of the West?

If anything, major terrorist attacks connected to AQhave been INCREASING in the west since 1993. While they SEEM to have peaked in 2004-2005, it is too soon to tell.

CIA's job is to protect the United States and US interests around the world. Given that there has not been a major attack against either outside the Iraq and Afghan war zones for nearly 8 years now speaks volumes.

The fact that the EU is having trouble dealing with their Islamic fascist terrorists hardly commends the softer approach to terrorism many are urging the US to adopt.
4.22.2009 11:08am
tsotha:
There are plenty of interrogation techniques which are not "nice" but are short of torture.

Oh? I'm not convinced. Count me as one of those that thinks chaining people in stress positions and putting them naked in a really cold room is torture. It may be relatively mild torture, but if the point is to make someone uncomfortable until they break and tell you what you want to know, then probably what you're doing is torture.

But I'm okay with it. I have no problem breaking out the pliers and hot irons for people who plan and execute mass murder in my country to prove a political point. I just think if that's what we're going to do we should face up to it.
4.22.2009 11:10am
ShelbyC:
tsotha:


People who are experts, say methods like building trust work better then harsh physical methods.


Do they say that that's true in every case? Thay might be true for your average low level guy, but it's hard to imagine it would be true for KSM.

The advantage of allowing tortue (moral issues aside) is that it gives folks an oppertunity to decide on a case by case basis which works better.


einhverfr:

Sorry, the CIA was full of it in that report.


cite? I mean really, we're just supposed to say, "well, einhverfr says the CIA was full of it, so i guess that settles that.
4.22.2009 11:11am
Bart (mail):
Muskrat (mail):

Blair did not say the techniques produced "actionable" intelligence, only that the information provided a "deeper understanding" of Al Qaeda that was "valuable in some instances" (paraphrased by the Times as "important.") That could be "valuable in taking action X" or it could be a very nice way of saying "functionally useless but academically interesting."

If you're looking for a moral refuge in this case, Blair's letter isn't it.

High value intelligence is timely and actionable intelligence of the highest order. This is the intelligence we used to roll up al Qaeda cells, a small part of which is discussed in the released memos.

The information that provided a "deeper understanding" of al Qaeda is a reference to the fact that KSM provided us with over half of the information we currently possess concerning al Qaeda. This has been repeatedly reported by Cheney. Mukasey and several identified CIA sources.
4.22.2009 11:12am
A Law Dawg:
It may be relatively mild torture, but if the point is to make someone uncomfortable until they break and tell you what you want to know, then probably what you're doing is torture.


Wow. So I was right when I told my Mom that taking my Nintendo controllers away was torture.
4.22.2009 11:12am
Nathan_M (mail):

"absolutely defend those who carried out the interrogations within the orders they were given."

Ah yes, the classic and universally accepted defence of just following orders. Wait, we've never prosecuted non-Americans who were following their orders, right?
4.22.2009 11:13am
tsotha:
Wow. So I was right when I told my Mom that taking my Nintendo controllers away was torture.

Yes, but you deserved it.
4.22.2009 11:13am
tsotha:
ShelbyC, I was quoting nrein1.
4.22.2009 11:14am
Just an Observer:
While I am sympathetic to the morale of the CIA officers who feel like they have been whipsawed when the rules changed from above, it is important to remember that the root cause of this morale problem was the original flawed legal rulings from the Bush DOJ, which had to be disavowed later.

The CIA should have been given bright lines to follow in the first place, within the actual law of the land. Torture and other prisoner abuse -- including some of these practices -- are illegal. They really always were. The CIA officers were asked to put their faith in bogus OLC opinions to the contrary.

It was Cheney, Addington, Yoo, Bybee, etc. who set those CIA officers up.
4.22.2009 11:17am
Anderson (mail):
The decision to use harsh techniques was made based on the judgement of some professionals in the field

This is a common misconception.

Today's NYT article, which btw egregiously fails to credit Jane Mayer's uncovering of essentially the same facts, shows what "judgment" the "professionals" exercised.

"In Adopting Harsh Tactics, No Inquiry Into Their Past Use"

According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans. * * *

They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading C.I.A. officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce.


Really, to appreciate how bogus the whole reverse-SERE thing was from the start, you have to read the entire article (or Jane Mayer's book).

The article notes in particular that CIA had little to no "professional" expertise in interrogations (again, a point made by Mayer years ago):

When Mr. Bush assigned the C.I.A. with the task of questioning high-level Qaeda captives in late 2001, the agency had almost no experience interrogating the kind of hostile prisoners it soon expected to hold.

It had dozens of psychiatrists, psychologists, polygraphists and operations officers who had practiced the arts of eliciting information and assessing truthfulness. Their targets, however, were not usually terrorists, but foreigners offering to spy for the United States or C.I.A. employees suspected of misdeeds.


(Like Aldrich Ames -- boy, they sure smoked him out, eh?)

So I'm not buying the "professional judgment" bit.
4.22.2009 11:18am
INALbutHaveQuestions:
Here's an arguably germane memo from the CIA;
partially redacted 40 page DOJ OLC 2005 memo

Not easy to condense into an op=ed, at least by me...
INAL
4.22.2009 11:21am
Anderson (mail):
but it's hard to imagine it would be true for KSM

What makes you think that slob is some kind of superman?

Hold a guy in a boring cell, ply him with some interrogators who manipulate his egotism and get him looking forward to talking to them just b/c that's the only thing he gets to do besides count sheep and study the Qur'an ... from what we've seen of his boastful nature pre-captivity, KSM was a great candidate for spilling his guts.

I can't figure out why people think that the Qaeda guys are so wonderful -- such rugged, too-tough-to-crack hero figures. They're not. If KSM was such a fearless zealot, why didn't he fly a plane himself?
4.22.2009 11:23am
tsotha:
According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.

This is a red herring by the "torture doesn't work" crowd. It's like saying screwdrivers don't work because they can't pound in nails. Of course it doesn't work in all cases.

You have to have a way to independently verify the information you receive. If you're looking for a safehouse, and the subject gives you an address, you go to that address and see if the safehouse is there. Ditto with things like bank accounts. And of course you don't even bother asking about things the subject knows you can't check.

In KSM's case there were a lot of things we could check, both with our own people or through other intelligence agencies. So I'm not surprised they got a lot of good information off of him.
4.22.2009 11:33am
Just an Observer:
As for the original question posed in this post -- "Did Coercive Interrogation Produce Actionable Intelligence?" -- I think the reasonable answer is probably yes, but not as much as partisan spinners such as Marc Thiessen (quoted above) would have us believe.

As for just how much the coercive interrogation actually did yield, like Jack Balkin I am all for taking Cheney up on his challenge. Let's declassify all this stuff and probe for the truth.

In any case, it was still illegal.
4.22.2009 11:37am
bushbasher:
there are people here defending the use of torture. there are people crying for the morale of the torturers, or suggesting they apply the "i just followed orders" defence.

as "torture is torture" said, torture is torture. that's it. it's not a debate. you're a sick fuck or you're not. alas, america has no shortage of sick fucks.
4.22.2009 11:39am
Blue:
But torture is not just torture. There is a qualitative difference between the interrogation techniques used and true torture--ripping off fingernails, branding, electrical shocks, etc.

Sorry, standing in a cold room and waterboarding simply do not belong under that rubric.
4.22.2009 11:41am
tsotha:
Sorry, standing in a cold room and waterboarding simply do not belong under that rubric.

That's pretty subjective, isn't it? Exactly how would you codify that such that people knew, beyond a doubt, whether what they were asked to do fell under the legal definition of torture?
4.22.2009 11:46am
Anderson (mail):
There is a qualitative difference between the interrogation techniques used and true torture--ripping off fingernails, branding, electrical shocks, etc.

So the NKVD hardly ever tortured anyone?

Stalinist apologetics, live at the VC!

Really, this is the kind of thing that shows we need a truth commission. People don't know a damn thing about torture, particularly the "kind that leaves no marks."

Regardless, the Torture Act's scope pretty clearly goes beyond cattle prods and fingernail-ripping.

Though even if we'd ripped out KSM's fingernails, Cheney would be going on TV and complaining how the liberals are making a hangnail torture.
4.22.2009 11:47am
Bart (mail):
Anderson:

The fact that CIA coercive interrogation worked rather well is no longer really the subject of debate.

The fact that communists used similar, but generally far worse methods before SERE is simply guilt by association. The communists also used every single interrogation method with which you agree.

The fact that CIA had not interrogated high value al Qaeda before is neither here nor there.
4.22.2009 11:47am
Blue:
"legal definition of torture"

Don't treat the legal definition as some sort of Platonic ideal. The fact that stress positions and waterboarding fall under it (arguably) has more to do with a flaw in the law and not with any Truth.
4.22.2009 11:49am
Blue:
"So the NKVD hardly ever tortured anyone?"

The Norks also put out press releases, so I guess that makes our government just like theirs since we do that too, eh?
4.22.2009 11:50am
Guest A:
From Davis Ignatious's column:

"The lesson for younger officers is obvious: Keep your head down. Duck the assignments that carry political risk. Stay away from a counterterrorism program that has become a career hazard."

Just what we need. Send the message lound and clear that the best and brightest should avoid the assignments where we need them most.

And when did it become an agreed 'fact' that waterboarding is torture? Just a few months ago there were debates about what it entailed and whether or not it was torture, etc. Now that some time has passed the media doesn't even attempt to present the other side of the argument - they just label it as torture...the WaPo, I believe, describes it as a "near-drowning". From what I understand, it's certainly not a "near" drowning because the suspect is never really in danger of drowning. It may be a simulation of a near-drowning, but actual death is not really a possibility...and the suspects probably (almost certainly?) know that - especially after the first time.

I'm afraid that this country is already lost. We have become a nation of effete, ineffective vaginas who are simply not willing or able to protect ourselves. I'm almost tempted to join the terrorists because I'm so disgusted with this country, that doesn't possess the muscle or will to protect the 'freedom' it supposedly cherishes.
4.22.2009 11:51am
Anderson (mail):
Oy. Look at what Sullivan found on the McClatchy wire:

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document.

"There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued.

"Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."

Senior administration officials, however, "blew that off and kept insisting that we'd overlooked something, that the interrogators weren't pushing hard enough, that there had to be something more we could do to get that information," he said.


Indeed. Classic torture motivation. "She says she's not a witch, sir." "You're just not asking hard enough, are you?"
4.22.2009 11:55am
tsotha:
Don't treat the legal definition as some sort of Platonic ideal. The fact that stress positions and waterboarding fall under it (arguably) has more to do with a flaw in the law and not with any Truth.

I'm not. I'm trying to put myself in the position of a CIA or military interrogator who's been told to douse a guy with cold water and leave him with his hands and feet chained together in a cold room. Am I gonna go to jail for this later?
4.22.2009 11:55am
tsotha:
the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

Color me unimpressed. As far as we know this guy is a figment of somebody's imagination.
4.22.2009 11:57am
CDU (mail) (www):

It doesn't matter if the guys "deserved it"

In theory, perhaps, but on a practical basis it matters tremendously. If the government tries to prosecute a CIA interrogator and their case is, "the defendant tortured the man who planned the 9/11 attacks," at least one member of the jury is going to say "Good, he deserves it!" This is an aspect of Obama's decision not to prosecute that I think hasn't been discussed much. Given the identities of those who were waterboarded, it's unlikely that the government could obtain a conviction.
4.22.2009 11:57am
Christopher Cooke (mail):
One of the prime reasons cited in the August 2002 Bybee memo as to why the "enhanced interrogation techniques" discussed in the memo were not torture is the supposed lack of lasting physical or mental impact on the military personnel who experienced these techniques in the SERE training program. Yet, I heard one of the authors of the study of the SERE program state that it was scientifically inappropriate to use his results to reach that conclusion, for one simple reason: the SERE participants were in control of their torture, and could put a stop to it. This point seemed obvious to me, reading the Bybee memo. Just shows you what a farce that memo was in the conclusions that it reached.

I agree with Dick Cheney on this point: we should have an open house on all of the torture stuff: let us see what it supposedly produced and did not produce, in terms of intelligence. Maybe we should have a full blown Truth Commission, which could view this evidence and everything else.

By the way, I read news accounts saying that the application of the enhanced techniques against al Zubayda was against the interrogators' recommendations, who felt they were getting good information from him with non-coercive methods, but was done at the insistence of folks in DC/CIA HQ in Langley (unclear which). If so, this shows you that this was not a matter left to professional judgment by experienced hands. So, let us reserve judgment on everything and all ask for some sort of Truth Commission. Here is my title for the Commission: "an Open and Honest Debate on the Efficacy of Torture and the Sincerity and Competency of the Justice Department Officials who Authorized It".
4.22.2009 11:58am
Blue:
And the answer to that question, apparently, depends on whether there is a change in party at the Executive Branch. Not a good answer, surely...but the anti-Bush crowd clearly isn't thinking about the long term consequences of criminalizing policy disagreements.
4.22.2009 11:58am
Anderson (mail):

The fact that CIA coercive interrogation worked rather well is no longer really the subject of debate.

Bart, based on your efforts to ruin Jack Balkin's blog, I generally manage to ignore you -- and I wish you would return the favor -- but "really," you can save your conclusory, unsupported, egregiously false garbage for your less intelligent interlocutors.

"No longer really the subject of debate"?

GMAFB.
4.22.2009 11:58am
MarkField (mail):

I'm not sure what you're trying to say here. My point was torture is effective in extracting information. Whether it's a good idea from a policy perspective is a totally different argument. It just irks me when people pretend we can just sidestep the moral decision because serving tea and crumpets is more likely to extract information.


Yes, and my point was that the supposed "effectiveness in extracting information" is precisely why torture is illegal. That's because the temptation is always there for me to benefit if you suffer. It's pretty much the logic of all crimes. Saying "but I got information" doesn't mitigate the crime, it aggravates it. If you tell the judge "Sure I raped her, but it felt good to me", I'm guessing he's not going to reduce your sentence.
4.22.2009 11:59am
Constantin:
As for the original question posed in this post -- "Did Coercive Interrogation Produce Actionable Intelligence?" -- I think the reasonable answer is probably yes, but not as much as partisan spinners such as Marc Thiessen (quoted above) would have us believe.

As for just how much the coercive interrogation actually did yield, like Jack Balkin I am all for taking Cheney up on his challenge. Let's declassify all this stuff and probe for the truth.

In any case, it was still illegal.


(1) This answer concedes that even a spinner like Thiessen is more right than are the legions who argue that "torture doesn't work." This latter group, then, you'd find as flat-out wrong. I agree.

(2) Me too. I'm not sure Speaker Pelosi agrees.

(3) Says who? This seems to be the common thread of all of your posts, that the OLC's memos were bogus. Based on what, though? They're giving opinions on a word that isn't at all well-defined.

I'm no postmodernist. If Congress wants to pass a law that says waterboarding is illegal, I'd know what that means. They didn't, and haven't.
4.22.2009 11:59am
trad and anon (mail):
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.


Indeed. The whole point of the law is to prevent people from doing things even if they work. "I really enjoyed it" is not a defense to rape; "I made a big profit" is not a defense to selling unregistered securities without an exemption; "I saved several people's lives" is not a defense to killing someone and giving their organs to people who desperately need transplants.
4.22.2009 12:01pm
Oren:

If KSM was such a fearless zealot, why didn't he fly a plane himself?

Same reason Larry Page doesn't work tech-support -- he's more valuable in a managerial role.
4.22.2009 12:02pm
MarkField (mail):

In theory, perhaps, but on a practical basis it matters tremendously. If the government tries to prosecute a CIA interrogator and their case is, "the defendant tortured the man who planned the 9/11 attacks," at least one member of the jury is going to say "Good, he deserves it!"


Since the identity of the victim wouldn't be a defense, it's not clear how defense counsel would get this fact into evidence. Besides, I think that these days the "victim had it coming" defense lacks its former lustre.


And when did it become an agreed 'fact' that waterboarding is torture?


About 1750 or so.
4.22.2009 12:05pm
Blue:
Nonsense, MarkField. There is no agreement on that "fact."
4.22.2009 12:07pm
Anderson (mail):
Re: "torture doesn't work," the actual claim is that torture is less effective than proper interrogation methods.

I'm unaware that anyone -- certainly not me -- has said that torture never obtains valid intel.

But as Blair noted in his much-touted statement, there's no reason to believe that better interrogation wouldn't have yielded equally valid intel. And interrogators say that their intel is better than what torturers obtain. There's much less pressure for the subject to lie in order to please his questioner; torture makes a hostile relationship more hostile, rather than breaking down that hostility.

So the effort to reframe the argument as "stupid liberals say torture never works" should be seen for what it is -- dodging the real issues.
4.22.2009 12:09pm
CDU (mail) (www):

Since the identity of the victim wouldn't be a defense, it's not clear how defense counsel would get this fact into evidence.

They wouldn't even need to get it admitted into evidence. The identity of the 'victim' would be front page news for weeks leading up to a trial like this. Everyone on the jury would know quite well regardless of whether the identity was introduced at trial.
4.22.2009 12:09pm
tsotha:
Yes, and my point was that the supposed "effectiveness in extracting information" is precisely why torture is illegal.

Well, yeah, I suppose. It's a point I wasn't addressing. Quite frankly, I don't think outlawing "torture" actually buys you much from a policy perspective, since there seems to be pretty wide disagreement over exactly what the word means.
4.22.2009 12:10pm
Just an Observer:
Blue: And the answer to that question, apparently, depends on whether there is a change in party at the Executive Branch. Not a good answer, surely...but the anti-Bush crowd clearly isn't thinking about the long term consequences of criminalizing policy disagreements.

More accurately, you could say the pro-Bush crowd clearly wasn't thinking about the long term consequences of violating the law.

This is not a "policy disagreement." It is the law. Policies that violate preexisting criminal law are called "crime."
4.22.2009 12:10pm
einhverfr (mail) (www):
ShelbyC:

Did you READ the rest of my post?

Don't the subway bombings in Madrid in 2004 count as a "spectacular terrorist attack in the West?" Or is Spain no longer considered part of the "West?"

At any rate, terrorist attacks by Al Qaeda in 1993-2001 included 2 attacks in New York, one attack in Yemen, and the embassy attack. That was over 8 years.

In 2001-2005, we saw (overlap for 9/11):
1) 9/11
2) 7/7
3) Continued attacks in Yemen
4) Escallating atacks in Pakistan
5) New attacks in Iraq
6) Subway bombings
7) Serious attacks in Indonesia (Mariott bombing, the coordinated Bali/Manado bombings, the Australian Embassy attack, etc).

We saw more attacks in 4 years than we did in 8, and even if we only go through 2004, we see as many attacks in Europe and the US in that time as in the previous 8 years (1993-2001 saw 2 attacks, 9/11 through the Subway bombings saw 2 attacks).

People who think that the terrorist threat in the West subsided under Bush are simply not looking at the figures. I would expect the Central Intelligence Agency to know enough to be able to avoid saying things that are fundamentally incorrect.

Finally, there is an argument that the CIA might have just been blind. A year after the Madrid subway bombings, we saw the subway bombings in London.

Or maybe they meant "The West" as in "The Western US?" But then that would be a meaningless comparison, right?
4.22.2009 12:12pm
Blue:
You have an interpretation of the law that leads you to that POV, Observer (probably based on your political leanings). You opinion of the law =/= The Law.
4.22.2009 12:13pm
tsotha:
This is not a "policy disagreement." It is the law. Policies that violate preexisting criminal law are called "crime."

You're stealing a base there by assuming what happened was actually illegal. I'm sure some illegal acts have occurred somewhere, but was waterboarding KSM one of them?
4.22.2009 12:13pm
Bart (mail):
Anderson:

Oy. Look at what Sullivan found on the McClatchy wire: A former senior U.S. intelligence official familiar with the interrogation issue said that...

"No longer really the subject of debate"? GMAFB.

Had it ever occurred to you that you continuously rely upon anonymous sources for your arguments, while I am citing to sources who openly identified themselves and have personal knowledge of the the subject matter, including now Obama's DNI? In a court of law, your sources would not be admitted as evidence and I would win the case by summary judgment because my facts are undisputed.

For what your latest red herring is worth, given Iraq's intimate and long standing operational relationship with al Qaeda and its member terror groups of which we had partial intelligence at the time, one would hope that this relationship would have played prominently in the interrogation of KSM &Co.
4.22.2009 12:14pm
Guest A:
Dear Anderson,

Only an insecure, pretentious, limp-wristed liberal would use the word "interlocutor" in a blog comment. I understand that you and all your whiny liberal friends have this burning need to prove to the world just how smart you are, but please go take it elsewhere. And if it really gets you off to tell people to save their "conclusory, unsupported, egregiously false garbage" then I suggest you get on the phone with the New York Times as soon as possbile. You might as well save time and conference in CNN and Barney Frank while you're at it.
4.22.2009 12:15pm
Anderson (mail):
When did it become an agreed fact that humans and apes evolved from a common ancestor?

That men landed on the moon in 1969?

That 9/11 was committed by al-Qaeda, not by a U.S.-Israeli conspiracy?

That around 6 million Jews were killed by the Nazis?

Sure, it's not an "agreed fact" that any of those things occurred, if you look hard enough.

Similarly, it's not an agreed fact that waterboarding is torture. The guy in this picture doesn't seem to be tortured, I'm sure, according to some people.

I give those people about as much credence as the Holocaust deniers and the creationists. Though they resemble the former more than the latter, morally speaking.
4.22.2009 12:15pm
Jameson (mail):
Blue,

I'd love to see some support for your "flaw in the law" exemption to obeying legal constraints. ("I may have robbed a bank, but it's really just a statutory mistake!")

More generally, there seem to be two different paths to the anti-torture argument. The first is a purely moral one, i.e., torture may or may not be useful and legal but it's morally reprehensible and so shouldn't be used regardless. I tend to subscribe to this view, but I doubt it's highly convincing to many people here.

The second is a pragmatic argument, which has a few different versions. The first is the "not useful" argument, which makes the claim that torture is not a useful means of interrogation because it leads to false confessions or erroneous information, and/or could be substituted with another interrogation methodology which would be at least as effective. There is some conflict over this argument, largely because 1) not many people have credible credentials to be able to make this, 2) there is a lot of conflicting information from Bush administration supporters which attempts to argue that some "high-value" information was obtained using torture, and 3) these aren't controlled experiments, so you can't determine how substitutable a methodology might be for any specific person.

I don't personally view these as major problems for the anti-torture crowd, because A) those who are experienced interrogators have largely come down against the methods used; B) we have no actual data on what the information received was nor how it might have been used. The fact that any dissent exists here (among intelligence community individuals) is not unprecedented, but the fact that dissent creates a heckler's veto is not per se evidence that it is valid - just ask the flat-earthers. But obviously, your mileage may vary.

A second argument for pragmatists concerns the legal validity of the methods use. The argument here is similar to the moral one, in that it doesn't matter whether or not something works because using it is against the law (and presumably, the law must be either followed or changed). I frankly don't see a lot of useful support for the argument that the law can really be ignored - although some people do make the argument that the law can be ignored if the people doing so are willing to face the legal consequences for their actions.

Rather, the counterargument here often seems to concern the very definition of torture. There's been a lot of discussion as to whether or not method X constitutes "torture." As far as I can tell, the legal definition is something along the lines of "inflicting severe mental or physical pain" on others, which includes pain, mind-altering drugs, methods which are "calculated to disrupt the senses," the threat of death, etc. from the ratified UN treaty on the subject. I can understand a specific methodology being up for a little debate, but dismissing waterboarding as a "bubble bath" as some commenters have on this site seems both silly and obviously facile.

Again, I'm personally unconvinced by opponents of the pragmatic argument for torture, as it seems to me that a preponderance of support comes down on the side of the anti-torture crowd. Arguments like the flaw in the law one, however, are counterproductive, because they're obviously not a strong argument.
4.22.2009 12:15pm
Thales (mail) (www):
"You're stealing a base there by assuming what happened was actually illegal. I'm sure some illegal acts have occurred somewhere, but was waterboarding KSM one of them?"

Quite possibly. Even if legal by some stretch in the abstract [the question of the torture memos, answered without competent engagement with contrary legal authorities], the sheer number and frequency of waterboarding may well have carried it past the point of legality.
4.22.2009 12:16pm
Oren:


I'm no postmodernist. If Congress wants to pass a law that says waterboarding is illegal, I'd know what that means. They didn't, and haven't.


Even more damning (although I believe as a factual matter that the pain accompanying waterboarding is "severe" within the meaning of 18USC2340), Congress did not assign authority to promulgate regulations on what constitutes torture under 18USC2340 -- they just left it as a free-floating directive. In most other legislation (broadly generalizing) there is language like (e.g. CAA) "the EPA admin will make regulations for pollutants ...".

Not only did Congress write a statute that is impossible to get right (even if Bybee proved that it's fairly easy to get completely wrong), they didn't even tell us who or how to try to get it right.
4.22.2009 12:18pm
Anderson (mail):
Only an insecure, pretentious, limp-wristed liberal would use the word "interlocutor" in a blog comment.

This is at least as obviously true as it's true that waterboarding isn't torture. I'm sorry you're offended that some of the people on here have advanced degrees, read and write for a living, and occasionally talk that way, too.

As for Bart, it's sweet of you to speak up for him, but I think he can handle himself. And there are several people here who commented at Balkinization, back when one could do so on a regular basis, who are more knowledgeable about Bart than you evidently are.
4.22.2009 12:19pm
ShelbyC:

ShelbyC, I was quoting nrein1.

my bad.


Anderson:

Re: "torture doesn't work," the actual claim is that torture is less effective than proper interrogation methods


It seems to me that to make the case against torture for practical reasons, as opposed to moral ones, you have to show that's it's less effective in every case, correct? There's nothing that requires interrogators to use torture if it's less effective.

Guest A:

And when did it become an agreed 'fact' that waterboarding is torture?


It is a painful physical procedure that induces people that are highly motivated to withhold information to reveal that information in order to make the procedure stop. Is there anything that fits those criteria that isn't torture?
4.22.2009 12:19pm
Adam J:
tsotha- Color me unimpressed. As far as we know this guy is a figment of somebody's imagination. Good plan, disregard any evidence that disputes your version of the facts. After all, the media is just a left wing propaganda machine...
4.22.2009 12:20pm
Bart (mail):
Anderson (mail):

But as Blair noted in his much-touted statement, there's no reason to believe that better interrogation wouldn't have yielded equally valid intel. And interrogators say that their intel is better than what torturers obtain. There's much less pressure for the subject to lie in order to please his questioner; torture makes a hostile relationship more hostile, rather than breaking down that hostility.

1) The disclosed memos noted that Blair's other options had been tried and failed. Indeed, FBI had Zubaydah for weeks and came up with nothing but religious lectures.

2) The purpose of these interrogations was to obtain timely actionable intelligence to roll up al Qaeda before the cells realized they had been compromised and redeployed, not to fill classified reports weeks or months later. Interrogations that do not produce timely actionable intelligence are by definition unsuccessful.
4.22.2009 12:20pm
CDU (mail) (www):

Don't the subway bombings in Madrid in 2004 count as a "spectacular terrorist attack in the West? Or is Spain no longer considered part of the "West?" "

Spain is part of the West, but compared to 9/11, the Madrid bombings weren't really that spectacular. Bombings killing hundreds of people have happened plenty of times before and since. The Madrid attacks were tragic, but not exceptional.
4.22.2009 12:21pm
MarkField (mail):

Nonsense, MarkField. There is no agreement on that "fact."


I'm sure you can find people who insist the earth is flat, too. That doesn't make it any less a fact that the earth is round.


I don't think outlawing "torture" actually buys you much from a policy perspective, since there seems to be pretty wide disagreement over exactly what the word means.


There's a statutory definition, the same kind of definition we use for most crimes (compare, say, "the unlawful killing of a person with malice aforethought"). Of course there will be arguments made by defense counsel, but that hardly means there's widespread disagreement. Human language isn't capable of the precision some are demanding; there'd be no crimes if we had to define them all in such a way as to apply specifically to every case.


They wouldn't even need to get it admitted into evidence. The identity of the 'victim' would be front page news for weeks leading up to a trial like this. Everyone on the jury would know quite well regardless of whether the identity was introduced at trial.


Maybe, but I think you're overestimating the extent to which the average juror follows the news.
4.22.2009 12:21pm
martinned (mail) (www):

And when did it become an agreed 'fact' that waterboarding is torture?

How about in 1995, whene the Federal District Court ruled in In Re Estate of Marcos Human Rights Litigation, saying:


During those detentions the plaintiffs experienced human rights violations including, but not limited to the following:

(...)

5. The “water cure”, where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation;

(...)

All of these forms of torture were used during “tactical interrogation”, attempting to elicit information from detainees concerning opposition to the MARCOS government.

910 F.Supp. 1460, D.Hawai‘i, November 30, 1995. The quote is from page 1463.
4.22.2009 12:25pm
Anderson (mail):
It seems to me that to make the case against torture for practical reasons, as opposed to moral ones, you have to show that's it's less effective in every case, correct?

I don't think so. I can find a wall stud by tapping gently or using a sensing device, or I can just start driving nails. (Difficult tho that is for the limp-wristed.) The latter will be equally effective ... some of the time. But it's still practical to rule it out in advance.

Ron Suskind notes in The One Percent Doctrine that, after threatening to kill or rape a guy's children, there's really not much you can say to him after that. Torture risks foreclosing other forms of interrogation that rely on building trust (or the illusion of trust) with the subject.

Personally, I find it very difficult to imagine someone who would be impervious to psychology-based interrogation, but would spill everything after one session on the waterboard. A total coward might fit the bill, but IIRC, even the Army interrogation manual allows some ploys that take advantage of fear w/out crossing the line into torture.

(FWIW, I am not one of those who thinks "bug in a box" was necessarily torture; the 1984 parallel got much play, but the rats really would have eaten Winston's face. I think it was a cruel trick that would impair effective interrogation, but I doubt it was torture.)
4.22.2009 12:28pm
Guest A:
Holy crap - Anderson, can you please go online and check the schedule for the next train that can take you out of Crazy Town? You just compared people who debate whether waterboarding is torture to f*@%ing holocaust deniers. Have you ever heard of apples and oranges? You cannot compare a person who, in good faith, debates whether a certain practice falls under a legal or moral definition of torture (which is basically legal or philosophical analysis and a topic about which many reasonable people can and do disagree) to a presumably bad faith denial that certain factual events occurred (about which reasonable people cannot, and do not, disagree).

You also provided a link to *a painting* as evidence that waterboarding is torture. Are you so stupid that you don't understand that an artist's depiction of an event is art precisely because the artist injects his subjective interpretation of the event into the depiction? Jesus Christ, man.

The sad thing is you and your liberal cronies actually believe this crap. This is why we are so screwed.
4.22.2009 12:31pm
Xanthippas (mail) (www):

Blair is lying through his teeth claiming "there is no way of knowing whether the same information could have been obtained through other means." By releasing the Justice Department memos reviewing the legality of the CIA interrogation methods, Obama has made the world privy to some of the CIA reports detailing the real world effectiveness of the standard and enhanced interrogation techniques on al Qaeda officers Zubaydah and Khlaid Sheik Muhammad.


You cite as evidence OLC memos that merely recite CIA claims with no substantiation, and a story about Mohammed and the Library Tower attack that has been debunked.

This is your best argument for torture? "Weasels" indeed.
4.22.2009 12:35pm
Xanthippas (mail) (www):
Also, I'm not at all sympathetic to arguments that we should protect the CIA's sensitive "morale" by keeping their dirty laundry a secret. Any reader of Tim Weiner's "Legacy of Ashes" will understand that what the CIA need is less, not more, freedom to act.
4.22.2009 12:38pm
Muskrat (mail):
Bart writes:


1) The disclosed memos noted that Blair's other options had been tried and failed. Indeed, FBI had Zubaydah for weeks and came up with nothing but religious lectures.

2) The purpose of these interrogations was to obtain timely actionable intelligence to roll up al Qaeda before the cells realized they had been compromised and redeployed, not to fill classified reports weeks or months later. Interrogations that do not produce timely actionable intelligence are by definition unsuccessful.

(emphasis added)

So, according to you, a) weeks passed since his capture while Zubaydah was questioned ineffectually, then b) he was coerced into talking in a "timely" manner -- i.e., before weeks had passed since his capture. Uh-huh.
4.22.2009 12:38pm
rosetta's stones:

"The sad thing is you and your liberal cronies actually believe this crap. This is why we are so screwed."


Relax, Guest A.

Barrack and Holder are busily affirming coercive interrogations as policy. They may be tailoring the policy a bit, but the basic policy remains in place. And if a future administration chooses to tailor the policy to other lines, I'm sure they will do so.

That's what's done in our Republic, re policy issues.
4.22.2009 12:39pm
Anderson (mail):
I'm sorry, Guest A -- is the painting an inaccurate depiction?

You cannot compare a person who, in good faith, debates whether a certain practice falls under a legal or moral definition of torture (which is basically legal or philosophical analysis and a topic about which many reasonable people can and do disagree) to a presumably bad faith denial that certain factual events occurred (about which reasonable people cannot, and do not, disagree).

You assume that whether a given act is torture or not is debatable, in all circumstances. So, to borrow someone's example above, forcibly pulling out someone's fingernails, against their will, with the goal of inflicting severe pain to make that person confess, isn't necessarily torture -- that's a matter for legal or philosophical analysis.

I don't think so. I think it just is torture.

There are methods which I think are debatable, such as sleep deprivation (which is definitely a torture method, depending on the degree of deprivation and the combination w/ other methods) -- but perhaps that's a matter of establishing the fact raised in my parentheses.

Waterboarding, by definition, is making someone feel like he's drowning, and making the feeling so realistic that he'll confess what he wouldn't confess otherwise. That's torture. If you don't think that's torture, you don't understand the word "torture."

There's slightly more room to debate whether it's covered by the Torture Act, but if someone persuaded me it's not so covered, I would conclude that the Torture Act fails to prohibit one method of torture -- not that waterboarding isn't torture.
4.22.2009 12:40pm
Just an Observer:
Constantin: (1) This answer concedes that even a spinner like Thiessen is more right than are the legions who argue that "torture doesn't work." This latter group, then, you'd find as flat-out wrong. I agree.

I can't generalize refutations about about every argument anyone else ever makes, and I am not responsible for what "legions" might say. I have said elsewhere that it does not seem reasonable to argue that torture never produces information. (I think I would blab if I were tortured.)

(2) Me too. I'm not sure Speaker Pelosi agrees.

I could care less whether Pelosi agrees. If she is politically embarrassed by full disclosure -- including disclosure of details of whatever she was briefed on, if such records exist -- then so be it. Since I am not a Democrat, I am not motivated to protect her hide.

(3) Says who? This seems to be the common thread of all of your posts, that the OLC's memos were bogus. Based on what, though? They're giving opinions on a word that isn't at all well-defined.

There are processes that can review that, perhaps. Some of them are called courts. Others are called special counsels. Maybe we'll see. The first step, still pending, is the internal Office of Professional Responsibility investigation.

If you think the interrogations were all legal, no doubt you look forward to some prosecutions so the courts can uphold your view, and everyone will be vindicated.
4.22.2009 12:40pm
tsotha:
Good plan, disregard any evidence that disputes your version of the facts. After all, the media is just a left wing propaganda machine...

I disregard everything sourced anonymously. It's simply too likely the source either doesn't exist or has his own ax to grind. That includes sources saying something I want to hear, by the way.
4.22.2009 12:42pm
Oren:

If you think the interrogations were all legal, no doubt you look forward to some prosecutions so the courts can uphold your view, and everyone will be vindicated.

How about a truth-commission-style inquiry with the same broad powers as a prosecution but no penalties. Worked pretty well for S. Africa and their security services did far worse things ....
4.22.2009 12:44pm
Bart (mail):
Muskrat:

Zubaydah was not able to provide much actionable intelligence because of how late in the game the serious interrogation began. He did manage to provide intelligence that allowed us to capture another al Qaeda who did provide timely and actionable intelligence to capture KSM, who in turn gave up most of al Qaeda to the CIA.
4.22.2009 12:47pm
Oren:

I disregard everything sourced anonymously. It's simply too likely the source either doesn't exist or has his own ax to grind. That includes sources saying something I want to hear, by the way.


Hmm, I tend to weight the anonymous administration official pretty strongly, because he/she wouldn't be anonymous if he was telling me something the higher-ups wanted me to hear. I'm not saying I believe him over the attributed comments, but I like to hear as much as possible before making a decision.
4.22.2009 12:48pm
Blue:

Waterboarding, by definition, is making someone feel like he's drowning, and making the feeling so realistic that he'll confess what he wouldn't confess otherwise. That's torture. If you don't think that's torture, you don't understand the word "torture."



There you go again, assuming that your particular view of the definition of "torture" somehow has probative truth value.
4.22.2009 12:49pm
CDU (mail) (www):

Hmm, I tend to weight the anonymous administration official pretty strongly, because he/she wouldn't be anonymous if he was telling me something the higher-ups wanted me to hear.

Really? My impression is that most anonymous administration sources aren't saying things their bosses don't want you to hear. They're saying things their bosses don't want to be officially connected with. I think this sort of strategic leaking is far more prevalent than true leaks.
4.22.2009 12:52pm
Oren:
CDU, very true. I'm not saying that no skepticism is warranted, but there are very good reasons to at least listen.
4.22.2009 12:54pm
Just an Observer:
Blue: You have an interpretation of the law that leads you to that POV, Observer (probably based on your political leanings). You opinion of the law =/= The Law.

Interpretation of the law was legitimately the job of OLC. But that was a legal, advisory, adjudicatory function similar to that of a judge. That is not a "policy" function.

What is on the front burner right now, with respect to those OLC opinions, is not just whether they were objectively right, but whether they were rendered in good faith and followed the processes and principles that OLC lawyers were ethically obliged to honor.

None of that is just a matter of a "policy disagreement" as you glibly claim. OLC lawyers don't make "policy" when they issue opinions. They make law.

BTW, You probably should not refer to me here as "Observer," which is the moniker of another commenter who occasionally posts at VC, and he may not appreciate being accused by mistake of partisanship. Best to call me Just an Observer, or JaO for short. And my "political leanings" have nothing to do with this.
4.22.2009 12:56pm
Anderson (mail):
particular view of the definition of "torture"

My *particular* view? Dictionaries seem to agree that inflicting pain on someone to make him do something is torture.

Am I supposed to believe that tying someone down with a damp rag over his nose and mouth, and making him gasp for breath as if he's about to drown, isn't painful? Or is the dodge "not *severely* painful"?

If it weren't severe, it wouldn't be effective, on the torturer's own argument. Is waterboarding supposed to be mildly uncomfortable? Why is it so effective, then? Are terrorists like cats, with a special aversion to water?
4.22.2009 12:59pm
Oren:

OLC lawyers don't make "policy" when they issue opinions. They make law.

The determination of whether method X causes severe pain is not a legal question. It's not even the same category of legal thinking (abstract v. empirical).
4.22.2009 1:00pm
tsotha:
What is on the front burner right now, with respect to those OLC opinions, is not just whether they were objectively right, but whether they were rendered in good faith and followed the processes and principles that OLC lawyers were ethically obliged to honor.

How could you possibly determine that? I realize there are people who think everything everyone in the Bush administration did was done in bad faith but for the rest of us maybe you can say how you intend to get inside, for example, Yoo's head to know if he really believed what he was writing.
4.22.2009 1:00pm
tsotha:
OLC lawyers don't make "policy" when they issue opinions. They make law.

OLC lawyers make law? That's news to me.
4.22.2009 1:01pm
Anderson (mail):
Re: anonymous sources, I credit them to the extent that they agree with the known facts. Some skepticism is warranted re: *any* source. And there are obvious reasons why many of these people would seek anonymity.

However, I'm not satisfied with that state, which is one reason I keep pushing for a truth commission that will get all this on the record, allow cross-examination, etc.
4.22.2009 1:01pm
Blue:

None of that is just a matter of a "policy disagreement" as you glibly claim. OLC lawyers don't make "policy" when they issue opinions. They make law.


Well if they "make law" and they said these techniques aren't torture, then QED they are not torture. And when Holder "makes law" and says that this was torture, than QED it is tortue.

Ooops. Your legalistic approach has led to a paradox.
4.22.2009 1:03pm
Oren:

Or is the dodge "not *severely* painful"?


The OLC memos did, in fact, concede that most of the methods cause pain. Just not enough pain to be "severe" and therefore are not forbidden by 18USC2340.

My opinion (not quite solidified) is that, abssent Congressional clarification what the hell the modifier "severe" means, there is no way we can get the various sides of this debate on the same page. I don't know if that word in the English language has enough semantic content to make the distinctions you guys are making. It's like a rorschach.
4.22.2009 1:03pm
tsotha:
So, Anderson, are stress positions torture?

Cold rooms? If so, how cold, and at what humidity?

Is bad food torture? Fake menstrual blood? Bare breasts?

Where do you draw the line?
4.22.2009 1:04pm
Just an Observer:
tsotha: OLC lawyers make law? That's news to me.

Then consider yourself educated. OLC opinions such as these are considered binding law within the executive branch. That is why they will apparently excuse the actions of CIA officers who followed them in good faith.
4.22.2009 1:04pm
Blue:

Am I supposed to believe that tying someone down with a damp rag over his nose and mouth, and making him gasp for breath as if he's about to drown, isn't painful? Or is the dodge "not *severely* painful"?


Panic is not pain. Panic is panic.
4.22.2009 1:06pm
MarkField (mail):

How about a truth-commission-style inquiry with the same broad powers as a prosecution but no penalties. Worked pretty well for S. Africa and their security services did far worse things ....


I'm not a fan of this idea. It made sense in South Africa, where both sides were guilty of abominable acts and someone needed to run the government. They were trying to get to a situation in which the rule of law could begin to take effect, and the only solution was to declare a general amnesty.

In the US, however, we have a tradition of the rule of law. We're not trying to establish it, we have functioning courts and a highly developed process available.
4.22.2009 1:07pm
CDU (mail) (www):

It's like a rorschach.


I don't know about that. Rorschach seemed to have a pretty settled opinion on torture.
4.22.2009 1:08pm
tsotha:
Then consider yourself educated. OLC opinions such as these are considered binding law within the executive branch.

Binding law, or administrative rules? Are you saying an incorrect OLC opinion actually changes the law on the books? That nobody can be prosecuted for something OLC says is okay? Where is the OLC clause in the constitution?
4.22.2009 1:09pm
Anderson (mail):

The sensation of drowning is not purely mental, as anyone knows who's come anywhere near it. Panic is physical.

Happily, the Torture Act, even tho bastardized from the CAT language, covers this:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality
Making someone feel like he's about to drown doesn't cause "suffering"? It's not a "threat of imminent death"?

Oren has tried to find wiggle room in "severe," but drowning probably fits the vast majority of folks' definition of a "severe" sensation. If not that, then what?
4.22.2009 1:11pm
Bart (mail):

How about a truth-commission-style inquiry with the same broad powers as a prosecution but no penalties. Worked pretty well for S. Africa and their security services did far worse things ....

This was performed after the war by two groups of citizenry in the same country to achieve political reconciliation.

In contrast, we are at war with a foreign enemy with whom no sane person wants to reconcile. The only result of a public disclosure of our intelligence on al Qaeda would be to provide al Qaeda an even larger intelligence coup than the Obama Administration has already provided the enemy.
4.22.2009 1:12pm
Oren:

Panic is not pain. Panic is panic.

I've almost drowned (funny story really), and the burning sensation that results from acidification of the blood in your lungs ( CO2 + H20 /--\ H2CO3 (carbonic acid) ) is quite severe. It quite literally feels like your lungs are being burned from within.

Also, 18USC2340 specifically includes the modifier "physical or mental" in front of "severe pain or suffering".
4.22.2009 1:12pm
INALbutHaveQuestions:
Getting Specific;

This came from page 6 of the previously linked 40 page DOJ OLC memo.
Here's a reference to the yield from the disputed acts;

Rolling Up the Guraba Cell, tasked with 'The Second Wave'

Courtesy of Doug who has now posted text from the 40 page memo here...

Probably worth reading before we commence the arguments phase...

INAL
4.22.2009 1:13pm
Anderson (mail):
In the US, however, we have a tradition of the rule of law. We're not trying to establish it, we have functioning courts and a highly developed process available.

Oh, a commission is faute de mieux, definitely.

Wait -- can I use that phrase in a blog comment? Guidance, please!
4.22.2009 1:13pm
Blue:
BTW, here's my proposed dividing line for torture-

Would you consent to use of a particular technique on yourself in exchange for something of moderate value?
4.22.2009 1:13pm
Anderson (mail):
Yglesias:

As Cato Vice President Gene Healy says “Imagine if, shortly after 9/11, someone had told you that the US government would adopt an interrogation policy based on Chinese Communist techniques designed to elicit false confessions. You’d have thought that person was pretty cynical.” But that’s what they did. Really. SERE training is designed to help stiffen soldiers’ resistance to the sort of torture the North Vietnamese used to “break” John McCain and force him to “confess” to all manner of crimes. It specifically arises out of the experience of American detainees in the Korean War to imitate tactics applied by Communist regimes for the purpose of deriving false confessions. And why shouldn’t it? That’s what torture is good for.
4.22.2009 1:14pm
CDU (mail) (www):
Would you consent to use of a particular technique on yourself in exchange for something of moderate value?


The problem is that some folks actually pay people to use some of these techniques on them.
4.22.2009 1:15pm
einhverfr (mail) (www):
CDU:

Spain is part of the West, but compared to 9/11, the Madrid bombings weren't really that spectacular. Bombings killing hundreds of people have happened plenty of times before and since. The Madrid attacks were tragic, but not exceptional.


The CIA didn't say "Exceptional" they said "spectacular."

I suppose you could say in January of 2001 that by that same logic, that Clinton must have prevented spectacular terrorist attacks on his watch too..... Foiled millenium plot and all.....

In the end, the public evidence is against the idea that we have any basis to say we have had any additional success at all.
4.22.2009 1:15pm
Anderson (mail):
Would you consent to use of a particular technique on yourself in exchange for something of moderate value?

Then I suggest writing to your congressman to have the law changed.
4.22.2009 1:15pm
Blue:
Waterboarding is certainly not "threat of imminent death" because the participant is not, you know, about to be killed. His body may reflexively react that way but that is not the same thing.
4.22.2009 1:16pm
tsotha:
So we go from arguing about what "torture" means to arguing about what "moderate" and "severe" mean. I don't see that as being any less subjective.
4.22.2009 1:16pm
Just an Observer:
tsotha: How could you possibly determine that? I realize there are people who think everything everyone in the Bush administration did was done in bad faith but for the rest of us maybe you can say how you intend to get inside, for example, Yoo's head to know if he really believed what he was writing.

It is not as if determining intent, good- or bad-faith, etc. is an alien concept in legal process. There are methods to probe that, generally involving what lawyers quaintly call "evidence."

We have not seen the OPR investigation, but press-reports have indicated that its methodology includes such things as reviewing earlier drafts of the memos, and emails between DOJ and the White House that might indicate the OLC lawyers were being unduly influenced by political policymakers (such as Cheney or his staff) for desired results rather than focusing on the law and facts before them. I presume that OPR investigators can question persons involved. They might ask, for example, why Bybee's two OLC memos did not bother to mention prior war crimes prosecutions of waterboarders, even if to distinguish them. If there ever is another step prior to prosecution or bar discipline, there could be grand juries or other sworn testimony. Like I said, evidence.
4.22.2009 1:18pm
Oren:


Oren has tried to find wiggle room in "severe," but drowning probably fits the vast majority of folks' definition of a "severe" sensation. If not that, then what?

(1) Read my 1:12.
(2) I'm not trying to find wiggle room, I'm making three points about what Congress did:

(a) Congress did not intend to forbid all forms of interrogation that cause pain, only the subset that cause severe pain.
(b) Congress did not tell us who has responsibility or by what method to determine the factual (NOT LEGAL) question of whether a proposed interrogation method meets the standard in 18USC2340.
(c) Even accepting the problem of (b), it's not clear to me that the semantic content of the modifier "severe" is sufficient for an objective determination. It's inherently relative term, an intensifier without a comparison. One cannot help but think that what one thinks is "severe" is not based solely on the interrogation method itself (as opposed to being informed by, say, the detainee being interrogated or the value of the information that might be gained).
4.22.2009 1:19pm
einhverfr (mail) (www):
Oren:

I've almost drowned (funny story really), and the burning sensation that results from acidification of the blood in your lungs ( CO2 + H20 /--\ H2CO3 (carbonic acid) ) is quite severe. It quite literally feels like your lungs are being burned from within.


To back up your point, the law seems to be written to ban things like long-term sleep deprivation as well. In fact anything calculated to "disrupt the senses and personality" is explicitly torture under the statute.

This means that use of sleep deprivation outside of certain limits IS TORTURE under US Law. Whether the Army Manual exceeds those limits is an entirely different question (and presumably the answer is "No").

Also I have almost drowned too once, maybe not as close as you as my lungs didn't hurt (but I was nearly unconscious when I managed to crawl onto the shore, also a funny story). And I will say that there is a PROFOUND disruption of senses and personality that happens there too.
4.22.2009 1:20pm
tsotha:
Anderson, what do false confessions have to do with anything?
4.22.2009 1:20pm
Oren:


Would you consent to use of a particular technique on yourself in exchange for something of moderate value?

I've seen video on the internet (I'll spare you the links) of men dismembering their own genitals (like, all the way off) and skewering them with nails and so forth for relatively little (imo) remuneration. This leads me to believe this is not a good standard. Torture-porn is a huge industry (the NYT did a magazine article about Kink.com a while back).
4.22.2009 1:22pm
Just an Observer:
tsotha: Binding law, or administrative rules? Are you saying an incorrect OLC opinion actually changes the law on the books? That nobody can be prosecuted for something OLC says is okay? Where is the OLC clause in the constitution?


The OLC, acting on authority delegated from the attorney general (who also is not mentioned in the Constitution, but is in the Judiciary Act of 1789) has a duty pursuant to the President's duty under Article II to "take care that the laws be faithfully executed."

As for OLC in its current form, its opinions do have the force of law within the executive branch. See MEMORANDUM FOR ATTORNEYS OF THE OFFICE:

Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned. The value of an OLC opinion depends on the strength of its analysis. Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers.


Consider yourself further educated.
4.22.2009 1:31pm
geokstr (mail):
So far everyone on the "hang Cheney" side is demanding that their opponents prove a negative, which is of course impossible, i.e., prove that you couldn't have gotten the same intel or better with (totally undefined) more civilized methods. OK, let me turn it around - you prove that you could have.

And no one seems willing to tell us what these much more highly effective methods are except that they are not anything that might have the least effect of making the suspect uneasy, uncomfortable, or the least bit insecure. But hey, they work with crack pushers and pimps who are not suicidal for their religion, so making friends and sharing a brewski or two will undoubtedly work on jihadis too.

I say simply tell them that if they don't talk, they will get a life sentence shoveling slop on a pig farm. That will guarantee that they can't ever get their virgins, and wouldn't harm a hair on their heads. But if that was the least bit effective, I'm sure it would be defined as torture too.

einhverfr:
We saw more attacks in 4 years than we did in 8, and even if we only go through 2004, we see as many attacks in Europe and the US in that time as in the previous 8 years (1993-2001 saw 2 attacks, 9/11 through the Subway bombings saw 2 attacks).

Einhverfr, you are saying that X amount of attacks proves that the intel was ineffective. I would ask you to prove that if we hadn't gotten the intel we did and/or forced the fanatics to fight in Iraq instead of having their assets freed up to come here that we would not have had (X + Y)squared number of attacks on the West instead. In case you didn't notice until Bush was elected, the jihad has been going on for decades already, but as our new Fearless Leader has abjectly confessed to the entire world, it's all our own fault too.

The fact that the entire civilized world is under vicious attack, both from within and without, by an implacable horde whose religion promises them huge rewards in heaven if they take lots of little infidel kids with them when they blow themselves up seems not to concern folks on the left one whit. Better to eat our own than stop them, or actually do something contructive to help other than submit.

And in most cases, the same people who deny us any means of self-defense against this are the same ones who believe that off-shore drilling is also evil, so that we will even have to keep funding the jihad against us.

If we are not willing to make even small compromises to defend our culture from being overrun, but they are happy to do anything it takes to kill us, eventually, we will lose. The demographics are not in our favor. You can then claim to have held the moral high ground as they take you off to the gallows and your preteen daughters are forced to marry their captors.

The only reason I'm happy to be as old as I am is because I won't live long enough to have to watch that happen.
4.22.2009 1:32pm
wolfefan (mail):
Hi Blue -

What do you make of US policy (and court decisions) that for years have held that waterboarding is torture? One was referenced above, and although IANAL I am told that there are others dating back 100 years. I'm also told that US soldiers have been held accountable for waterboarding by US tribunals. Since I'm at work I'm not able to do much research to provide citations, but I am sure others here could do so if needed.

Perhaps whether waterboarding or not is not a settled issue now, but it seems to have been pretty settled up until a few years ago when the Bush administration decided to unsettle it.
4.22.2009 1:32pm
MarkField (mail):

How could you possibly determine that? I realize there are people who think everything everyone in the Bush administration did was done in bad faith but for the rest of us maybe you can say how you intend to get inside, for example, Yoo's head to know if he really believed what he was writing.


Lots of ways. Using the memos' own internal logic, see here.

Or, you might consider the McClatchy report today that the reason for the torture was not to obtain intelligence regarding future attacks, but to show a connection between AQ and Iraq as part of the run-up to the war.

The legal analysis itself is so weak that it leads many people to believe the memos were written not as an independent analysis, but to reach a foregone conclusion.

There may also be other evidence we haven't yet seen bearing on the good faith of the authors (pro or con). That's why we need an investigation.
4.22.2009 1:33pm
tsotha:
As for OLC in its current form, its opinions do have the force of law within the executive branch.

Either you're being disingenous or you don't understand what you're quoting. The law is different within the executive branch? There's a big difference between "force of law" and a policy directive. You can be jailed for breaking the law, but not for breaking policies. All that memorandum is saying is "this is how we're interpreting the law, and if you want to work here you will too", which doesn't at all relieve government employees from following the law.

You could make the argument people following the OLC memo were acting in good faith, which would make them harder to prosecute, but as a matter of law good faith is no protection from prosecution.

At least try to be correct when you seek to educate other people.
4.22.2009 1:43pm
Just an Observer:
Blue: Well if they "make law" and they said these techniques aren't torture, then QED they are not torture. And when Holder "makes law" and says that this was torture, than QED it is tortue.

Ooops. Your legalistic approach has led to a paradox.


That still is not "policy." It is law.

And there is another little detail in our system. We have things called "courts," which ultimately might trump the intra-branch opinions rendered by OLC. (That is why OLC has a duty to bind itself by court precedent, and give the utmost deference to how courts might rule.)

This is how law is supposed to be done there. It is not supposed to just adopt "policy" because the vice president thinks waterboarding or chaining prisoners to the ceiling is a good idea.
4.22.2009 1:44pm
Richard Aubrey (mail):
Good. So, Anderson notwithstanding, the argument has moved from "torture never works" to "what is torture when it works?"
Pretty soon somebody will be attempting to quantify the degree of damage we as a society must be prepared to suffer as the cost of foregoing torture. Then going public with it.
Good step.
Couple of interesting points; Apparently, the al Q training is that you give it your best shot--to save your soul--and then it's okay to talk.
And one definition could be torqued to cover anything being done at all--no torturers need apply--if the guy starts talking after having said he wouldn't. Because, after all, you "broke" him. If you hadn't "broken" him, he wouldn't be talking, see?

More than one person has said that if a dem were president, the WOT would be going better because the dems and the left wouldn't be reflexively obstructing it.
O will do this, call it something else, and everybody will be happy.
4.22.2009 1:45pm
David Drake:
The comments in this thread lead me to the conclusion that very few of you have actually read the memos, let alone the statute. I encourage you to do so, particularly those who take the position that (a) what was done was "torture" or that waterboarding or any other interrogation technique is ipso facto torture or (b) no alternative interrogation techniques were tried before the methods described in the memos.
4.22.2009 1:48pm
My Middle Name Is Ralph:
Those who tortured say it produced good intelligence. those opposed to torture say it is ineffective (as well as illegal and unethical). We should appoint a bipartisan committee to investigate our use of coercive techniques to fully examine all the evidence and report back.
4.22.2009 1:52pm
zuch (mail) (www):
Prof. Adler:
Did Coercive Interrogation Produce Actionable Intelligence?
Perhaps. Perhaps not. Maybe nothing that couldn't be or wasn't uncovered otherwise. Maybe also false and/or injurious information (see, e.g., the al-Libi "confession" used to justify invading Iraq).

But it's of no legal consequence. The torture statutes (18 § 2340 et seq.) make no provision for a defence of utility or "necessity" (and the CAT explicitly rules such out).

Cheers,
4.22.2009 1:53pm
My Middle Name Is Ralph:
@ David Drake, I've read the memos and the statute and don't see how any reasonable person could say waterboarding is not torture.
4.22.2009 1:57pm
martinned (mail) (www):

But it's of no legal consequence. The torture statutes (18 § 2340 et seq.) make no provision for a defence of utility or "necessity" (and the CAT explicitly rules such out).

@Zuch: Actually, that is a question that I'd like to see addressed by one of the more thoughtful conspirators in a blog post: Can a necessity defence validly be ruled out in a statute? If memory serves, there have been posts about the related question of banning self-defence, but that one is more tricky for a variety of reasons, not in the least because such posts were usually written with the 2nd amendment in mind.

My tentative view is that a necessity defence should only be allowed in exceptional circumstances, given that CAT purports to rule it out, but that it would be a violation of the laws of nature, etc., to forbid the necessity defence accross the board.
4.22.2009 2:02pm
Oren:

But it's of no legal consequence. The torture statutes (18 § 2340 et seq.) make no provision for a defence of utility or "necessity"

The defense of utility (or necessity) is a common-law one, applicable to all criminal and civil statutes unless the legislature explicitly says otherwise.
4.22.2009 2:03pm
My Middle Name Is Ralph:
zuch, I think the question of whether torture was, on balance, a net positive for the US is a highly important question for society going forward. You are of course correct that it is irrelevant for the legal question of whether what was done constitutes torture. But, there is a large segment of the population who believe in the 24 model of fighting terrorism. When the US is next struck by a terrorist attack (and it almost certainly will happen sometime), there will be political pressure to "take off the gloves." Relying on the argument that it is illegal or unethical will not be persuasive for many. I'd rather face the argument head on and examine whether any intelligence benefit of using torture was worth the enormous cost. I'm confident that a fair examination of all the facts will be a resounding "no." But, no one really knows and certainly there is no public consensus. We should appoint a bipartisan commission to examine all the evidence and report back.
4.22.2009 2:05pm
Ken Arromdee:
In the same way, torture is illegal because there's a temptation to engage in conduct where I (might) benefit if you suffer.

Putting someone in jail lets us benefit by someone suffering. By that reasoning, we should never put anyone in jail.
4.22.2009 2:06pm
einhverfr (mail) (www):
geokstr:

What I am saying is that there is no reason to believe (outside of the Bush Administration's say-so) that our security and anti-terrorism activities were any more effective at preventing attacks under Bush than under Clinton. This is true DESPITE capture of high-level AQ leaders.

I think this exposes a major crack in the argument that torture is effective at thwarting terrorist attacks. Now obviously the problem is that we don't know for sure that another approach would have been more effective, but we CAN take the data we do have and make the best use of it we can.

Here is another example....

Nearly two thousand years ago, Ptolomy wrote his Almagest. In it he addresses the shape of the earth based on data regarding astronomical events. He concluded that the earth was a sphere based on the changing elevation of the sun as one goes north/south, and the changing times of lunar eclipses as one goes east/west.

Now, based on Ptolomy's evidence, it might be entirely possible that the earth was half a sphere. We might even argue that the portion of the earth that Ptolomy was familiar with had sphere-like attributes but that one couldn't generalize to the rest. However, the best use of the data he had lead to the correct result (or at least an approximately correct result).

Similarly here we cannot know what is hidden from our view, but the fact that we can see stories about major terrorist plots thwarted under both Clinton and Bush, that there doesn't seem to be a major difference in frequency between the more severe sets of these, and that actual terrorist activity is INCREASING under Bush (so we expect more plots foiled), we would be quite correct in concluding that the relative success of Bush in fighting terrorism compared to Clinton is relatively low. This doesn't fundamentally preclude data outside our observation, but it seems to my mind that it makes it less likely.
4.22.2009 2:08pm
martinned (mail) (www):

We should appoint a bipartisan commission to examine all the evidence and report back.

Is it actually possible in this day and age to appoint such a committee (or a truth committee) without the whole thing splitting neatly along party lines?

It occurred to me recently how odd (disappointing?) it is that Bush v Gore went 5-4. Given the importance and political sensitivity of that case, one would expect the Chief Justice to tell the others that he wouldn't let them out of the conference room until they'd figured out a way to make the ruling unanimous, even if that did mean a watered down excuse for a ruling.

Is there anyone left in the US who is capable of genuine non-partisanship?
4.22.2009 2:10pm
Oren:


My tentative view is that a necessity defence should only be allowed in exceptional circumstances, given that CAT purports to rule it out, but that it would be a violation of the laws of nature, etc., to forbid the necessity defence accross the board.

(1) What the CAT says is irrelevant, it's not self-effecting and therefore is entirely subsumed by the Torture Act.

(2) Legislatures can generally limit common-law defenses by statute, provided that they are not integral to some other particular right.
4.22.2009 2:10pm
My Middle Name Is Ralph:

The defense of utility (or necessity) is a common-law one, applicable to all criminal and civil statutes unless the legislature explicitly says otherwise.


Isn't necessity a personal defense? I do not believe there is such a thing as a national necessity defense in the common law. I thought the portion of the Yoo memo arguing for a necessity defense was one of the most ridiculed portions of the memo. It certainly was withdrawn and not repeated in the later torture memos. So, unless you want to argue the absurd proposition that the CIA operatives had to torture to protect themselves from attack by the person being tortured, I don't see how necessity applies.
4.22.2009 2:11pm
Oren:

Is there anyone left in the US who is capable of genuine non-partisanship?

Chuck Hegel springs to mind.



In the same way, torture is illegal because there's a temptation to engage in conduct where I (might) benefit if you suffer.



Putting someone in jail lets us benefit by someone suffering. By that reasoning, we should never put anyone in jail.

There is the whole "incident to lawful sanctions" clause ...

It's not like the drafters of 2340 were totally brain-dead.
4.22.2009 2:13pm
einhverfr (mail) (www):
Oren:

The defense of utility (or necessity) is a common-law one, applicable to all criminal and civil statutes unless the legislature explicitly says otherwise.


Wouldn't ratification of CAT (which explicitly rules this out) make such a defence harder even though CAT is not self-executing?

I am not saying the defence never could be raised, but it seems to me that there would be difficulties in doing so in this particular case.
4.22.2009 2:13pm
PC:
Panic is not pain. Panic is panic.

You have never had a panic attack, have you? I can assure you panic is pain. Real physical pain.
4.22.2009 2:17pm
My Middle Name Is Ralph:

Is it actually possible in this day and age to appoint such a committee (or a truth committee) without the whole thing splitting neatly along party lines?


A fair question. I thought the 9/11 Commission worked in a bipartisan manner without splitting along party lines.
4.22.2009 2:18pm
Just an Observer:
tsotha: Either you're being disingenous or you don't understand what you're quoting. The law is different within the executive branch? There's a big difference between "force of law" and a policy directive. You can be jailed for breaking the law, but not for breaking policies. All that memorandum is saying is "this is how we're interpreting the law, and if you want to work here you will too", which doesn't at all relieve government employees from following the law.

I undertand exactly what I quoted. The memo accurately stated that "OLC opinions are controlling on questions of law within the Executive Branch." That is binding law for executive branch actors until a court says otherwise, or the OLC opinions change.

Now, you may be right that executive branch employees can still be prosecuted if they follow OLC advice that the courts ultimately reject. But as a practical matter, I think the employees would have a very strong defense.

There are those critics who argue (not me) that such a defense would be less than ironclad. The jam that the CIA employees are in -- assuming they stayed within the four corners of the OLC advice -- is they must worry that those critics (and you) just might be right. However, Obama and Holder have openly promised that no such prosecutions will occur.

The underlying problem for the CIA officers is that they were given advice, interpeting the statutes, that almost certainly could not hold up in court on the merits. Our CIA officers would have been much better off if the unsupportable OLC opinions had never been issued. It was the authors of the memos, and the political handlers such as Bush and Cheney, that put the officers into jeopardy.
4.22.2009 2:20pm
martinned (mail) (www):

(1) What the CAT says is irrelevant, it's not self-effecting and therefore is entirely subsumed by the Torture Act.

What CAT says is certainly relevant for the question of how to write that Act.


(2) Legislatures can generally limit common-law defenses by statute, provided that they are not integral to some other particular right.

That would seem to be the nuts &bolts answer. I was actually more philosophically inclined. Presumably people should not be punished for behaviour that they could not have avoided. That is why we don't prosecute someone for assault if he got thrown out of a window and lands on someone walking by. While the necessity defence can be approached narrowly or broadly, at its narrowest it refers to acts that either literally or at least morally could not have been avoided.

For example, Cicero discussed a hypothetical of two shipwrecked sailors floating in the ocean hanging from a piece of wood that has insufficient buoyancy to keep them both above water. He argued that if one of them shoves the other one off so that he drowns, there is no case for manslaughter because of the defence of necessity. Quite aside from whether one can find a constitutional clause to rest this conclusion on (5th/14th due process clause?), it is interesting to consider whether the legislator should be able to abolish this defence.
4.22.2009 2:22pm
Oren:

Wouldn't ratification of CAT (which explicitly rules this out) make such a defence harder even though CAT is not self-executing?

When a treaty is implemented by statute, only the statute is controlling.
4.22.2009 2:22pm
PC:
The defense of utility (or necessity) is a common-law one, applicable to all criminal and civil statutes unless the legislature explicitly says otherwise.

Then investigations and prosecutions should be no problem. An affirmative defense is valid in the cases where interrogators gained actionable intelligence from their crimes. It seems to be the part of 24 that people keep missing: Jack Bauer has always been willing to be held accountable for his actions.
4.22.2009 2:25pm
Ex parte McCardle:
I've really been impressed by Guest A's contribution to this discussion. And he leads by example: nothing demonstrates dauntless courage like pseudonymous blog-posting.
4.22.2009 2:26pm
Oren:


What CAT says is certainly relevant for the question of how to write that Act.


But the Act, having already be written, lacks any language removing the common-law defense of necessity. For me, that's as far as I need to look.


While the necessity defence can be approached narrowly or broadly, at its narrowest it refers to acts that either literally or at least morally could not have been avoided.

Not as I understand it -- necessity is a defense to an act that can be avoided but ought not to in order to preclude a greater harm. For instance, if two people are walking in the mall and one has a heart attack, the other companion can smash the window of a store that has a defibrillator and assert the defense the act (property damage) was less bad that the consequences of not acting (increased risk of death or serious brain damage). Certainly he could have avoided doing so and waited for paramedics, but if he is charged (or sued) for property damage, he can assert the defense of necessity.

There are some limitation the danger cannot be one of the defendant's creation, the unlawful activity must cease as soon as possible, the choice as to which outcome is the lesser of evils is a jury-question ...
4.22.2009 2:29pm
Adam J:
Tsotha- I disregard everything sourced anonymously. It's simply too likely the source either doesn't exist or has his own ax to grind. That includes sources saying something I want to hear, by the way.

Well, if everyone felt the way you do Nixon would never had been caught. Some skepticism is always healthy, but disregarding an article simply because its based on anonymous sources is just dumb. Government's bad acts would just remain hidden from the public. Here, there's plenty of evidence the neocons were deadset on proving a link between AQ &Iraq, and this certainly fits into that pattern.
4.22.2009 2:32pm
Oren:

Then investigations and prosecutions should be no problem. An affirmative defense is valid in the cases where interrogators gained actionable intelligence from their crimes.

No, it requires that the jury believe them that they reasonably thought they would get actionable intelligence. In my hypothetical from above, even if the heart-attack victim dies, it's still an affirmative defense against the charge of smashing my way to a defibrillator that I had an objectively reasonable belief that defib would decrease the chance of serious injury/death.

See, e.g. People of NY v. Gray:

The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude (see 1 CJI N.Y.P.L. 35.00, Introductory Comment at 848-849). The same basic standards should apply in cases where defendants assert the justification defense defined by Penal Law 35.05(2).

[ ... SNIP ... ]

To apply a strict liability standard in evaluating the other elements of this defense, however, and to find that only those actors who have actually averted a greater harm may avail themselves of the defense, is inconsistent with the law of justification in New York, as well as necessity's basic purpose to promote societal interests.
4.22.2009 2:34pm
PC:
No, it requires that the jury believe them that they reasonably thought they would get actionable intelligence.

Fair enough. So we need to get a special prosecutor appointed to investigate.
4.22.2009 2:39pm
Oren:

So we need to get a special prosecutor appointed to investigate.

Do you have something against the US Attorney in DC?
4.22.2009 2:49pm
PC:
Do you have something against the US Attorney in DC?

Personally? No. But I would prefer someone that could act independently of the executive so there's no political taint (if only the DoJ could be considered separate from the president -- novel, huh?).

I'm not big on witch hunts, but there is plenty of evidence that crimes may have been committed so an investigation is warranted. If we are going to go down this road the person in charge should be free to act without any political pressure.
4.22.2009 2:57pm
Oren:

if only the DoJ could be considered separate from the president -- novel, huh?

Better start writing up that Constitutional amendment to create a fourth branch of government ...
4.22.2009 2:59pm
Thales (mail) (www):
"Better start writing up that Constitutional amendment to create a fourth branch of government ..."

Yeah, or, you know, revive the independent counsel statute that has been found constitutional.
4.22.2009 3:05pm
Anderson (mail):
Waterboarding is certainly not "threat of imminent death" because the participant is not, you know, about to be killed.

"You know" that, but I fail to see how KSM did.

Even if he knew they didn't *mean* to kill him, the fear that they would get overexcited surely was on his mind.
4.22.2009 3:05pm
jukeboxgrad (mail):
adler:

The same intelligence may have been obtainable through other means


I think it's important to notice that Blair directly contradicted his predecessor. Blair said "there is no way of knowing whether the same information could have been obtained through other means." That statement is in direct contradiction with a claim made by DNI McConnell, who said we used waterboarding only in the following circumstances: "Situations where there’s been interrogation over a period of time. It was unsuccessful. Water boarding was used and then information started to flow."

According to McConnell, we do indeed know that "the same information could [not] have been obtained through other means." According to McConnell, we resorted to waterboarding only after exhausting other methods.

Only one of them is telling the truth, and the evidence seems to support Blair. We arrested KSM on 3/1/03. And we waterboarded him 183 times in 3/03. That indicates we didn't spend much time on "other means."

David Ignatius has a column explaining how the "torture memo" disclosures have influenced morale at the CIA.


Ignatius mentions that CIA employees are now worried about 'career hazards.' Huh? As a commenter at WP put it: yes, torture should be a "career hazard." Ignatius said this:

The lesson for younger officers is obvious: Keep your head down. Duck the assignments that carry political risk. Stay away from a counterterrorism program that has become a career hazard.


Actually, the lesson is simpler than that: Don't commit war crimes, even under the cover of specious "legal" reasoning. (Also borrowed from a commenter at WP.)

===================
bart:

Blair is lying through his teeth claiming "there is no way of knowing whether the same information could have been obtained through other means." … The disclosed memos noted that Blair's other options had been tried and failed.


You are repeating McConnell's line, that we had attempted non-torture "over a period of time." Please explain how there could have been any significant "period of time," given that we arrested KSM on 3/1/03 and waterboarded him 183 times in 3/03.

Given that there has not been a major attack against either outside the Iraq and Afghan war zones for nearly 8 years now speaks volumes.


The WTC was first hit about a month after Clinton took office. We then went through the rest of Clinton's term (almost 8 years) without suffering another domestic attack (unless you want to claim that Timothy McVeigh is part of the vast Islamofascist conspiracy). And Clinton managed to do it without bankrupting us by spending money we didn't have on a war we didn't need.

So how did Clinton keep us safe? By playing saxophone and eating hamburgers. And Bush harmed us by failing to do those things. Isn't it interesting that the worst domestic terrorist attack in our history didn't happen until after the saxophone left the White House?

You might want to put some thought into "Lisa Simpson’s Tiger-Repellant Rock."

The information that provided a "deeper understanding" of al Qaeda is a reference to the fact that KSM provided us with over half of the information we currently possess concerning al Qaeda. This has been repeatedly reported by Cheney. Mukasey and several identified CIA sources.


You have low standards with regard to what you define as "information." Yes, torturing KSM was a great success:

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.”


Yes, torture is a great idea if you want to generate lots of bullshit.

given Iraq's intimate and long standing operational relationship with al Qaeda


This claim was explicitly repudiated by the Senate Intelligence Committee (when it was still controlled by Republicans). They concluded this (pdf):

Conclusion 1: ... Postwar findings indicate that Saddam Hussein was distrustful of al-Qa’ida and viewed Islamic extremists as a threat to his regime, refusing all requests from al-Qa’ida to provide material or operational support. ... Saddam distrusted Islamic radicals in general, and al-Qa’ida in particular. ... bin Ladin attempted to exploit the former Iraqi regime by making requests for operational and material assistance, while Saddam Hussein refused all such requests. ... Saddam issued a general order that Iraq should not deal with al-Qa’ida.


And this:

In 2005, the CIA assessed that prior to the war, "the regime did not have a relationship, harbor, or turn a blind eye toward Zarqawi and his associates." ... [p.92]

Conclusion 5: ... Postwar information indicates that Saddam Hussein attempted, unsuccessfully, to locate and capture al-Zarqawi and that the regime did not have a relationship with, harbor, or turn a blind eye toward Zarqawi. [p. 109]


There was no "intimate and long standing operational relationship with al Qaeda." And the study you cited as support says so (pdf, p.15):

This study found no "smoking gun" (i.e., direct connection) between Saddam's Iraq and al Qaeda.


You are distorting the contents of that study. What a surprise.

===================
blue:

For me the biggest revelation of the memos is that the techniques were not used willy-nilly against a large number of detainees (some of whom would be innocent) but rather were directed against two guys who richly deserved the pain and suffering that were caused.


You're making a few mistakes. The "techniques" were used against more than "two guys." Waterboarding was used against three persons (if we trust that the CIA has given us complete information; not necessarily a wise thing to do). Other torture techniques were used against a bunch of other people. For example, according to Crawford, we tortured Qahtani. And no one is claiming he was waterboarded.

two guys who richly deserved the pain and suffering that were caused


You're doing a nice job of calling attention to the fact that the real point of torture is punishment, revenge, and generating false confessions. Not getting information. And that's why we didn't mind that most of what was produced was "total fucking bullshit."

But torture is not just torture. There is a qualitative difference between the interrogation techniques used and true torture--ripping off fingernails, branding, electrical shocks, etc. … Sorry, standing in a cold room and waterboarding simply do not belong under that rubric.


There's a long history (pdf) of US courts treating waterboarding as a form of torture. We called it torture when the Japanese did it. Claiming that waterboarding is not torture is a Bush administration innovation.

Waterboarding is certainly not "threat of imminent death" because the participant is not, you know, about to be killed.


Waterboarding is a form of asphyxiation. Asphyxiation leads to death 100% of the time, for 100% of humans, if sustained for just a few minutes. The whole point of the procedure is to make the victim feel like he is "about to be killed." That is the natural reaction to the experience of asphyxiation. Feel free to explain why any captive should feel particularly confident that his captors might not go a little too far. Considering the numbers of prisoner deaths which our military ultimately classified as homicides, such confidence would be highly irrational.

===================
tsotha:

do we have even one documented case where an international terrorist spilled the beans because someone was nice to him?


Do we have even one documented case where torture saved lives?

I have no problem breaking out the pliers and hot irons


Tell us again what makes you different from our enemies?

I'm sure some illegal acts have occurred somewhere, but was waterboarding KSM one of them?


We called it torture when the Japanese did it.

what do false confessions have to do with anything?


There is a long history of torture generating false confessions. Ever hear of al-Libi? And torturing KSM led to this: "total fucking bullshit."

===================
guest:

when did it become an agreed 'fact' that waterboarding is torture?


We called it torture when the Japanese did it.

actual death is not really a possibility


Actual death is a certainty, if the procedure is sustained for even a relatively short period of time.

Only an insecure, pretentious, limp-wristed liberal would use the word "interlocutor" in a blog comment.


You would have loved Michael B. Did he get banned? Haven't seen him in a while. What a shame.

===================
shelby:

to make the case against torture for practical reasons, as opposed to moral ones, you have to show that's it's less effective in every case


Wrong. Imagine that I need to make a major decision regarding cancer treatment. I can consult a world-renowned expert, or I can consult a Ouija board. So I submit my question to both. They provide very different answers. I decide to reject the former and embrace the latter. I end up with an extremely good outcome. And it is discovered in the course of my further treatment (as the facts of my condition become clearer) that the advice of the expert would have definitely produced an inferior outcome. Very possible, right?

Note that in this case, the expert was unquestionably "less effective" than the Ouija board. But any rational person is still against relying on a Ouija board "for practical reasons." Even though there has been a distinct failure "to show that's it's less effective in every case."

The practical (aside from moral and legal) problem with torture is that it's generally not very effective (some proof is here). Likewise, a Ouija board is not generally an effective way to make decisions. Even though it's right sometimes.

Relying on an occasional success story as a reason to prefer torture (on a practical basis) is exactly as rational as reacting the same way to an occasional success story regarding a Ouija board.

And aside from that, there is a distinct absence of impressive success stories. I'm still waiting to see proof that torture ever saved a life.

===================
INALbutHaveQuestions:

Rolling Up the Guraba Cell, tasked with 'The Second Wave'


The passage you're citing is making a claim that's been decisively debunked. And the debunking has already been cited in this thread.

Probably worth reading before we commence the arguments phase...


Probably worth reading the thread before you put your foot in your mouth.

===================
drake:

The comments in this thread lead me to the conclusion that very few of you have actually read the memos, let alone the statute.


I have actually read the memos and the statute.

particularly those who take the position that (a) what was done was "torture"


Feel free to explain why waterboarding was torture when the Japanese did it, but not when we did it.

alternative interrogation techniques were tried before the methods described in the memos


Help me find the part of the statute where it says that torture is OK if you tried something else first. And please explain how much time we spent on "alternative interrogation techniques," given that we arrested KSM on 3/1/03 and waterboarded him 183 times in 3/03.

===================
ralph:

I thought the portion of the Yoo memo arguing for a necessity defense was one of the most ridiculed portions of the memo. It certainly was withdrawn and not repeated in the later torture memos.


FWIW, I think there's stuff in the latest batch of memos that looks like an attempt at a necessity defense. For example, see Bradbury 5/30/05, p. 37. He's admitting that we call this stuff torture when other countries do it. But he says that's OK, because we really need to do it: we're only doing it because it's "necessary to protect against grave terrorist threats [and for reasons of] similarly vital government interests." That is, they (other countries) don't have a good reason to do it, but we do. Isn't that a (feeble attempt at a) necessity defense?

===================
oren:

Chuck Hegel springs to mind.


I agree. I think there are other people in that category, like Jim Baker. These are Republicans who are respected by non-Republicans. Trouble is, they're not respected by Republicans (i.e., the putrid remnant that seems to be in control of the party currently).
4.22.2009 3:07pm
Anderson (mail):
utility (or necessity)

That's quite an "or."
4.22.2009 3:09pm
Anderson (mail):
Chuck Hegel springs to mind

Like Chuck Hagel, but much, much harder to understand, even in the original German.
4.22.2009 3:12pm
whit:

This is an administration of weasels.


that is almost as good a title for a book as pj orourke's "parliament of whores"
4.22.2009 3:15pm
zuch (mail) (www):
martinned:
[zuch]: But it's of no legal consequence. The torture statutes (18 § 2340 et seq.) make no provision for a defence of utility or "necessity" (and the CAT explicitly rules such out).

@Zuch: Actually, that is a question that I'd like to see addressed by one of the more thoughtful conspirators in a blog post: Can a necessity defence validly be ruled out in a statute? If memory serves, there have been posts about the related question of banning self-defence, but that one is more tricky for a variety of reasons, not in the least because such posts were usually written with the 2nd amendment in mind.
A defence of "necessity" (or worse yet, "utility") is not the same as a defence of self-defence. Regardless, the Second Amendment does not act as an implicit right of "self-defence" in any trial for murder, what anyone here says to the contrary notwithstanding. Self-defence is a common law or statutory construction and varies considerably from state to state. And the application of "self-defence" to the treatment of detainees in custody (as Yoo did) is absurd; no one would argue that a right to self-defence would allow police to torture a suspect in custody in order to elicit information concerning other gang members still at large (who might possibly be considering killings in the future) -- but that would be the equivalent in a domestic setting.
My tentative view is that a necessity defence should only be allowed in exceptional circumstances, given that CAT purports to rule it out, ...
... when CAT rules out "[any] exceptional circumstances whatsoever"?!?!?
... but that it would be a violation of the laws of nature, etc., to forbid the necessity defence accross the board.
Why? That being said, the CAT doesn't rule out "self-defence". But torture is not "self-defence".

Cheers,
4.22.2009 3:20pm
PC:
"You know" that, but I fail to see how KSM did.

He probably figured it out after the 183rd waterboarding.
4.22.2009 3:22pm
Bob from Ohio (mail):

I thought the 9/11 Commission worked in a bipartisan manner without splitting along party lines.


Totally different. As you can see from thread alone, this issue is very divisive and controversial.

Who appoints the commission members? Who staffs it? What are the rules?

It will be dominated by those who have already prejudged all possible issues against the prior administration. Decisions first, hearings afterwards.

My personal view is that any so-called republician or "conservative" who accepts appointment is by that fact alone too tainted to trust. (Chuck Hegal, please, he retired for a reason.) I'm not alone in that judgment.
4.22.2009 3:23pm
Anderson (mail):
He probably figured it out after the 183rd waterboarding.

The 2005 memos demonstrate that CIA became more aggressive over time, pouring more water over his face than represented in the 2002 Bybee memo.

So no, I don't think KSM was shrugging off waterboarding # 183. He may well have been wondering whether this was the time that he wasn't going to live through it. Or hoping as much, for that matter.
4.22.2009 3:25pm
MarkField (mail):

Actually, that is a question that I'd like to see addressed by one of the more thoughtful conspirators in a blog post: Can a necessity defence validly be ruled out in a statute? If memory serves, there have been posts about the related question of banning self-defence, but that one is more tricky for a variety of reasons, not in the least because such posts were usually written with the 2nd amendment in mind.

My tentative view is that a necessity defence should only be allowed in exceptional circumstances, given that CAT purports to rule it out, but that it would be a violation of the laws of nature, etc., to forbid the necessity defence accross the board.


I think a necessity defense (not "utility", as Oren oddly termed it) should be permitted (Field on Law), as long as it's understood to mean strict necessity. If these guys can prove that (and it's an affirmative defense, so it's their burden), let 'em go free.
4.22.2009 3:25pm
zuch (mail) (www):
[I]nterrogation 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."
No one could have imagined such a plot ... certainly not Condi. Good thing we put the squeeze on KSM to tease out this nefarious and imaginative plot, otherwise we would have been caught completely off guard....

Cheers,
4.22.2009 3:27pm
MarkField (mail):

Like Chuck Hagel, but much, much harder to understand, even in the original German.


I know I'm looking forward with gusto to the Phenomenology of Tortured Minds.
4.22.2009 3:27pm
Anderson (mail):
I know I'm looking forward with gusto to the Phenomenology of Tortured Minds.

We have a thread winner!
4.22.2009 3:30pm
zuch (mail) (www):
What's truly pernicious about the "necessity" defence is that, unlike torture for the sake of sadism, retribution, etc., there really is no end to what's allowed, and no point of stopping. If it's truly "necessary", you'll do 'whatever it takes', all morality aside.

Cheers,
4.22.2009 3:35pm
PC:
The 2005 memos demonstrate that CIA became more aggressive over time, pouring more water over his face than represented in the 2002 Bybee memo.

In for a penny...
4.22.2009 3:35pm
Oren:

Yeah, or, you know, revive the independent counsel statute that has been found constitutional.

I think the experience with that statute was sufficiently negative to make that a non-starter.
4.22.2009 3:35pm
Oren:

What's truly pernicious about the "necessity" defence is that, unlike torture for the sake of sadism, retribution, etc., there really is no end to what's allowed, and no point of stopping. If it's truly "necessary", you'll do 'whatever it takes', all morality aside.

The jury is there to assess the proportionality of the action you've taken and your judgment.
4.22.2009 3:37pm
tsotha:

I disregard everything sourced anonymously. It's simply too likely the source either doesn't exist or has his own ax to grind. That includes sources saying something I want to hear, by the way.

Well, if everyone felt the way you do Nixon would never had been caught.

I don't want to derail the discussion, but this is almost certainly wrong. Mark Felt was leaking grand jury testimony, after all. Nixon would have ended up resigning, though he may have been in office for a few more months.
4.22.2009 3:44pm
Steve P. (mail):
He probably figured it out after the 183rd waterboarding.

If someone was slowly and methodically tearing out my fingernails, I probably wouldn't think my life was in immediate danger. Does that not count as torture, then? Perhaps only "enhanced interrogation".
4.22.2009 3:46pm
Just an Observer:
PC: Personally? No. But I would prefer someone that could act independently of the executive so there's no political taint (if only the DoJ could be considered separate from the president -- novel, huh?).

Remember that the act authorizing outside special prosecutors was deliberately allowed to expire.

What could be done would be to appoint a DOJ prosecutor as a special counsel with the understanding that he will have an independent mandate. That's what happened when Patrick Fitzgerald was appointed to investigate the outing of Valerie Plame.

Even if there were a special prosecutor, and some saint were found to fill the shoes, I suspect that the fabric of our politic is so rancid that partisans on one side or the other would scream no matter what the outcome. (See Plame, Valerie above.)

Tough. Let them scream. We should do it anyway. Under existing law, it will be on Holder to take any action.
4.22.2009 3:46pm
John Moore (www):

I don't want to derail the discussion, but this is almost certainly wrong. Mark Felt was leaking grand jury testimony, after all. Nixon would have ended up resigning, though he may have been in office for a few more months.


Which means a couple of additional things...

(1) The information was obtained illegally

(2) The result was a conspiracy between a high ranking member of the US secret police (or the closest we have to it) and the media. That conspiracy was to unseat the democratically elected leader (not that he didn't deserve it, but for those folks who are so hung up on whether the ends justify the means... here's another case). In other words, it was a coup by the secret police.
4.22.2009 3:46pm
Oren:

If it's truly "necessary", you'll do 'whatever it takes', all morality aside.

Actually, the history of the concept of "necessity" is quite tied in with morality -- it allows the citizen to break the terms of a statute only if it leads to lesser of two evils. How you could think that it sets morality aside, when the clear purpose is to create a more moral outcome, is sort of confusing.
4.22.2009 3:47pm
tsotha:
I thought the 9/11 Commission worked in a bipartisan manner without splitting along party lines.

Oh God, what a rotten example. The purpose of the 9/11 commission was to spread the blame out so widely and thinly that nobody paid a political price for what happened. Of course it didn't split along party lines - they were looking to protect the political class from the voters.
4.22.2009 3:48pm
My Middle Name Is Ralph:
@ Bob from Ohio, no doubt there are certain people who will not accept the conclusions of a bipartisan commission on torture just like there are those who do not accept the conclusions of the 9/11 Commission (e.g., the 9/11 Truthers). Just because some fringe elements won't accept it doesn't mean that such a commission could not operate in a bipartisan manner or that it's conclusions and recommendations would not be accepted by the public generally.
4.22.2009 3:48pm
Oren:
John, that democratically elected leader was brought up on impeachment charges by a democratically elected legislature for violating the laws and the Constitution of the USA, both of which were passed or ratified by democratically elected assemblies.
4.22.2009 3:51pm
einhverfr (mail) (www):
Oren:

The jury is there to assess the proportionality of the action you've taken and your judgment.


After you convince the judge to allow it.....

I don't see a necessity defence being that much of a blank check.
4.22.2009 3:52pm
Oren:
NY Penal code

§ 35.05 Justification; generally. Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or

2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

Necessity is an inherently moral argument.
4.22.2009 3:52pm
My Middle Name Is Ralph:

The 2005 memos demonstrate that CIA became more aggressive over time, pouring more water over his face than represented in the 2002 Bybee memo.


Maybe I'm missing something, but I don't get how the amount of water used in waterboarding really makes much of a difference. Isn't all waterboarding is going to use enough water to act as slow motion suffocation (if you're able to breath OK, then it's not waterboarding). Thus, all waterboarding is going to be horrific to experience.
4.22.2009 3:54pm
MarkField (mail):

What's truly pernicious about the "necessity" defence is that, unlike torture for the sake of sadism, retribution, etc., there really is no end to what's allowed, and no point of stopping. If it's truly "necessary", you'll do 'whatever it takes', all morality aside.


A defendant must prove four conditions in order to assert a defense of necessity: the defendant must choose the lesser of two evils; s/he must act to prevent imminent harm; s/he must reasonably expect the action will avoid the harm; there must be no other legal alternative available. Regarding the last requirement, the Supreme Court has emphasized that “The case, however, must be one of absolute and uncontrollable necessity... ‘Nothing less ... than an uncontrollable necessity, which admits of no compromise, and cannot be resisted,’ will be held a justification of the offence.” The Diana, 74 U.S. 354, 361 (1868)


He probably figured it out after the 183rd waterboarding.


Someone suffering the Death of A Thousand Cuts would presumably be very much alive after "just" 183.
4.22.2009 3:55pm
David Drake:
--Ralph--

The question addressed in the memos is whether waterboarding and other interrogation methods, as described in and limited in the memos--that is, as based on the representations by the CIA of what they were going to do--met the definition of "torture" in the relevant statute. That's different than simply saying "waterboarding is torture."

Although you will probably think I am an irrational person, I agree with the conclusions in the memos.
4.22.2009 4:02pm
Richard Aubrey (mail):
Oren. Was Nixon brought up on charges? I thought a bunch of old guys from the Senate visited him and laid out what they had, after which he resigned.
Only Clinton has been impeached recently.
And, even though a republican, the offenses Nixon was accused of were not actually illegal, which is why the old guys didn't try to impeach him. Just told him his effective time was over.
4.22.2009 4:06pm
Richard Aubrey (mail):
Well, we are where I said we ought to be: Arguing whether torture and its actual gains in intel are still to be avoided at an unknown but certain price.
Tougher than insisting it doesn't work.
Isn't it?
4.22.2009 4:08pm
tsotha:
Well, we are where I said we ought to be: Arguing whether torture and its actual gains in intel are still to be avoided at an unknown but certain price.
Tougher than insisting it doesn't work.
Isn't it?


Yep. "Torture doesn't work" is a cop out, pure and simple.
4.22.2009 4:11pm
PC:
And, even though a republican, the offenses Nixon was accused of were not actually illegal, which is why the old guys didn't try to impeach him.

Conspiring to commit domestic terrorism, breaking and entering, etc. was not illegal? Huh.
4.22.2009 4:11pm
PC:
Yep. "Torture doesn't work" is a cop out, pure and simple.

I could use a screwdriver to pound in a nail, but it's not the most effective tool for the job. And it's also not illegal according to statutes and treaties.
4.22.2009 4:13pm
tsotha:
I could use a screwdriver to pound in a nail, but it's not the most effective tool for the job. And it's also not illegal according to statutes and treaties.

And? You're not addressing the point.
4.22.2009 4:22pm
PC:
And? You're not addressing the point.

So when we tortured people to make them admit there was a link between al Qaeda and Iraq, did that work?
4.22.2009 4:29pm
Anderson (mail):
Maybe I'm missing something, but I don't get how the amount of water used in waterboarding really makes much of a difference. Isn't all waterboarding is going to use enough water to act as slow motion suffocation (if you're able to breath OK, then it's not waterboarding). Thus, all waterboarding is going to be horrific to experience.

Agreed, but I was referring to the risk of actual death.

As I understand the memos, Bybee authorized it on the theory that no water actually entered the nose/mouth. You could smother under the rag, of course (try it at home, kids!), but that can be quickly removed.

Water in the passages, I think, besides resembling more closely Japanese (and American-in-the-Philippines) "water cures," would also seem to increase the chance of actually drowning, not "just" smothering.
4.22.2009 4:30pm
zuch (mail) (www):
Oren:
See, e.g. People of NY v. Gray:

The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude (see 1 CJI N.Y.P.L. 35.00, Introductory Comment at 848-849). The same basic standards should apply in cases where defendants assert the justification defense defined by Penal Law 35.05(2).
Oren: NYPL 35.05(2) is N.Y. statutory law.

Feel free to cite the corresponding "get out of jail free" provision in the U.S. Code that allows a "necessity" (or "justification") defence for violations of U.S. law.

Cheers,
4.22.2009 4:30pm
PlugInMonster:
Prosecute, prosecute, prosecute. Shut down the CIA. Scrap the military. Sing Kumbaya to our enemies - maybe they'll spare us the blade.
4.22.2009 4:32pm
MarkField (mail):

"Torture doesn't work" is a cop out, pure and simple


It doesn't work, not in any meaningful sense. Yeah, occasionally somebody will give a real answer, but the haystack/needle ratio is so high that saying it "works" is like saying that a stopped clock "works".
4.22.2009 4:36pm
Anderson (mail):
So when we tortured people to make them admit there was a link between al Qaeda and Iraq, did that work?

Like a *charm*, man.
4.22.2009 4:37pm
tsotha:
So when we tortured people to make them admit there was a link between al Qaeda and Iraq, did that work?

Still not addressing the point.
4.22.2009 4:38pm
MarkField (mail):
I have to add that I find it passing strange to see those who claim that (a) torture works, go on to assure us that (b) what we did wasn't "torture".
4.22.2009 4:38pm
David Drake:
MarkFeld--

Probably because those who assure us that the CIA tortured detainees also claim that torture doesn't "work."
4.22.2009 4:44pm
PC:
Still not addressing the point.

What is your point then? That less effective methods should be used rather than more effective methods even though they violate US law and international treaties? Seriously, what's your point?

Torture worked in getting witches to admit that they were indeed witches. Women admitted to flying to their covens to have sex with Satan in the middle of the night. So if your point is that torture "works," sure, it "works."

But like the mythical connection between Iraq and al Qaeda and the (related) false confessions of al Libi, torture got us information that was completely false. Perhaps you think our intelligence agencies have unlimited resources to chase after imaginary threats, but I would prefer they spend their time on dealing with actual threats. Oh, and also not commit crimes.
4.22.2009 4:46pm
trad and anon (mail):
So, Anderson, are stress positions torture?

Cold rooms? If so, how cold, and at what humidity?

Is bad food torture? Fake menstrual blood? Bare breasts?

Where do you draw the line?


I can't speak for Anderson, but "drawing a precise line is hard, therefore it is impossible to draw a line" is one of those ideas you're supposed to have beaten out of you as a 1L.

So far everyone on the "hang Cheney" side is demanding that their opponents prove a negative, which is of course impossible, i.e., prove that you couldn't have gotten the same intel or better with (totally undefined) more civilized methods. OK, let me turn it around - you prove that you could have.


There is no "produce intel" exception in the torture statutes. To include one would defeat the whole point.
4.22.2009 4:47pm
Anderson (mail):
I have to add that I find it passing strange to see those who claim that (a) torture works, go on to assure us that (b) what we did wasn't "torture".

Yes, it's a bit tortuous of them.

Still not addressing the point.

It's been addressed, above. Please read the thread. I'm puzzled what you're looking for.

A rock may work to drive a nail, but it's not as effective as a hammer. (Not sure why I'm obsessed w/ hammers today.) A rock may also be more likely to split in your hand, cast shards into the eyes of those nearby, etc.

That is not the same as "rocks never work," but it's not a reason to hammer a nail with a rock, when there are hammers at hand.
4.22.2009 4:49pm
John Moore (www):
Oren:

John, that democratically elected leader was brought up on impeachment charges by a democratically elected legislature for violating the laws and the Constitution of the USA, both of which were passed or ratified by democratically elected assemblies.

I could be picky and point out the impeachment didn't happen, but was about to - but then I'd be like JBG.

Yes, coup is perhaps too strong a word.

OTOH, it is true that the secret police successfully removed the president through illegal means (even if the penultimate approach - the Judiciary Committee hearings - were legal).

So Nixon was impeached on fruit of the poisoned tree - arrived at by means just as dangerous as what he was impeached for. OTOH, Congress can impeach for whatever they like - it is a political action cloaked in quasi-judicial procedures (as one could see here locally in the impeachment of former Gov. Ed Meachem).
4.22.2009 4:50pm
tsotha:
It doesn't work, not in any meaningful sense. Yeah, occasionally somebody will give a real answer, but the haystack/needle ratio is so high that saying it "works" is like saying that a stopped clock "works".

This is just wrong. See my earlier post on the subject. Torture certainly works as long as you're going after information you can verify. Of course it doesn't work if you want to know who said what in a conversation, or whether or not the subject did something.

But if you want to know where a safehouse is, a bank account number, or where they've hidden the ambassador's daughter, it works. It works because you can go look to see if you're being lied to.

I'm sorry if it disturbs you. I'm okay with people saying "we shouldn't torture because it's immoral" or "we're better than that" or even "we shouldn't do it because the Europeans will cry." But there's a price. A blanket ban on torture means some unknown number of innocent Americans will die as a result. If that's a price you're willing to pay then at least be honest to yourself and admit it up front.
4.22.2009 4:51pm
PC:
A blanket ban on torture means some unknown number of innocent Americans will die as a result.

Cite?
4.22.2009 4:54pm
John Moore (www):

Water in the passages, I think, besides resembling more closely Japanese (and American-in-the-Philippines) "water cures," would also seem to increase the chance of actually drowning, not "just" smothering.

"passages?"

The critical issue is whether water reaches the lungs, at which point it can cause suffocation (if too much) or pneumonia. If you've spent much time in a dentist's chair, you know that having water introduced into "the passages" does not mean that it will reach the lungs. Otherwise, you'd never be able to drink liquid.

There's also, of course, the difference in intent between our approach and the Japanese.


I have to add that I find it passing strange to see those who claim that (a) torture works, go on to assure us that (b) what we did wasn't "torture


We've covered that before. If one uses any other word to describe the techniques, the hoards of dictionary police on here distract the discussion all over the place.

So we shorthand to "torture" when discussing historical activity, and sometimes when discussing waterboarding, just to avoid those flame-ups.
4.22.2009 4:57pm
John Moore (www):
PC:


A blanket ban on torture means some unknown number of innocent Americans will die as a result.



Cite?


That's precious. Really precious.

The world outside of law does not require cites for all fact determination or risk management.
4.22.2009 4:58pm
PC:
There's also, of course, the difference in intent between our approach and the Japanese.

What's the difference? The Japanese were trying to extract information from prisoners.
4.22.2009 4:59pm
PC:
The world outside of law does not require cites for all fact determination or risk management.

But the world of anonymous internet comments does. If tsotha is going to make a claim that x will happen if we don't do y, I'm going to ask for sources. Torture apologists claim there will be grave consequences if we don't torture, but they can't seem to point to an incident that was averted thanks to torture. As more information comes out it seems that torture was used to generate the (false) results the administration wanted: al Qaeda and Iraq had operational ties.
4.22.2009 5:05pm
Oren:

The world outside of law does not require cites for all fact determination or risk management.

Excellent, then I posit my new theory: coercive interrogation of detainees will lead to the aliens from Neptune attack Earth with their puke-rays.

[ You should really change that noun phrase to "the world outside law, business, government and academia". ]
4.22.2009 5:08pm
Oren:

There's also, of course, the difference in intent between our approach and the Japanese.

Actually, one of our airmen (Col. Chase J. Nielsen) was tortured to reveal the timing and composition of our bombing runs targeting Japanese cities.
4.22.2009 5:12pm
dr:


There's also, of course, the difference in intent between our approach and the Japanese.



Actually, one of our airmen (Col. Chase J. Nielsen) was tortured to reveal the timing and composition of our bombing runs targeting Japanese cities.


Sounds like there really was a difference in intent then.
4.22.2009 5:13pm
Oren:


Feel free to cite the corresponding "get out of jail free" provision in the U.S. Code that allows a "necessity" (or "justification") defence for violations of U.S. law.

It's a codification of the MPC which is itself a codification of US Common Law. The Supreme Court has long ruled that common law applies in Federal Court unless the statute explicitly says otherwise.
4.22.2009 5:14pm
Oren:

Although you will probably think I am an irrational person, I agree with the conclusions in the memos.

I don't ( I still think you are wrong), but I'm curious as to what meaning you attach to the word "severe" as preceding pain and suffering?


Was Nixon brought up on charges? I thought a bunch of old guys from the Senate visited him and laid out what they had, after which he resigned.

I interpret his resignation as a plea of sufficient facts.
4.22.2009 5:16pm
PC:
Sounds like there really was a difference in intent then.

The Japanese were trying to get actionable intelligence while we were attempting to justify starting a war?
4.22.2009 5:17pm
Oren:
Cite for my 5:14PM, not exactly on point, but it's close.

Since Justice Story's day, United States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (CC Mass. 1812), we have understood that "[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted." Baltimore &Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). In keeping with our long standing adherence to this "historical test," Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 640-643 (1973), we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the Founding or is at least analogous to one that was, see, e.g., Tull v. United States, 481 U.S. 412, 417 (1987). If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common law right as it existed in 1791
4.22.2009 5:22pm
Oren:

The Japanese were trying to get actionable intelligence while we were attempting to justify starting a war?

Actionable intelligence that, with high probably, would prevent the loss of civilian life.
4.22.2009 5:23pm
tsotha:
PC, now you're being ridiculous. I don't need a cite for something that's just common sense. If I can get information on Al Queda means and methods, I think it's pretty clear that will save American lives. Is that something you're prepared to dispute with a straight face?
4.22.2009 5:28pm
Sagar:
Oren:

we have already disproved your theory re: alients from Neptune with puke-rays ...

(coersive interrogation techniques have been used with no puke-ray attacks resulting)

i will give you Academia in addition to Law, but seriously do you think all business decisions/discussions revolve around "cite?" read PCs post again and see if it makes any sense.
4.22.2009 5:36pm
dr:


Sounds like there really was a difference in intent then.



The Japanese were trying to get actionable intelligence while we were attempting to justify starting a war?


That's what it looks like, yeah.
4.22.2009 5:38pm
Sagar:
Are the CIA agents part of the public employee union (or federal state local govt employee union ... whatever the name is).

What do the union rules say about the govt punishing its members for following orders (or 'The Law' as promulgated by the OLC - to paraphrase one of the posters above) in good faith?
4.22.2009 5:40pm
Oren:

we have already disproved your theory re: alients from Neptune with puke-rays ...
(coersive interrogation techniques have been used with no puke-ray attacks resulting)

The aliens are just biding their time, waiting for the right moment to strike. Don't worry, we can convince them to call it off if we change our ways!


i will give you Academia in addition to Law, but seriously do you think all business decisions/discussions revolve around "cite?" read PCs post again and see if it makes any sense.

Yes, they do. Decisions needs to be justified, costs need to be computed, assumptions needs to be stated outright. Back when I worked at a Corp, you couldn't take a shit without documenting why you thought the cost of toilet paper was less than buying a new pair of pants.
4.22.2009 5:45pm
PC:
I don't need a cite for something that's just common sense. If I can get information on Al Queda means and methods, I think it's pretty clear that will save American lives. Is that something you're prepared to dispute with a straight face?

If it's common sense then you can rattle off all the examples of the people we tortured that saved American lives. It's okay, I'll wait.

On the flip side I can rattle off the people we tortured and got bogus intel from, or the people we tortured (or had someone else torture for us) that provided no intel at all (being innocent is funny that way).

We can compare lists if you'd like.
4.22.2009 5:46pm
My Middle Name Is Ralph:

The question addressed in the memos is whether waterboarding and other interrogation methods, as described in and limited in the memos--that is, as based on the representations by the CIA of what they were going to do--met the definition of "torture" in the relevant statute. That's different than simply saying "waterboarding is torture."

Although you will probably think I am an irrational person, I agree with the conclusions in the memos


I agree that "waterboarding is torture" is not a sufficient answer (and that that's often as deep of an analysis as some on my side do).

But, how does waterboarding not meet the statutory definition? We know it's basically slow motion suffocation via a wet towel. Enough time to slowly feel the suffocation, strain with every last ounce of strength aginst your restraints, and feel like you are drowning. So, here's my quick, legal analysis:

Severe physical pain? I'd think so, but for the sake of argument I'll give you this one.

Severe physical suffering? The memo argues that suffering must be prolonged, but that's nowhere in the statutory definition. I just cannot imagine how being waterboarded would not be severe physical suffering as you are tied down, slowly suffocating, and feel like you are drowning. In my book, that's suffering and that's severe. The conceded fact that waterboarding is basically unbearable for everyone confirms this to me.

Severe mental pain or suffering (i.e., prolonged mental harm)? The memo ackowledges that waterboarding results in the fear of imminent death, one of the predicates for severe mental pain or suffering. But, it argues that waterboarding does not lead to prolonged mental harm. First, as a matter of statutory interpretation, I think the memo is wrong in that meeting one of the predicates for mental pain or suffering is insufficient in and of itself given the use of the word "the" preceding "prolonged mental harm." Second, I cannot see how repeatedly experiencing threats of imminent death via drowning does not lead to prolonged mental harm. You have to live with that terrifying fear and experience for the rest of your life. By saying that the fear of drowning is removed as soon as the towel is removed, I think the memo takes way too restricted a view of mental harm.

Moreover, if you take the position that waterboarding is not torture for the reasons described in the memo, then that leads to, IMHO, finding other "techniques" always acknowledged as torture to in fact not be torture. Here's what I mean--using the legal framework and analysis in the torture memos, answer 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 in the memos, then don't you have to question whether your analysis that waterboarding is not torture?
4.22.2009 5:55pm
Sagar:
I can understand the position of some of the commenters such as Mark Fields who hold 'torture to be illegal so we shouldn't use it'.

But those that are making the "torture does not result in good intel" please submit to iterrogation and I will make sure you will give me good intel. Keep in mind you are my prisoner and when I find out that you lied to me, I will return with a pair of pliers.

Your claim that the victim will say what the torturer wants is only partially true. It may be true when we torture someone to admit to some crime (they may do so to avoid the pain), but when we ask for intel that can be corraborated in the field, and when the 'victim' is not sure what else we know, who of his buddies is singing, so he can't know what lies he can get away with.

It is very likely that torture will yield good intel.
4.22.2009 5:55pm
PC:
But those that are making the "torture does not result in good intel" please submit to iterrogation and I will make sure you will give me good intel.

Given enough time I'm sure you could get me to admit that I'm a witch and I fly to my coven at night to have intercourse with Lucifer.
4.22.2009 5:58pm
Sagar:
Oren:

since we have elected "change" i am sure we are saved!

business decisions are based on business justification - i agree as i live that life daily - but this ritualistic "cite?" for every claim a commenter makes is silly. much of what we post here are opinions. when we "cite" much of those are also opinions posted by someone else some place else. i like cites when people are debating legal cases (since it is educational for me).

the point here is using torture or not (leave the legal and moral questions aside). if i submit that torture is a tool, and having the additional tool at my disposal is useful for me than not having it as an option. do you want me to provide a cite for this?
4.22.2009 6:02pm
John Moore (www):

[ You should really change that noun phrase to "the world outside law, business, government and academia". ]


Nope. I could add academia, I suppose, but much of academia is farther removed from common sense than legal practice - which has a good reason for using cites (i.e. using logic already worked out by someone else, especially that has stood the test of time).

Otherwise, nope. I've been in business for along time in a lot of roles. "Cites" are rarely relevant.

Information is relevant, but rational evaluation of the sources and content allows one to use it without it having the imprimatur of a 'cite' or a principle investigator.
4.22.2009 6:02pm
dr:

but when we ask for intel that can be corraborated in the field, and when the 'victim' is not sure what else we know, who of his buddies is singing, so he can't know what lies he can get away with.


True enough. Also true: when we ask for intel that the torturee doesn't have, we will get BS. But hey, at least we will have gotten to torture a guy.
4.22.2009 6:04pm
Sagar:
PC:

read what I wrote again, and then see if your response is relevant. i also said you would admit to a crime if tortured long enough. but the point is to get info out of you that can be corraborated in the field.

you admitting that you are a witch is of no use to me, but if you can tell me about your pals who are plotting something else, or your buddy who is financing these activities that would be useful. since you don't know what i already know and what i can verify in the field and you know i have a lot of time and resources, would you be able to withhold info from me?
4.22.2009 6:07pm
John Moore (www):

Also true: when we ask for intel that the torturee doesn't have, we will get BS. But hey, at least we will have gotten to torture a guy.

This line of argument is, and is meant to be offensive, rather than persuasive.
4.22.2009 6:08pm
PC:
This arguing over the request of a citation seems rather silly. A factual assertion was made: "A blanket ban on torture means some unknown number of innocent Americans will die as a result." I'm asking for a reference.

If it's an opinion that's fine, but it was presented as a fact. I can point to examples where we have tortured people that were innocent, produced bogus intelligence, etc. I'm just asking for an example of where we have tortured someone and it has saved "some unknown number of innocent" American lives.

If it's "common sense" then examples should be easy, right?
4.22.2009 6:09pm
Oren:

but when we ask for intel that can be corraborated in the field, and when the 'victim' is not sure what else we know, who of his buddies is singing, so he can't know what lies he can get away with.

Unless of course you ask him for intel that he simply doesn't have ...
4.22.2009 6:13pm
dr:


Also true: when we ask for intel that the torturee doesn't have, we will get BS. But hey, at least we will have gotten to torture a guy.



This line of argument is, and is meant to be offensive, rather than persuasive.


Fair enough. I'm not intending to offend. So let me amend the second sentence:

Also true: when we ask for intel that the torturee doesn't have, we will get BS. And yet, we will still have tortured someone.

Better?
4.22.2009 6:13pm
tsotha:
Given enough time I'm sure you could get me to admit that I'm a witch and I fly to my coven at night to have intercourse with Lucifer.

I'll bet I could get your home address no matter how badly you didn't want to divulge it, assuming once I got there I could verify it by something I found there.
4.22.2009 6:15pm
PC:
since you don't know what i already know and what i can verify in the field and you know i have a lot of time and resources, would you be able to withhold info from me?

You would have a hell of a time getting any sort of actionable intelligence out of me since I'm not a terrorist. But with torture being what it is I'm sure I would confess to all sorts of things. None of them would be true and you would waste resources verifying what I said, but hey, you can always come back and lean on me harder. Surely I must know something.

If I was a terrorist would you be happy if I told you everything, but you still "felt" I was holding out? Like al-Libi?
4.22.2009 6:15pm
Oren:

Information is relevant, but rational evaluation of the sources and content allows one to use it without it having the imprimatur of a 'cite' or a principle investigator.

So at your corporation, if a purchasing officer rationally figure that a new Dell PowerEdge R610 server costs $2500, he can just fill out a purchase order for $2500 without actually investigating what Dell charges?
4.22.2009 6:15pm
Oren:

If I was a terrorist would you be happy if I told you everything, but you still "felt" I was holding out? Like al-Libi?

Indeed, this seems to be the case -- interrogators have no idea whether or not the detainee is withholding more information from them and have to either continue interrogating or give up based on pretty much nothing.
4.22.2009 6:17pm
PC:
I'll bet I could get your home address no matter how badly you didn't want to divulge it, assuming once I got there I could verify it by something I found there.

And this relates to the torturing we actually did how? Higher ups were leaning on interrogators to provide a link between Iraq and al Qaeda. So our guys tortured some bad people to get information that doesn't exist.

I'll bet you could get me to admit I'm a space alien from planet Zardoz. It wouldn't matter because it's not true and no amount of torturing me will make it true. Kind of like the al Qaeda-Iraq intelligence we tried to torture out of people.

And you would be committing a crime.
4.22.2009 6:19pm
tsotha:
If it's an opinion that's fine, but it was presented as a fact. I can point to examples where we have tortured people that were innocent, produced bogus intelligence, etc. I'm just asking for an example of where we have tortured someone and it has saved "some unknown number of innocent" American lives.

Stop with the "bogus information" canard. I've already stipulated there's no point in leaning on someone for information you can't validate. As for the saving American lives part, well, I can't prove the US military is saving American lives by being in Afghanistan, but I'm pretty sure it's the case. In any event we'll know if Obama comes under enough pressure to release more information.
4.22.2009 6:21pm
Oren:


I'll bet I could get your home address no matter how badly you didn't want to divulge it, assuming once I got there I could verify it by something I found there.

But you have no idea how many homes I have. So you either have to be satisfied that I've divulged the address of all of them or you have to continue torturing me even though I might have actually told you all of them.

If there's anything more evil than torturing information out of someone, it's got to be torturing information that they don't have but the interrogator is convinced (based on what evidence, who knows) that they know. One can at least sort of rationalize in the former case that the detainee can make it stop by divulging what the interrogator wants to know, but in the latter case, it's mind-bogglingly evil.
4.22.2009 6:21pm
Oren:


Stop with the "bogus information" canard. I've already stipulated there's no point in leaning on someone for information you can't validate.

And no way of knowing in advance whether his brain contains any valuable information that can be validated.
4.22.2009 6:22pm
Sagar:
dr:
But hey, at least we will have gotten to torture a guy.

you know i take no particular pleasure in that, unless it is you. so that line of argument doesn't work.
4.22.2009 6:23pm
My Middle Name Is Ralph:
@ Sagar,

I do not doubt that torture can lead to good intelligence. I also do not doubt that lesser methods like those in the Army Field Manual can lead to good intelligence. It seems to me that sometimes one way will be better than the other, and sometimes it will be the other way. I am, however, absolutely positive that the Bush administration's use of coercive interrogation techniques has undermined America's moral authority and inflamed hatred towards us. I would welcome a bipartisan commission to fully investigave what we did, what information resulted from coercive techniques, the effectiveness, or lack therof, of all different interrogation techniques, and the extent to which the use of coercive techniques has hurt our reputation and aided Islamic jihadists recruiting and resolve.
4.22.2009 6:26pm
Joseph Slater (mail):
Sagar:

Not sure if you were asking seriously or not, but the CIA is exempt from the statute that permits (many) federal employees to form unions and bargain contracts.
4.22.2009 6:28pm
zuch (mail) (www):
Oren:
[zuch]: What's truly pernicious about the "necessity" defence is that, unlike torture for the sake of sadism, retribution, etc., there really is no end to what's allowed, and no point of stopping. If it's truly "necessary", you'll do 'whatever it takes', all morality aside.

[Oren]: The jury is there to assess the proportionality of the action you've taken and your judgment.
So I assume you're in favour of letting a jury hear it?

FWIW, though, I would state that under these facts, the trial judge would be within their legal rights to disallow such a defence as a matter of law in the instant case.

But back to the subject I brought up, a "necessity" defence here truly allows pretty much anything. If it's truly "necessary", you just keep going until you get what you want ... or the detainee dies, I guess.

Cheers,
4.22.2009 6:28pm
tsotha:
And this relates to the torturing we actually did how? Higher ups were leaning on interrogators to provide a link between Iraq and al Qaeda.

Now you're just being dense. Let me put it this way: Do you believe you would be able to refrain from giving your correct address to someone who was torturing you, even if you really, really didn't want to? And if not, what makes that piece of information different from any verifiable data we got from KSM?

The anonymous administration source/barfly/imaginary friend isn't credible unless we have corroborating information.
4.22.2009 6:31pm
tsotha:
And no way of knowing in advance whether his brain contains any valuable information that can be validated.

That's true if you don't know anything about the guy, I guess.
4.22.2009 6:32pm
tsotha:
I am, however, absolutely positive that the Bush administration's use of coercive interrogation techniques has undermined America's moral authority and inflamed hatred towards us.

Do you really believe this is true in a region where every government employs far, far worse?
4.22.2009 6:34pm
zuch (mail) (www):
Oren:
Actually, the history of the concept of "necessity" is quite tied in with morality -- it allows the citizen to break the terms of a statute only if it leads to lesser of two evils. How you could think that it sets morality aside, when the clear purpose is to create a more moral outcome, is sort of confusing.
Well, if you're a utilitarian like Bentham. Others disagree. See Bob Brecher's "Torture and the Ticking TIme Bomb", for instance.

In plainer words, just because something is the least bad alternative --if such is even the case, should you find such a situation where there truly is only such an array of options [of which this is not one] -- in no way makes it "moral".

Cheers,
4.22.2009 6:34pm
dr:


dr:
But hey, at least we will have gotten to torture a guy.



you know i take no particular pleasure in that, unless it is you. so that line of argument doesn't work.


Catch up, Sagar. I withdrew that statement so as not to offend Mr. Moore. But I still don't hear anyone responding to the rest of the argument, which Oren has made more forcefully and more clearly than I did.
4.22.2009 6:37pm
Oren:

In plainer words, just because something is the least bad alternative --if such is even the case, should you find such a situation where there truly is only such an array of options [of which this is not one] -- in no way makes it "moral".

I find it quite hard to believe that it can be moral to voluntarily let something that's not the least bad thing happen. It's a tautology that the best thing that can happen is also the least bad thing that can happen.

Reading up on Brecher now ...
4.22.2009 6:38pm
PC:
Here's a good article about an FBI agent that successfully broke an al Qaeda member without using torture. It's amazing what talented professionals can do without waterboarding.
4.22.2009 6:46pm
My Middle Name Is Ralph:

Do you really believe this is true in a region where every government employs far, far worse?


Absolutely. Check public opinion surveys about America's reputation in the world. Check reports about jihadists' recruiting and their propaganda.

Putting aside the hypocrisy and foreigner aspects of our actions as seen by those in the Middle East, the authoritarian governments of the region are not particularly liked by their own populations, let alone respected throughout the world, so I wouldn't use them as a model.
4.22.2009 6:46pm
tsotha:
If there's anything more evil than torturing information out of someone, it's got to be torturing information that they don't have but the interrogator is convinced (based on what evidence, who knows) that they know. One can at least sort of rationalize in the former case that the detainee can make it stop by divulging what the interrogator wants to know, but in the latter case, it's mind-bogglingly evil.

On that point I would agree. Moral issues aside, from a practical standpoint this isn't something that makes sense in a lot of cases. But under the right circumstances you stand to get information you couldn't get any other way, unless you agree with the tea and crumpets crowd.
4.22.2009 6:48pm
tsotha:
Absolutely. Check public opinion surveys about America's reputation in the world. Check reports about jihadists' recruiting and their propaganda.

America's reputation in the world has never been particularly high in my lifetime. They've always, always got some kind of grievance. Look at Chavez in Venezuela. Sure, there was an outpouring of sympathy after 9/11, but don't confuse sympathy with respect.

Any information on Jihadi recruiting is suspect, but everything I've seen points to a spike in recruiting immediately following 9/11, before any of this information came out.
4.22.2009 6:55pm
Andrew J. Lazarus (mail):
But if you want to know where a safehouse is, a bank account number, or where they've hidden the ambassador's daughter, it works. It works because you can go look to see if you're being lied to.
Unless, of course, the person you are torturing has no idea. Take, for example, the demand to list all of one's confederates in Al Qaeda. Was the first list accurate? Was it complete? Each new round of torture yields more names—at what point has the victim listed all of his true associates (if any—maybe it is entirely the wrong guy)?

The safehouse scenario is TV. It isn't what we did.

The pro-torture crowd complains bitterly that we refuse to acknowledge the utility of torture, but they have never attempted to answer any of the following questions.

1. If waterboarding is not torture, should we ask the Museum Khmer Rouge torture to remove the exhibit showing an apparatus identical to the one the CIA employs?

2. If waterboarding is not torture, should we pardon Japanese who were convicted of its use after WWII?

3. Do we have any problem with Stalin's use of sleep deprivation?

4. Is Cardinal Mindszenty's confession authentic? He appeared unscarred, after all.

5. Why did the Luftwaffe find non-violent interrogation of captured airmen resulted in better information for optimization of inadequate defensive resources? (Compunction about torture would not seem, in the case of Nazis, to be a likely answer.)

6. Why did the Japanese Imperial Army believe torture was a crude, inferior method of obtaining information.

6. How did the waterboarding of KSM in 3/03 result in the breakup of the LA bomb plot in 2002, as repeatedly claimed by members of the Bush Administration?

7. If you have trouble answering the previous question, why should any of the other Bush/Cheney claims about information obtained by torture be accepted?
4.22.2009 6:57pm
MarkField (mail):

I'm okay with people saying "we shouldn't torture because it's immoral" or "we're better than that" or even "we shouldn't do it because the Europeans will cry." But there's a price. A blanket ban on torture means some unknown number of innocent Americans will die as a result. If that's a price you're willing to pay then at least be honest to yourself and admit it up front.


I'm ok with having Americans die as a result of not torturing. I'm ok with having Americans die as a result of not raping our enemies and our enemies' children. Also nuclear war.

But I don't believe your assertion is true, nor do I believe you have any way to prove it.
4.22.2009 7:02pm
Bart (mail):
jukeboxgrad:

BD: "Blair is lying through his teeth claiming "there is no way of knowing whether the same information could have been obtained through other means." … The disclosed memos noted that Blair's other options had been tried and failed."

JG: "You are repeating McConnell's line, that we had attempted non-torture "over a period of time." Please explain how there could have been any significant "period of time," given that we arrested KSM on 3/1/03 and waterboarded him 183 times in 3/03."

Putting McConnell's words in my mouth is a strawman argument. Given the time constraints, the initial attempts at conventional interrogation did not produce timely actionable intelligence.

BD: "Given that there has not been a major attack against either outside the Iraq and Afghan war zones for nearly 8 years now speaks volumes."

JG: "The WTC was first hit about a month after Clinton took office. We then went through the rest of Clinton's term (almost 8 years) without suffering another domestic attack...

That is two strawmen in as many points. I did not limit my comment to domestic attacks. al Qaeda hit us overseas on multiple occasions. As for domestic attacks, apart from the keen observational skills of a border agent, we were almost hit again by a terrorist attempting to attack LA by infiltrating from Canada.

JG: "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.”

Once again, the you critics rely upon anonymous, uncorroborated sources to spin your alternative fantasy world. A supposed Pentagon analysis would not have been involved at all in the CIA interrogation of KSM nor the flurry of al Qaeda captures in the couple weeks after the KSM capture.

BD: "...given Iraq's intimate and long standing operational relationship with al Qaeda...

JG: This claim was explicitly repudiated by the Senate Intelligence Committee (when it was still controlled by Republicans)...

Who gives a flip what the Senate concludes for its own political reasons?

You are welcome to rebut the extensive documentary evidence from Iraqi Intelligence disclosed to the public and described in the Pentagon report on classified undisclosed documents I offered and linked as well as SF findings after taking an al Qaeda base in Iraq. This was just the evidence gained from a tiny fraction of captured Iraqi docs. There are 600,000 more yet to be read.
4.22.2009 7:03pm
Calderon:
MarkField said:


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.


This line of reasoning strikes me as dubious when applied to government actions. We have laws against extortion, and an individual robber would not be let go because his extortion was successful. Yet the government extorts money from us all the time in the form of taxes. If an extortionist then imprisoned people who did not pay him, his crime of kidnapping would not be excused because his kidnapping successfully caused people to pay him extortion money. Yet the government can imprison people for failure to pay taxes (unless they're nominated to the Obama cabinet).

More generally, we accept all kinds of actions from the government that we would not allow individuals to do. If you're going to argue against torture by the government, it's going to need to be on grounds other than that it works.
4.22.2009 7:04pm
Sagar:
dr.

I missed your retraction - sorry (let me state that i take no pleasure in torturing anyone).

as for the rest of the argument of PC and Oren (not to say they both have the exact same point) ...

i said i understand the moral objections of some of the people. i contest the argument that dismisses outright the practical or utilitarian aspect of torture as a tool to obtain info. i am not in favor of torturing every Ahmed we catch in Pak or Afghanistan.

but when you have in custody someone you know to be a terrorist (KSM, Al Jawahari, Abu Zubeida, Osama, etc.) i can't believe that torturing them will not yield useful intel. if you say that we may get a lot of incorrect intel and then will waste resources verifying it, then why bother interrogating anyone at all? under the nice soft questioning also someone may give all kinds of wrong info thus wasting our time/resources to verify it.
4.22.2009 7:09pm
Anderson (mail):
Yet the government extorts money from us all the time in the form of taxes.

Calderon, I see that you are unfamiliar with the American system of government. Allow me to explain.

In America, we elect representatives to a legislature, who then enact statutes, including taxation.

No tax is legally collectable without being authorized by the elected representatives.

Therefore, taxation is not comparable to extortion.
4.22.2009 7:11pm
Anderson (mail):
but when you have in custody someone you know to be a terrorist (KSM, Al Jawahari, Abu Zubeida, Osama, etc.) i can't believe that torturing them will not yield useful intel. if you say that we may get a lot of incorrect intel and then will waste resources verifying it, then why bother interrogating anyone at all? under the nice soft questioning also someone may give all kinds of wrong info thus wasting our time/resources to verify it.

You can get wrong intel either way. However, the person you torture started off by hating you, &that's been ratcheted up by the torture. Plus of course the danger that the torturer will push for false confessions, which when they fail to check out, lead to more torture ("you lied!"). See today's news on torturing prisoners to affirm the chimerical al-Qaeda/Iraq connection.

Proper interrogation flips the subject over to the interrogator's side, to a greater or lesser degree, by appealing to the subject's ego, boredom, desires, whatever. Mark Bowden has a good Atlantic article on how we nailed Zarqawi (remember him?) using just such methods, no torture.

Really, I don't understand why the opinions of professional interrogators (as opposed to CIA amateurs) get so little credence. Read the article I've just linked, and then imagine yourself arguing with Major Moran that he doesn't know shit, actually, and that torture is the way to go.

In the face of this &similar evidence, it seems that the insistence on torture depends on (1) characterizing al-Qaeda as subhumans unamenable to humane methods, (2) the opposite fallacy of elevating them to superman status, on whom ordinary methods won't suffice, or (3) simply wanting to make ourselves feel better by kicking those fuckers' asses.

The article:
One of the most striking points Moran made was that those interrogators who tried the hardest to break down the morale of POWs were actually revealing their own fear--"fear that the prisoner will take advantage of you and your friendship." This, he noted, was "the same idea that a foreman must swear at his construction gang in order to get work out of them."

Of course there always is the danger that some types will take advantage of your friendliness. This is true of any phase of life, whether you are a teacher, a judge, an athletic trainer, a parent. But there is some risk in any method. But this is where the interpreter's character comes in … You can't fool with a man of real character …

Moran was saying that an interrogator who is genuinely tough has the confidence to know that he will always keep the upper hand, even while being nice. "Enlightened hard-boiled-ness," he called this attitude. And he concluded that "strange as it may seem to say so," the most important characteristic of a successful interrogator is not his experience or even his linguistic knowledge; it is "his own temperament" and "his own character."
Character. Imagine that.
4.22.2009 7:22pm
Oren:

I'm ok with having Americans die as a result of not torturing.

Some other big ones:

I'm OK with having Americans die as the result of giving suspects a fair trial.

I'm OK with having Americans die as the result of not imprisoning every violent felon for life without parole

I'm OK with having Americans die as the result of granting the right to trial by jury.

I'm OK with having Americans die as a result of statutes of limitations.

I'm OK with having Americans die as a result of the right to confront witnesses.

I'm OK with having Americans die as a result of the repeal of prohibition and the ensuing DUI fatalities.

I'm OK with having Americans die as a result of legalized tobacco products.

I'm OK with having Americans die as a result of the government not buying each 16 year old a Volvo.

This is going to be a very long list ...
4.22.2009 7:24pm
PC:
You are welcome to rebut the extensive documentary evidence from Iraqi Intelligence disclosed to the public and described in the Pentagon report on classified undisclosed documents I offered and linked as well as SF findings after taking an al Qaeda base in Iraq.

Uh, Bart? Did you actually read that Pentagon report you linked to? Let me quote from the executive summary for you:

This study found no "smoking gun" (i.e., direct connection) between Saddam's Iraq and al Qaeda.

Yes, it actually says that. It's on page ES-1 if you want to check. Seriously, it's like you aren't even trying.
4.22.2009 7:34pm
dr:

if you say that we may get a lot of incorrect intel and then will waste resources verifying it, then why bother interrogating anyone at all? under the nice soft questioning also someone may give all kinds of wrong info thus wasting our time/resources to verify it.


Yes, but we will not have tortured anyone for that fake information. That, to me, is important. If the result, one way or another, is fake information, then I'd rather get that fake information without torturing someone who couldn't have given me the real information if he wanted to.

Of course, to the several people above who have argued that torture (and the threat of more torture) can get someone to give up specific, verifiable information, I think that's true, and I don't see anyone quarreling with that statement.

But I also don't see any good responses to the counterarguments, namely:

* It only helps if we know that the person has that specific information -- if we're asking a question that person can't answer, then we're just pointlessly torturing someone. And I don't know how we can know, in all cases much less in many cases, that the person has the specific, verifiable information that we're asking for. See: the example above about the torturee with the many homes.

* It doesn't appear that we limited our torture scenarios to moments when specific, verifiable information was sought. In which case we were torturing people to obtain confessions, or to obtain information that we could not verify (and perhaps did not exist). Neither of which is useful, both of which are abhorrent. I think there's fairly universal agreement here on that.

* I haven't seen any compelling argument for using torture, even in the limited scenario you cite, when other, less torturous means are available. I hear a lot of "Well, this is the only way to get that information," but that's an assertion, not an argument. Also not compelling: "It's common sense!" It's not.

Point being that I'm not persuaded that torture is more effective than not-torture, even in those scenarios in which I concede that torture would likely be effective. (And if it is more effective, I'm not persuaded that the improvement is enough to justify the act of torture.) I'm also not persuaded that those who tortured on our behalf did so with the utmost concern for adhering to the "only verifiable information, only as much as we need, only in ticking time bomb scenarios" line.

I am persuaded that torture has many negative side effects. I'm not persuaded that the potential positive outcomes outweigh the negatives.

Maybe this puts me in the tea and crumpets crowd.
4.22.2009 7:38pm
Andrew J. Lazarus (mail):
If you want to understand the real reason for torture, just look at the second comment. Most of the pro-torture crowd would still prefer torture even if it turned out that buying the AQ prisoners a round of beers got them to spill everything they knew.
4.22.2009 7:42pm
Just an Observer:
BTW, from ProPublica, here is one more thing that cries out for oversight in some venue: Dozens of Prisoners Held by CIA Still Missing, Fates Unknown
4.22.2009 8:09pm
einhverfr (mail) (www):
tsotha:

Do you believe you would be able to refrain from giving your correct address to someone who was torturing you, even if you really, really didn't want to?


Depends. Do I think you will go and kill my kids? In that case, sure.
4.22.2009 8:12pm
einhverfr (mail) (www):
What is actually funny about comments by folks like tsotha and Bart is that almost every major classic in the field is in the "be nice to them" category and shows this WORKS better than torture.

I think the problem for these folks is that knowing the language and culture is a lot more work and that isn't the way they do things on '24.'
4.22.2009 8:23pm
John Moore (www):
Oren:

So at your corporation, if a purchasing officer rationally figure that a new Dell PowerEdge R610 server costs $2500, he can just fill out a purchase order for $2500 without actually investigating what Dell charges?

Begging the question. There are many decisions made every day (at my company and every one I have been at) that were based on memory, professional judgment, discussion and other non-cite ways.


But you have no idea how many homes I have. So you either have to be satisfied that I've divulged the address of all of them or you have to continue torturing me even though I might have actually told you all of them.


Cite?

If there's anything more evil than torturing information out of someone, it's got to be torturing information that they don't have but the interrogator is convinced (based on what evidence, who knows) that they know. One can at least sort of rationalize in the former case that the detainee can make it stop by divulging what the interrogator wants to know, but in the latter case, it's mind-bogglingly evil.
4.22.2009 8:28pm
John Moore (www):

If there's anything more evil than torturing information out of someone, it's got to be torturing information that they don't have but the interrogator is convinced (based on what evidence, who knows) that they know. One can at least sort of rationalize in the former case that the detainee can make it stop by divulging what the interrogator wants to know, but in the latter case, it's mind-bogglingly evil.


I'd say its more tragic, but it's not more evil.
4.22.2009 8:29pm
PC:
4.22.2009 8:33pm
Just an Observer:
An interesting report from Scott Horton, Obama v. the Justice Department, helps explain Obama's apparent shift toward being open to further investigation.

The gist of Horton's reporting, from unnamed sources, is that when Emanuel opened his mouth on the Sunday talk show, purporting to represent the President's view that there should be no prosecution of Bush higher-ups, DOJ lawyers were "incensed" at the impression of political interference. The backlash forced Obama to articulate a deference to Justice, and the resulting situation increases the pressure for some further action.
4.22.2009 8:40pm
Valmont R:
As someone who is not a part of the legal profession, and also a devoted lifelong liberal, I read many of the articles and their accompanying comments to learn more about the law. Unfortunately, much of this line is devoted to complaining, name calling, and personal feelings. What about the law?
4.22.2009 8:40pm
Anderson (mail):
helps explain Obama's apparent shift toward being open to further investigation

My own pet theory is that Obama is trying to walk the line between (1) no prosecutions, so's not to have a distraction from his economic agenda, and (2) prosecutions by NATO allies, which have signalled they're obliged to prosecute under their treaty commitments, but would really rather we did it ourselves.

I don't think Obama really believes that prosecutions are worth the effort.
4.22.2009 8:45pm
PC:
What about the law?

Philip Zelikow has some interesting things to say on that:

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.

Why would the administration want to destroy all copies of a document showing an opposing view? Curiouser and curiouser.
4.22.2009 8:47pm
Anderson (mail):
What about the law?

The law is sufficiently clear that the torture fans prefer to discuss "whether torture works" and similar subjects. I've quoted &linked the Torture Act, and argued that waterboarding violates it on any reasonable reading.

Forced standing, sleep deprivation, and other NKVD-style methods can be torture ("severe physical/mental pain/suffering") depending on duration and combination with one another. The SERE program was originated to help our pilots &others get a taste of these tortures, presumably to help them resist same. There was no doubt at the time that these were indeed torture. That was the point.

Severe isolation can cause prolonged, severe mental suffering, as a recent New Yorker article pointed out, and as was tried with Jose Padilla with some degree of success at disrupting his personality.
4.22.2009 8:52pm
jukeboxgrad (mail):
ralph:

I don't get how the amount of water used in waterboarding really makes much of a difference


I think it matters, which is why SERE established a limit (2 pints). CIA expanded that to 1.5 gallons.

There are two related variables: the duration of the pouring, and the flow rate. Obviously the duration is very important, but I think a low flow rate makes it more likely that some air might be mixed with the water that's being inhaled.

Limiting the total amount of water means the torturer has to use a short duration and/or a low flow rate.

Isn't all waterboarding is going to use enough water to act as slow motion suffocation (if you're able to breath OK, then it's not waterboarding).


If the cloth isn't kept totally soaked, maybe some air ends up being mixed with the water that's being inhaled. Imagine that the victim is inhaling water at a rate that exceeds the flow rate. That means the victim might get some air, too.

=================
drake:

The question addressed in the memos is whether waterboarding and other interrogation methods, as described in and limited in the memos--that is, as based on the representations by the CIA of what they were going to do--met the definition of "torture" in the relevant statute. That's different than simply saying "waterboarding is torture."

Although you will probably think I am an irrational person, I agree with the conclusions in the memos.


Maybe you're a rational person, but you've given us no rational explanation for distinguishing CIA waterboarding from Japanese waterboarding. (They didn't always do it the way we do it, but they did it that way at least some of the time, and we called that torture and prosecuted them for it.) Actually, you've given us no explanation at all. Even though the question has been raised.

Also, it should be noted that the memos themselves indicate that the CIA exceeded the limits assumed in the memos ("as described in and limited in the memos"). As adler mentioned in the OP.

Probably because those who assure us that the CIA tortured detainees also claim that torture doesn't "work."


Where's the contradiction? Both things are true. Torture is generally ineffective (and 'torture doesn't work' is a simplified way to say that). And the CIA tortured. But it seems they were mostly interested in collecting false confessions. And "total fucking bullshit." In that sense, yes, it 'works.'

=================
tsotha:

"Torture doesn't work" is a cop out, pure and simple.


Why? The concept of "cop out" doesn't enter unless there's a conversation like this:

A) I oppose torture, because it doesn't work.
B) But what if it worked. Would you still oppose it?
A) I'm not saying, because I know it doesn't work.

At that moment, I think B is in a position to claim "cop out." But I don't see anyone having that conversation.

So when we tortured people to make them admit there was a link between al Qaeda and Iraq, did that work?


Still not addressing the point.


Maybe you should tell us what you mean by "the point."

Torture certainly works as long as you're going after information you can verify.


All interrogation relies on and is enhanced by verification. But torture is simply an inferior method of getting information. Some proof is here.

there's a price. A blanket ban on torture means some unknown number of innocent Americans will die as a result. If that's a price you're willing to pay then at least be honest to yourself and admit it up front.


Allowing torture means some unknown number of innocent Americans will die as a result. That's been explained here. If that's a price you're willing to pay then at least be honest to yourself and admit it up front.

I don't need a cite for something that's just common sense. If I can get information on Al Queda means and methods, I think it's pretty clear that will save American lives.


If it's so "clear," then why can't you offer proof that torture has ever saved American lives? It's quite noticeable that the best proof that's been offered requires a belief in time travel. And the proof demonstrates only that people who are willing to torture are also willing to be dishonest.

I am, however, absolutely positive that the Bush administration's use of coercive interrogation techniques has undermined America's moral authority and inflamed hatred towards us.


Do you really believe this is true in a region where every government employs far, far worse?


Yes. Because there are (or were) people in that region who admired us and saw our government as a model of something to hope for. Now, not so much. In other words, we've succeeded in radicalizing moderates, and turning friends into enemies.

America's reputation in the world has never been particularly high in my lifetime.


That's no excuse for making it worse. And when we do so, there is a strategic cost that is ultimately paid in lives.

Any information on Jihadi recruiting is suspect, but everything I've seen points to a spike in recruiting immediately following 9/11, before any of this information came out.


Pay attention to someone who's been there:

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.


=================
anderson:

As I understand the memos, Bybee authorized it on the theory that no water actually entered the nose/mouth.


Bybee doesn't actually say that, but he implies it. He does say this:

The individual does not breathe any water into his lungs.


Which is somewhere between wishful thinking and an outright lie. Bradbury (5/10/05) says this:

we understand that water may enter — and may accumulate in — the detainee’s mouth and nasal cavity, preventing him from breathing.


As I explained here, once it's in your "mouth and nasal cavity," there's no reason to think it's going to stop before it gets to your lungs.

Water in the passages, I think, besides resembling more closely Japanese (and American-in-the-Philippines) "water cures," would also seem to increase the chance of actually drowning, not "just" smothering.


It should be emphasized that what we did entailed "water in the passages." WSJ and probably others are spreading misinformation about this.

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

The critical issue is whether water reaches the lungs, at which point it can cause suffocation (if too much) or pneumonia. If you've spent much time in a dentist's chair, you know that having water introduced into "the passages" does not mean that it will reach the lungs. Otherwise, you'd never be able to drink liquid.


Complete nonsense. The whole idea of waterboarding is to make sure your mouth and nose are covered with water while you inhale. Then the act of inhaling draws the water into your "mouth and nasal cavity." Since you're inhaling, what is going to stop it from reaching your lungs?

And when was the last time your dentist filled your "nasal cavity" with water?

There's also, of course, the difference in intent between our approach and the Japanese.


What's the difference in "intent?" We're righteous and they're evil?

A blanket ban on torture means some unknown number of innocent Americans will die as a result.


Cite?


That's precious. Really precious.


The world outside of law does not require cites for all fact determination or risk management.


Hmm, let's see. You have no proof that torture has ever saved lives. You have no proof that the absence of torture has ever cost lives. But we're just supposed to take your word for it. Is that it? Just like we're supposed to magically understand why sodomy is out and waterboarding is in, even though you've don't deign to describe the magic rule you've invented to set them apart?

=================
sagar:

but seriously do you think all business decisions/discussions revolve around "cite?"


"Cite" is just another word for 'facts' or 'proof.' And "all business decisions/discussions" are indeed based on fact, unless they're irrational. By definition.

What do the union rules say about the govt punishing its members for following orders (or 'The Law' as promulgated by the OLC - to paraphrase one of the posters above) in good faith?


I don't know. But it's important to recognize that the memos indicate that the CIA didn't follow the limits described in the memos (even though those limits themselves were extreme and indefensible). As adler mentioned in the OP. That seems to indicate an absence of "good faith" somewhere in the system.

It is very likely that torture will yield good intel.


Then explain this.

this ritualistic "cite?" for every claim a commenter makes is silly. much of what we post here are opinions.


Opinions are fine. Opinions masquerading as facts are not. Some people here routinely present the latter.

I've already stipulated there's no point in leaning on someone for information you can't validate.


If and when the facts come out, I think we will discover the way that we 'validated' info was by finding someone else to torture, and keeping at it until they 'validated' exactly what we needed 'validated.' So torturing person B didn't have to produce information that was true. It only needed to produce information that made the results of torturing person A look true (or at least the portion that suited the narrative we were trying to construct). And so on. Repeat and rinse.

=================
oren:

interrogators have no idea whether or not the detainee is withholding more information from them and have to either continue interrogating or give up based on pretty much nothing.


Yes. I would really like to hear someone explain how it was known that 183 was the proper number of times to waterboard KSM.

=================
bart:

Putting McConnell's words in my mouth is a strawman argument.


No it's not, because you're both making essentially the same indefensible claim.

Given the time constraints, the initial attempts at conventional interrogation did not produce timely actionable intelligence.


Given that we arrested KSM on 3/1/03 and waterboarded him 183 times in 3/03, what's your assessment of how much time and effort was devoted to those "initial attempts at conventional interrogation?"

And since you're claiming that those "initial attempts at conventional interrogation did not produce timely actionable intelligence," where is your proof that torturing him created a result that was significantly different? I mean proof that doesn't require a belief in time travel. Or similar claims that disintegrate under scrutiny.

I did not limit my comment to domestic attacks. al Qaeda hit us overseas on multiple occasions [during Clinton's term]


True. So Bush made their job easier by putting a bunch of us on their home turf, so they could hit a bunch of us at once, and still make it home in time for dinner. "Bring them on!"

you critics rely upon anonymous, uncorroborated sources to spin your alternative fantasy world


Whereas you rely on the uncorroborated, undocumented statements of people like Bush and Cheney, who have a distinct track record of making statements that turned out to be false. Fool me once etc (video).

Who gives a flip what the Senate concludes for its own political reasons?


Now you tell us. When the same Senate committee (with virtually identical control and membership) issued a report in 2004 that diverted blame from Bush to the CIA, your gang didn't say "who gives a flip what the Senate concludes for its own political reasons." On the contrary. Instead, the report was cited incessantly. So your "who gives a flip" responses are highly arbitrary and selective.

Anyway, it's nice to know that a Republican-controlled committee has "its own political reasons" for pointing out that Bush misled us about Saddam and AQ. Makes perfect sense. So we shouldn't trust Democrats when they criticize Bush, and we shouldn't trust Republicans when they criticize Bush. Who should we trust? Bush. Welcome to Bart-world.

You are welcome to rebut the extensive documentary evidence from Iraqi Intelligence disclosed to the public and described in the Pentagon report on classified undisclosed documents I offered


There's nothing to "rebut." That report says this:

This study found no "smoking gun" (i.e., direct connection) between Saddam's Iraq and al Qaeda.


(I have already pointed that out to you, and so has PC.) So "rebut" is what that report does to you.

This was just the evidence gained from a tiny fraction of captured Iraqi docs. There are 600,000 more yet to be read.


Keep hope alive. And don't stay up past your bedtime.

=================
oren:

Some other big ones:

I'm OK with having Americans die as the result of giving suspects a fair trial.


A good and very important list. And more generally:

I'm OK with having Americans die as the result of us being a democracy, instead of a dictatorship. Because the former will always be fundamentally harder to defend. Freedom isn't free.
4.22.2009 8:57pm
Bob from Ohio (mail):

Just because some fringe elements won't accept it doesn't mean that such a commission could not operate in a bipartisan manner or that it's conclusions and recommendations would not be accepted by the public generally.


What's a fringe? Around 1/3 will reject it ab initio, another /13 wil accept anything it decides.

I think you will be surprised about the middle 1/3 will conclude. Show trials don't have a long tradition here and Khalid Muhammed (sic) won't make the most sympathetic "victim".
4.22.2009 8:59pm
Just an Observer:
I don't think Obama really believes that prosecutions are worth the effort.

I think that's an understatement. Obama obviously perceives such a thing to be against his political interests, which creates a dissonance with his articulated principles. Politics was winning out, until Emanuel spoke Sunday.

I also thought Emanuel's comment was obviously out of line, and said so. But if it takes gaffes like that to force events in the right direction in spite of the political interests, let's hope he is booked on TV more often.
4.22.2009 9:03pm
jukeboxgrad (mail):
Khalid Muhammed (sic) won't make the most sympathetic "victim".


The victim is not KSM et al. The victim is American values, credibility, and the rule of law.
4.22.2009 9:04pm
PC:
Are any of the soldiers that were tossed in jail for their roles at Abu Ghraib going to be able to appeal? It's clear that this stuff came from the top down and the soldiers were just following orders.
4.22.2009 9:08pm
Anderson (mail):
Obama obviously perceives such a thing to be against his political interests, which creates a dissonance with his articulated principles.

Or he's finding out that Isaiah Berlin was right, and that goods can be incompatible.

I can certainly understand his argument: "I want expanded health care, I want financial regulation, and this torture crap is going to keep everything hyperpartisan. The greater good requires me to 'look forward.'"

I would find that more persuasive if the GOP weren't always already going to oppose everything he does, just because he's doing it.
4.22.2009 9:12pm
Anderson (mail):
On the lighter side, the Onion has two "news in brief" articles of direct relevance to this thread:

Seymour Hersh Uncovers New Thing Too Sad To Think About

Stupid Man Overshadowed By Louder Stupid Man
4.22.2009 9:20pm
Benjamin Davis (mail):
If we insist, the will prosecute.
Best,
Ben
4.22.2009 9:51pm
Benjamin Davis (mail):
If we insist, they will prosecute.
Best,
Ben
4.22.2009 9:51pm
Benjamin Davis (mail):
The "facts" in the memos are a false narrative carefully constructed like a law school hypothetical. For example, the Abu Zubaydah trope of no. 3 in Al-Qaeda. Other senior officials say it was clear very early he was not that sophisticated actor.

I encourage people to watch former Brig General Janet Karpinski's intervention on Countdown tonight. She remembers the soldiers who were court-martialed at Abu Ghraib for doing the things approved by the top of the Bush administration (see Senate Armed Service Committee report of today). She thinks the sollicitude for the CIA interrogators (whose contractors were giving the guidance to the Abu Ghraib soldiers) is crap. She got very livid and asked where was the Vice President five years ago to defend the soldiers who were court-martialed.

Her other idea is that if we have some commission to investigate, because this was an international coalition in Iraq the commission should be an international commission made up of members of all the coalition forces. This would lead to the international standard being part of the discussion rather than this internal American game in the DC echo chamber. I thought the idea was brilliant.

Best,
Ben
4.22.2009 9:57pm
Lucius Cornelius:
I find this reading this thread to be torture!

What I want to know is: are we allowed to use discomfort as one means of trying to get information from captured terrorists? If so, how much discomfort are we allowed to use?

How about intense questioning? 10 hours a day in a chair getting asked questions again and again. No threats. Nothing physical at all. Food, water, and bathroom breaks allowed. At some point, the subject is going to start feeling very uncomfortable. Is this torture?

I fear that we are diluting the definition of "torture." We end up in the situation that putting a subject in stress positions for a period of time gets lumped together with mutilation (fingernail pulling, burning with a hot iron, amputation of fingers, toes, and limbs).

I don't think that the practices engaged in by the CIA were likely to lead to more awful treatment of subjects. The focus seemed to be on causing some pain, but not too much. That is different from a situation where there may be no limit at all on what is done.
4.22.2009 9:58pm
Anderson (mail):
What I want to know is: are we allowed to use discomfort as one means of trying to get information from captured terrorists?

The Torture Act bans severe pain or suffering, so no, "discomfort" is in-bounds, subject to Common Article 3.

How about intense questioning? 10 hours a day in a chair getting asked questions again and again. No threats. Nothing physical at all. Food, water, and bathroom breaks allowed. At some point, the subject is going to start feeling very uncomfortable. Is this torture?

No. I don't think anyone *here* has suggested it is. Discomfort is not torture.

Extremities of forced standing, sleep deprivation, etc., go beyond "discomfort." You can google them &find out. (Try "stoika" re: standing.)

Remember that the memos' methods were *combined* and perpetrated to extremes. Imagine forced standing for 12 or 24 hours, hypothermia, and five days of no sleep. Repeated. Over and over.

We know that such methods broke NKVD's prisoners into confessing utterly false crimes. We know it broke our pilots into confessing things they didn't do.
4.22.2009 10:06pm
Leo Marvin (mail):
The torture advocates may be right. We didn't torture Ahmed Chalabi, Scooter Libby or Judith Miller, and look at the quality of intel we got from them.
4.22.2009 10:19pm
rosetta's stones:
What I want to know is: are we allowed to use discomfort as one means of trying to get information from captured terrorists?


The answer seems to be yes, per Barrack. He's continuing the policy of coercive interrogation, with a little window dressing about how we mustn't erode our values or some such blather.

Barrack's press secretary announced in response to Cheney that this is a disagreement about "policy".

So, we can put aside the law discussions... because it's policy, per the current and previous presidents. Holder is an unprincipled political animal, he'll go with Barrack on this. .

No need for the foolish commission idea. If we need to discuss this policy, that's why we have a Congress. Let's have the discussion. It'd be interesting. We can question KSM and the other 2 guys, and ask them how they enjoyed their time with us. And check whether we got anything useful from them. The congresscritters can all pontificate, and then we can get back to coercive interrogations.

Afterall, that's Barrack's policy.
4.22.2009 10:23pm
MarkField (mail):

This line of reasoning strikes me as dubious when applied to government actions. We have laws against extortion, and an individual robber would not be let go because his extortion was successful. Yet the government extorts money from us all the time in the form of taxes. If an extortionist then imprisoned people who did not pay him, his crime of kidnapping would not be excused because his kidnapping successfully caused people to pay him extortion money. Yet the government can imprison people for failure to pay taxes (unless they're nominated to the Obama cabinet).


I think Anderson responded well to this Randian nonsense.


As someone who is not a part of the legal profession, and also a devoted lifelong liberal, I read many of the articles and their accompanying comments to learn more about the law. Unfortunately, much of this line is devoted to complaining, name calling, and personal feelings. What about the law?


This is far from the first or even the eleventy first discussion of this issue here. We've gone over the legal issues in depth, including cites in this thread (as Anderson noted).
4.22.2009 10:30pm
John Moore (www):
PC

Are any of the soldiers that were tossed in jail for their roles at Abu Ghraib going to be able to appeal? It's clear that this stuff came from the top down and the soldiers were just following orders.

Yeah, I'm sure they had orders to have sexual orgies while on duty. That was a bunch of out of control troops who were NOT doing what was ordered.
4.22.2009 10:46pm
John Moore (www):
Ben writes...

I encourage people to watch former Brig General Janet Karpinski's


Yeah, now there's a really credible witness. The person in charge of the Abu Ghraib miscreants.

Note that these "soldiers" (as a former soldier, I use the scare quotes advisedly) were already being investigated by the army, which had been briefed to the press, months before the story suddenly became the Bush Bashers' favorite breakfast during the 2004 campaign.
4.22.2009 10:59pm
PC:
That was a bunch of out of control troops who were NOT doing what was ordered.

I thought it was a bunch of fraternity pranks?
4.22.2009 11:02pm
My Middle Name Is Ralph:

What's a fringe? Around 1/3 will reject it ab initio, another /13 wil accept anything it decides.

I think you will be surprised about the middle 1/3 will conclude.


Even accepting your numbers, 2/3s of Americans agreeing on anything would be pretty good.

As to what the report will conclude, I'm willing to have beliefs about the efficacy of torture examined and scrutinized. If I'm wrong and torture really is a huge net plus for American security, then perhaps I need to rethink my beliefs. I expect those who advocate torture to have a similarly open mind. Of course, some dead-enders will cling to their belief in torture no matter what the evidence says. That fact does not negate the utility of such a commission.
4.22.2009 11:22pm
My Middle Name Is Ralph:

The answer seems to be yes, per Barrack. He's continuing the policy of coercive interrogation, with a little window dressing about how we mustn't erode our values or some such blather.


Obama has in fact banned all interrogation techniques not listed in the Army Field Manual, which do not contain any of the CIA interrogation techniques at issue. That is the current standard as a matter of public record.
4.22.2009 11:39pm
TGGP (mail) (www):
What Dennis Blair really thinks.

I think torture was successful in Algeria. But I don't trust the bunch of yucks in government to seek the truth from these interrogations and think the possibility of abuse is just too obvious.
4.22.2009 11:49pm
jukeboxgrad (mail):
lucius:

I don't think that the practices engaged in by the CIA were likely to lead to more awful treatment of subjects. The focus seemed to be on causing some pain, but not too much.


When we prosecuted the Japanese for waterboarding (with a technique very comparable to ours) we had no interest in letting them claim that "the focus seemed to be on causing some pain, but not too much."

And you seem to be giving the CIA credit for respecting limits. Which is ironic, because the memos reveal that the CIA violated limits set by the memos.

That is different from a situation where there may be no limit at all on what is done.


We beat people to death. That qualifies as "no limit at all on what is done."

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

That [Abu Ghraib] was a bunch of out of control troops who were NOT doing what was ordered.


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

And we realize you're going to keep on making the same bogus claims while not making even a pretense of addressing the contrary evidence that's already been presented. Yet another sign that you don't expect to be taken seriously.

It's important to understand the GOP concept of personal responsibility. They're deeply commited to it. Here's how it works: make sure to find some little guy who can be forced to accept personal responsibility. Then the big guys can get off scot-free and do what they do best: clear brush and shoot their friends in the face.
4.23.2009 12:14am
John Moore (www):
JBG, once again you caused me to waste a lot of time. The poorly written sack of innuendo in your Taguba link does not say what you imply, and I suggest that if you are going to use a "cite" - you pull out what you think is relevant os I don't have to wade through 9 pages of dreck.
4.23.2009 12:48am
John Moore (www):
For a more balanced look at all of this, click here.
4.23.2009 12:49am
Just an Observer:
Apropos of the title of this post, the overnight New York Times has this news analysis piece: At Core of Detainee Fight: Did Methods Stop Attacks?.

It includes this nugget of information, which is not new news but was new to me:

In an interview with Vanity Fair last year, the F.B.I. director since 2001, Robert S. Mueller III, was asked whether any attacks had been disrupted because of intelligence obtained through the coercive methods. “I don’t believe that has been the case,” Mr. Mueller said. (A spokesman for Mr. Mueller, John Miller, said on Tuesday, “The quote is accurate.”)
4.23.2009 12:59am
jukeboxgrad (mail):
moore:

The poorly written sack of innuendo in your Taguba link does not say what you imply


More baloney from moore. 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:

Abu Ghraib Investigator Points to Pentagon … senior defense officials were involved in directing abusive interrogation policies


Those "abusive interrogation policies" started at the top.

As usual, you're not making even a pretense of showing proof to back the claim you made. Taguba did indeed say precisely what I said he said.

I suggest that if you are going to use a "cite" - you pull out what you think is relevant


I did exactly that, here. In a thread where you posted 44 times. And here I addressed you and pointed you to that comment.

It's not my fault you're posting in threads while not bothering to read the thread. Here's a suggestion for you: if you're going to accuse me of doing something, make sure it's something I actually did.
4.23.2009 1:02am
einhverfr (mail) (www):
John Moore:

Interesting link.
4.23.2009 1:19am
RPT (mail):
Interesting link perhaps, but certainly not balanced, as it takes Cheney's statements at face value. His request for memoranda to be released was made weeks ago in connection with his memoir writing. He does have a history of convenient declassification.
4.23.2009 1:55am
Oren:

I'd say its more tragic, but it's not more evil.

Really? A man being tortured for information that he doesn't know is not worse, in some marginal way than a man that actually has a way to stop that treatment?
4.23.2009 2:22am
John Moore (www):
JBG - You take little snippets out of context. Taguba did make those statements, but according to the article, he had no evidence of them. The article is full of innuendo, of suppositions, etc. The facts in it do not contradict what I wrote.

Furthermore, it conflates two things: the horrible behavior revealed in the sensational photos that came out, and the stress positions, etc, used by MI.

Those are separate issues. The photos were a result of a few MP's (and a girl friend not in the unit) who had a nasty and sadistic party (and were even stupid enough to photograph it - which I doubt you consider policy handed down from above). It was a national guard unit obviously inadequately supervised and disciplined, and probably not appropriately trained.

In other words, when I actually waste the time to wade through your long posts and the related "cites," they don't say what you claim.

If you actually wanted to communicate, you would say what the cite supposedly establishes, and quote the parts and context that supports your point.
4.23.2009 2:55am
John Moore (www):
Oren:


A man being tortured for information that he doesn't know is not worse, in some marginal way than a man that actually has a way to stop that treatment?


it is more tragic, as I said. It is not more evil, because his torturer, in the scenario I was responding to, had no knowledge that the man did not have the information. If evil is involved, it is in the actions and motivations of the torturer, not the unknown situation of the torturee. The actions and motivations are not different in the two cases.
4.23.2009 2:56am
Anderson (mail):
I think torture was successful in Algeria.

Alistair Horne wrote the book on the war in Algeria, and he thinks torture wasn't successful there, for moral, political, and practical reasons.
4.23.2009 7:38am
rosetta's stones:
"Obama has in fact banned all interrogation techniques not listed in the Army Field Manual..."
.............................

Sure, that's his policy this morning. Tomorrow, he can change it, or next year, as can the next president.

It's a policy issue, and Obama agrees with the policy principle of coerced interrogation.
4.23.2009 7:53am
tsotha:
Do you believe you would be able to refrain from giving your correct address to someone who was torturing you, even if you really, really didn't want to?
Depends. Do I think you will go and kill my kids? In that case, sure.
I think you're wrong about that, because the guy turning the screws would tell you he was just planning to stop by to water your plants, and by the end you'd force yourself to believe him.
4.23.2009 8:17am
Calderon:
Anderson said:


Yet the government extorts money from us all the time in the form of taxes.

Calderon, I see that you are unfamiliar with the American system of government. Allow me to explain.

In America, we elect representatives to a legislature, who then enact statutes, including taxation.

No tax is legally collectable without being authorized by the elected representatives.

Therefore, taxation is not comparable to extortion.


You're missing the point; indeed, my point was the opposite which is that we allow the government to do things we would not allow private citizens to do. Thus, comparing torture to robbery by private individuals is irrelevant.

Under your logic, I could just as easily say that you're unfamiliar with the American system of government when it come to interrogation. In America, we elect a President who has the responsibility for protecting the nationa from foreign threats. No forms of interrogation are legal without being authorized by the President or his representatives. Therefore, interrogation used by the government is not comparable to torture.

If your rebuttal is going to be "well, the President needs to be authorized by a statute for 'enhanced interrogation," my response is: would that really change your position? Would you say torture is okay so long as Congress passed a statute authorizing water boarding or whatever else the President wanted to do? Unless you would, your response is irrelevant.

To return to my original point, MarkField's reasoning in his original post is just bad. We don't punish acts because they're "too successful." We punish them becaue they're morally bad, which depending on your philosophy could be an absolute rights position, a utilitarian position or whatever. But an act having positive consequences doesn't figure into it being bad under any moral or political system I'm aware of (though under utilitarianism it's effectiveness would count in its favor).

And when it comes to government, we regularly allow it do things we would not tolerate from private citizens. This is true for all political philosophies except anarchism, as even strict libertarians of the night watchmen variety who would have police (subject to the judiciary and other checks) exercise powers regular citizens could not. To circle back to my original sentence, this is why statements like:


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.


are irrelevant to this debate and the product of faulty reasoning.
4.23.2009 8:36am
Anderson (mail):
You're missing the point; indeed, my point was the opposite which is that we allow the government to do things we would not allow private citizens to do.

Maybe I missed your point because you chose an exceptionally poor example?

If your point is simply that government has a monopoly of force, that's true (supposedly!), but that doesn't mean there are no restrictions on that use of force.

If your rebuttal is going to be "well, the President needs to be authorized by a statute for 'enhanced interrogation," my response is: would that really change your position? Would you say torture is okay so long as Congress passed a statute authorizing water boarding or whatever else the President wanted to do?

You're conflating legality with morality (and with practicality). If Congress repealed the Torture Act and the War Crimes Act, and if the U.S. withdrew from the Geneva Conventions, then it might be legal for the President to order torture. That is not the same as "torture is okay."
4.23.2009 9:01am
Anderson (mail):
Obama agrees with the policy principle of coerced interrogation.

I'm sorry -- do you have any evidence for that whatsoever?

Or is the idea for y'all to repeat that until everyone believes it?

Smarter trolls, please!
4.23.2009 9:02am
Calderon:
Anderson -- let's actually go back to the post to which I was responding, which states in full:


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.


There are two problems I had with this argument. One is that we reglarly allow the government to engage in actions we would not let private citizens do. And this is true for all political philosophies except anarchism, even "Randian nonsense." Thus, the example of robbery with Dillinger is inapplicable for the same reason that (at least for some functions) no non-anarchist would challenge all taxes or challenge all punishments for non-payment of taxes. Of course, that doesn't mean all government activities are fine, far from it. But it does means one needs to keep the distinction in mind, especially when dealing with questions of defense against foreign enemies. So one problem with the quoted argument above is it uses an example of private activity to attack government activities, which isn't an apples to oranges comparison for non-anarchists. (And nothing in this paragraph is meant to imply criticism of anarachists, but since MarkField doesn't seem to be an anarchists their position isn't relevant here)

The second problem is that something working or being successful is not a reason in and of itself for prohibiting that activities. A bank robbery that nets $1000 dollars will be punished, as will one that nets $10,000,000. More generally, under any moral or philosophical system I'm aware of, the success of something like torture is not a reason against its use. Torture's success would be either irrelevant under rights-based theories or a positive under utilitarian theories. (Of course, maybe there's some system I'm not aware of that someone will flesh out).

As far as your claim that I'm conflating morality and legality, that doesn't really have much to do with my points above because you misunderstood my original post. In any case, that was a response to your argument that taxes aren't extortion because they are authorized by a government. Your argument there is itself a conflation of legality and morality; that such taking of money may be legal does not make it moral.
4.23.2009 9:40am
rosetta's stones:
Well let's see, Anderson.

Barrack is treating coerced interrogations, as performed under Bush, as a policy disagreement. Not a legal issue, or criminal... but rather policy. Sorta like, Bush wants to pump, say $30B into GM and Chrysler, while Barrack wants to give them, say $45B.

He's tailored the policy, well, because he's the new boss and wants to address the "disagreement" (or at least convince you that he has).

He's chosen to administratively address the disagreement, no further action required. He's left future changes in play, both his and others, so he's obviously reserving the policy. Why? Could it be he doesn't disagree with the policy of coerced interrogations? He's not much saying so, if he doesn't.

I'd agree with you, that 100 days on, there isn't much evidence here... just words. But, I've seen enough words from enough politicians to read between them, and know that only actions count. I see no firm action to reject coercive interrogations as a principle. YMMV.
4.23.2009 9:43am
Anderson (mail):
Barrack is treating coerced interrogations, as performed under Bush, as a policy disagreement. Not a legal issue, or criminal... but rather policy.

No. He's announced that he won't prosecute CIA interrogators who followed the legal advice presented in the OLC memos. That is a pretty standard attitude -- it's why CIA wanted the OLC memos in the first place. Obama has left open prosecutions of (1) CIA personnnel who exceeded the scope of the memos and (2) the memos' authors themselves.

Could it be he doesn't disagree with the policy of coerced interrogations? He's not much saying so, if he doesn't.

Apparently you missed his Jan. 22 executive order, which says, inter alia:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense.

An executive order is an "action."

Better-informed trolls, please.
4.23.2009 9:58am
Anderson (mail):
Calderon, I can't say I disagree with you, because I have no idea what your last comment is talking about. I guess you need smarter interlocutors (oops, there I go again).
4.23.2009 10:00am
Just an Observer:
For the record, Sens. McCain, Graham and Lieberman have weighed in with a joint letter to Obama. The gist of their prososal: Do nothing.

The senators did allow as how completing the pending OPR investigation might be okay.

I concur that OPR is the appropriate venue at the moment for action within DOJ. But the senators, like Raum Emanuel, seem to be prejudging the larger questions for political reasons.
4.23.2009 10:05am
Anderson (mail):
The gist of their proposal: Do nothing.

Saw that at Unfogged yesterday. It includes one of the stupidest things ever written by a U.S. senator:

We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client – the U.S. Government – with their best legal advice.

(1) So they think the Judges' Trial was a bad idea? If only we'd had Graham and McCain at Nuremberg to protect those poor Nazis!

(2) The fear of prosecution for offering deliberately shoddy, results-oriented "advice" ... is somehow going to deter offering one's "best legal advice"? Does - not - compute ... error ... error ...
4.23.2009 10:14am
Calderon:
Anderson -- all my comments in this post have a rather narrow focus on a particular argument of MarkField's (the one I quote in my last post) that I read and with which I disagreed. Also, there are no smart interlocutors on the internet since posting on any blog decreases your IQ by 30 percent.
4.23.2009 10:18am
rosetta's stones:
Anderson, you seem to place special importance in a portion of that memo. Suggest you read the whole thing, including the reference to the "Special Interagency Task Force", which will be reviewing interrogation policy. As we discussed in the other topic, I can drive the Afrika Corps through Barrack's statements on this. It's boob bait.

The creation of that Task Force, in Barrack's first week on the job, let me know that this would all be handled as a policy issue. You probably missed that one, but it's always sort of a big clue if you're paying attention to politics.

I'll make you a bet. Gitmo will be open for business come a year from now, and we'll be slapping terrorists around a year from now. Sleep deprivation, cold, Milli Vanilli on the PA, standing... all of it. And waterboarding too, if Barrack suddenly changes his mind on that portion of the policy.
4.23.2009 10:23am
MarkField (mail):

There are two problems I had with this argument. One is that we reglarly allow the government to engage in actions we would not let private citizens do. ...

The second problem is that something working or being successful is not a reason in and of itself for prohibiting that activities. ... More generally, under any moral or philosophical system I'm aware of, the success of something like torture is not a reason against its use. Torture's success would be either irrelevant under rights-based theories or a positive under utilitarian theories. (Of course, maybe there's some system I'm not aware of that someone will flesh out).


Let me address your second criticism first. From a Kantian perspective, you're right: we'd ban torture because it's a categorical wrong regardless of its effects. More pragmatically, however, those things we criminalize tend to have the characteristic that they involve a wrongful act (battery, say) and the perpetrator can benefit from the act. One reason for banning such conduct is that the perpetrator gets to impose a cost on someone else while benefiting himself (in economic terms, it's an externality). There's a strong temptation to perform such acts, and we impose the power of the law in order to prevent people from doing them.

This was my point about torture. People here are celebrating all the information we supposedly learned from torture. That, however, is precisely why we ban it -- *we* get to benefit at the expense of *someone else's* suffering.

Now to your first point. I agree, we do let governments do things which private individuals generally can't do. That seems irrelevant to me in the context of the current debate. Government actors are not exempt from the torture act (nor the rape statutes, nor the child molestation statutes, etc.). In practice, therefore, your distinction doesn't apply here.

It's true that we could exempt the government from the crime of torture (hell, we don't need to criminalize it at all). But we also recognize (see the CAT) that governments are peculiarly likely to commit the crime of torture (they are the ones with the opportunity to abuse people who can't resist), so there are good reasons to enforce torture bans even more strongly against the government than against private persons.
4.23.2009 11:01am
jukeboxgrad (mail):
moore:

Taguba did make those statements, but according to the article, he had no evidence of them.


As usual, you're completely full of it. The articles I cited are here and here. Please indicate where these articles say that Taguba had "no evidence."

And the full Taguba report, which I haven't cited yet, is here. It contains plenty of "evidence."

Furthermore, it conflates two things: the horrible behavior revealed in the sensational photos that came out, and the stress positions, etc, used by MI.


It conflates those things properly, because those things were all the result of policies set at a senior level.

The photos were a result of a few MP's


Welcome to the GOP concept of personal responsibility: pass the buck to the little guy.

If you actually wanted to communicate, you would say what the cite supposedly establishes, and quote the parts and context that supports your point.


I already did that. Now you should do the same. "Quote the parts" where we're told that Taguba "had no evidence."

====================
perkins, this is a response to what you said here.

the notion we need investigations by Congress instead of investigations of Congress is exploded here


Are you having fun with your straw man? You're citing Hoekstra, who said this:

I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques. Any investigation must include this information as part of a review of those in Congress and the Bush administration who reviewed and supported this program.


Get back to us if you can find a single example of anyone, anywhere, suggesting that members of Congress (D or R) should be given a free pass for their role in condoning torture. Cheney, Yoo, Bybee and Bradbury are entitled to a fair trial. Likewise for any member of Congress that condoned or enable their evil acts.

I have said that before, and many other people in this forum and elsewhere have made similar statements. So the notion you're 'exploding' is a notion that exists nowhere outside your imagination.

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.


What are you claiming has "broad support?" The idea that the rule of law has no meaning? The idea that the president is above the law? The idea that we should exact no price from government officials who lie to us? The idea that torture is unacceptable, but only when other countries do it?

Yesterday Shepard Smith said this:

We are America. … I don't give a rat's ass if it helps. We are America. We do not fucking torture."


A couple of days ago Jonah Goldberg said this:

Sounds Like Torture to Me … I think waterboarding someone 183 times in a month does amount to torture no matter how you slice it.


A couple of days ago the Cato Institute said this:

Of Course It Was Torture … On Thursday, the Obama administration released previously classified memos detailing interrogation techniques used against enemy prisoners. In the memos, Bush administration lawyers assured the CIA that waterboarding detainees and keeping them awake for a week or more was perfectly legal. Bush partisans insist that such methods aren't torture, and that Obama has done grave harm to national security by revealing them. They're wrong on both counts … Imagine if, shortly after 9/11, someone had told you that the US government would adopt an interrogation policy based on Chinese Communist techniques designed to elicit false confessions. You'd have thought that person was pretty cynical. But he'd turn out to be exactly right. … Beaten savagely by Egyptian torturers, one victim of our "extraordinary rendition" program concocted a story about Saddam Hussein giving Al Qaeda WMD training. That story made it into Colin Powell's UN Security Council speech selling the Iraq War. … General David Petraeus issued an open letter to his troops warning against the use of torture: "Adherence to our values distinguishes us from our enemy." That's a principle we should keep in mind going forward.


So please show evidence that there is "broad support" for sweeping all this under the rug. That idea has "broad support" in one place: the rancid remnant of the GOP that you represent.

That water was made to enter the body during water boarding as a matter of intent, as opposed to a matter of happenstance.


What baloney. Right, and if I put a loaded gun to your head and pull the trigger, the bullet will enter your brain as "a matter of happenstance," not "as a matter of intent."

If I pour a steady stream of water on your face while you're trying to breath through a soaked cloth (the purpose of which is to keep air out), the water will enter your mouth and nose not as "a matter of happenstance." It will enter your mouth and nose as a matter of utter physical inevitability.

And when we prosecuted the Japanese for using the same procedure, we didn't let them get away with this sophistry about "happenstance."

And even if water didn't enter the mouth and nose, it's still a form of asphyxiation, and it's still torture.

There is a distinction there because there are actual possible medical consequences of water getting in that might require a fast intubation.


There is also a 'possible medical consequence' of any form of asphyxiation, regardless of whether or not water enters the mouth and nose: it's called 'death.'

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.


According to Taguba, our "abuse of prisoners" was not "occasional." It was rampant, and it was a consequence of policies established at a senior level. So you should explain what you know about this matter that Taguba doesn't.

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.


Torture is not "an inevitable result of confinement." Try making a statement that isn't transparent sophistry.

what you are in fact saying is not that torture is wrong, you are saying that going "this far" is always too far.


Of course I'm saying that torture is wrong. As usual, you're making claims that have no support outside your imagination. And when "this far" is something we prosecuted as torture in the past, then yes, that's "always too far."

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.


They used (at least on certain occasions) a procedure that was indistinguishable from ours. And we prosecuted them for doing so. Let us know your basis for making claims about what they "wanted" as compared with what we "wanted." Is it simply because we are inherently virtuous and they are inherently evil? Even when performing the same act?

If we really wanted to "avoid" having water enter the lungs, we had a perfectly good way to avoid that: refrain from 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.


Please point out where I said that makes "all the difference." Here's what's "simply nonsensical:" the idea that you expect to be taken seriously even though you repeatedly make shit up.

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.


Please explain how torture in 3/03 "led to the discovery" of a plot that had already been "derailed" in 2/02. The Slate timeline is well-documented and drawn directly from government statements. As usual, you are denying plain facts even when they are placed right under your nose. But who needs facts when you can repeatedly invent your own?
4.23.2009 11:19am
Tom S (mail):
Let's see...the use of torture in the Battle of Algiers may have contributed to the rolling up of the FLN network in the city. On the other hand, it did nothing to defeat the FLN elsewhere, destroyed any moral case for the French remaining in Algeria (mission civilatrice??), contributed to the collapse of the Fourth Republic, destabilzed the army, and...the French no longer hold Algeria.

Yep, it worked fine.
4.23.2009 11:22am
jukeboxgrad (mail):
An FBI agent who questioned Zubaydah speaks out in today's NYT:

One of the most striking parts of the memos is the false premises on which they are based. The first, dated August 2002, grants authorization to use harsh interrogation techniques on a high-ranking terrorist, Abu Zubaydah, on the grounds that previous methods hadn’t been working. The next three memos cite the successes of those methods as a justification for their continued use.

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence. …

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. …

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.

One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.


(Emphasis added.) We've been told many times that we resorted to torture only after other methods failed (example). This named eyewitness is now on the record pointing out that this claim is false.
4.23.2009 11:42am
Just an Observer:
Calderon: There are two problems I had with this argument. One is that we regularly allow the government to engage in actions we would not let private citizens do.

Except, of course, that the Torture Act is specifically written to outlaw torture by government actors. That is the statute's whole purpose. The very definition of the crime in 18 USC 2340 begins, "'torture' means an act committed by a person acting under the color of law ..."

Criminalizing Torture -- Not Just a Good Idea. It's the Law
4.23.2009 12:00pm
rosetta's stones:
box,

The guy's an FBI agent, and admits his superiors pulled him and any other agent out of the investigation after it went waterboard, although that doesn't stop him from speculating that investigations "backfired" after he left them... neat trick, that.

How does he know what went on after he left? He doesn' say. I appreciate his opinion, and you should appreciate the admiral's (whichever one is being published today), but those are just opinions.
4.23.2009 12:03pm
jukeboxgrad (mail):
It's amazing to notice how much fiction and misinformation is being circulated. Here's what a couple of WP reporters wrote a few weeks ago:

The application of techniques such as waterboarding … prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction.

Abu Zubaida's revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological "dirty bomb" in an American city.


Follow that? They're telling us we caught Padilla as a result of waterboarding Zubaida. Trouble is, this is another instance of time travel. Padilla was arrested on 5/8/02. The newly-released OLC memos tell us Zubaida wasn't waterboarded until 8/02.

NR conveyed that same falsehood here. And NR conveyed a more extreme version of the same falsehood in 2007, here. They said we arrested Padilla as a result of waterboarding KSM. Trouble is, we arrested Padilla before we arrested KSM. And KSM wasn't waterboarded until 3/03. More time travel.

What the facts demonstrate over and over again is that those who torture and condone torture are also perfectly comfortable lying, and conveying falsehoods. And of course there's nothing surprising about that.
4.23.2009 12:04pm
jukeboxgrad (mail):
rosetta:

How does he know what went on after he left?


Duh. He wasn't in the room ("after he left"), but he probably has personal relationships with people who were. He is not claiming to be offering speculation and opinion (when he says "alternative methods … backfired"). He is claiming to be offering fact. But feel free to suggest, without evidence, that's he's a liar. Meanwhile, there is lots of incontrovertible proof that the torturers and their defenders have been spreading blatant falsehoods.
4.23.2009 12:13pm
jukeboxgrad (mail):
NR conveyed that falsehood about Padilla on multiple occasions. Here's another example (7/6/07):

Khalid Sheik Mohammed’s lips were sealed until he experienced a few minutes of unpleasant but non-fatal waterboarding. Then he wouldn’t shut up. With his guidance, counterterrorists nabbed accused Islamo-butchers Majid Khan, Bali bomber Hambali, Rusman “Gun Gun” Gunawan, Yazid Suffat, Jose “Dirty Bomber” Padilla, and Iyman Faris, who plotted to plunge the Brooklyn Bridge into the East River.


A "few minutes?" How about 183 times? And how did waterboarding KSM in 3/03 lead to the arrest of Padilla on 5/8/02? Answer: time travel.

When is NR going to run a correction? And why would any honest person take any of their claims at face value, given this track record?
4.23.2009 12:24pm
Anderson (mail):
and the perpetrator can benefit from the act

Indeed, intent to benefit is usually the motive for committing crimes. We don't usually have to pass laws against cutting off one's own fingers with a hatchet.
4.23.2009 12:29pm
Anderson (mail):
Wow, that Soufan op-ed is amazing, JBG. Thanks for the link -- there has been literally too much for me to follow since the new memos were released.
4.23.2009 12:31pm
Anderson (mail):
Re: "discomfort":

In December 2002, two detainees were killed while detained by CJTF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were directly contributing factors in the two homicides.

Quoted from the Senate Armed Services Committee report, which I have not alas had time to read yet (see "literally too much," above ... plus some errant judges whose misapprehensions require correction ...).
4.23.2009 12:38pm
rosetta's stones:
box,

Come on, the guy's offering opinion, not a fact in sight. EVERYBODY'S offering opinion on this if you notice. Cheney and the rest of the Fourth Reich are offering opinions, but at least they have read the reports, unlike this FBI agent. The admiral has likely read all of it, and we have his opinion(s) as well. It's a policy issue... people disagree.

And since it's a policy issue, you really should push for Congressonal investigations. That's really the only avenue, because Barrack and Holder stand as a stone wall against this legal approach I'm seeing in here. They're just going to keep tossing out the boob bait.

Hold some hearings... bring on the tv cameras... THAT would be good.
4.23.2009 1:13pm
PC:
Thanks for the link jbg. I was wondering if Soufan was going to pop up again. He was the agent that cracked an al Qaeda guy in Yemen that gave us the identities of the 9/11 hijackers. Soufan did that by tradtional interrogation methods. Soufan won the terrorist over and the terrorist spilled his guts. Here's the article that I linked to up thread.

Abu Jandal conceded that he knew Shehhi and gave his Al Qaeda nom de guerre, Abdullah al-Sharqi. He did the same with Khaled al-Mihdhar and five others, including Mohammed Atta, the lead hijacker. But he still insisted that bin Laden would never commit such an action. It was the Israelis, he maintained.

“I know for sure that the people who did this were Al Qaeda guys,” said Soufan. He took seven photographs out of the book and laid them on the table.

“How do you know?” Abu Jandal asked. “Who told you?”

“You did,” said Soufan. “These are the hijackers. You just identified them.”

Abu Jandal turned pale. He covered his face with his hands. “Give me a moment,” he pleaded. Soufan walked out of the room. When he came back, he asked Abu Jandal what he thought now. “I think the Sheikh went crazy,” he said. And then he told Soufan everything he knew.
4.23.2009 1:17pm
PC:
Come on, the guy's offering opinion, not a fact in sight.

You might want to read up on who "the guy" is. He was an FBI agent that was successfully breaking al Qaeda members. I know it offends the sensibilities of torture apologists, but professionals like Ali Soufan were doing fine in breaking these guys that were the "worst of the worst" by using proven interrogation techniques.

As far as a lack of facts?

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber.

"We" in that context includes Agent Soufan. Or are you calling him a liar? Also:

I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified

So here we have a former FBI special agent (he works for Giuliani &associates now and was called a "national treasure" by John O'Neill) that has personal experience with interrogating terrorists telling us that normal methods work fine and alternative methods can backfire. Look, no facts! Hee hee.

I will say this passage adds a new angle:

(It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

Who were the contractors?
4.23.2009 1:29pm
tsotha:
Follow that? They're telling us we caught Padilla as a result of waterboarding Zubaida. Trouble is, this is another instance of time travel. Padilla was arrested on 5/8/02. The newly-released OLC memos tell us Zubaida wasn't waterboarded until 8/02.

It's possible they arrested Padilla on a different charge and then rearrested him based on something they learned as a result of Zubaida's testimony. I dimly remember Padilla's status changing a couple of times, though I couldn't google up anything authoritative.
4.23.2009 2:01pm
rosetta's stones:
Oh nobody's claiming that interrogations of all types don't produce intelligence, PC (except you who claim that coercive interrogations DON'T do so). I'm sure this guy got something done.

You missed what box saw right off, that the guy couldn't know what "backfired" in those coercive interrogations, because he also admitted in that article that he wasn't involved with the investigations after they went waterboard, by FBI policy. It's not what I'm saying... it's what he said in that article. Read it for yourself.

Thanks for pointing out that he was "reading between the lines" on those memos, rather than having first hand knowledge. Again, he admits the limitations of his knowledge, and in the very article you're trumpeting.

Face it, the guy's giving opinion, same as you and I. The FBI wasn't involved with these investigations after they went waterboard, by this guy's own admission.
4.23.2009 2:03pm
Anderson (mail):
How do y'all take every ... single ... fact against your position and find yourselves having to find *some* reason why it must be false?

It's like creationists and Holocaust deniers, as I said above.
4.23.2009 2:18pm
PC:
Oh nobody's claiming that interrogations of all types don't produce intelligence, PC (except you who claim that coercive interrogations DON'T do so).

I've never claimed torture won't get some type of information. After all, plenty of women admitted to being witches after being put to the strappado, er, in a stress position.

that the guy couldn't know what "backfired" in those coercive interrogations, because he also admitted in that article that he wasn't involved with the investigations after they went waterboard, by FBI policy

I see your confusion. You just want to make stuff up. Here's what Soufan actually wrote:

I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.
...
Fortunately for me, after I objected to the enhanced techniques, the message came through from Pat D’Amuro, an F.B.I. assistant director, that “we don’t do that,” and I was pulled out of the interrogations...


So Soufan was present when they started using the techniques and saw them backfire in identifiable cases. He objected to the techniques and the FBI pulled their agents out. It's not really that hard to follow the timeline.

But with people claiming that our interrogations of a prisoner in 2003 stopped terrorists plots in 2002, I can see where some people may have problems with the idea of linear time.

Thanks for pointing out that he was "reading between the lines" on those memos, rather than having first hand knowledge.

Soufan read between the lines about who was asking to use torture. iirc, the use of contractors to commit torture came up in Iraq and Afghanistan too.

Smarter trolls please.
4.23.2009 2:19pm
Steve P. (mail):
Very interesting op-ed, JBG, thanks. Also thanks to Anderson and PC for cites actually supporting their position.

I'm still waiting for an articulated and substantiated support of torture and/or waterboarding.
4.23.2009 2:24pm
Calderon:
MarkField said:


Let me address your second criticism first. From a Kantian perspective, you're right: we'd ban torture because it's a categorical wrong regardless of its effects. More pragmatically, however, those things we criminalize tend to have the characteristic that they involve a wrongful act (battery, say) and the perpetrator can benefit from the act. One reason for banning such conduct is that the perpetrator gets to impose a cost on someone else while benefiting himself (in economic terms, it's an externality). There's a strong temptation to perform such acts, and we impose the power of the law in order to prevent people from doing them.


Thanks for the substantive response. Of course, the Kantian perspective is one system. A utilitarian presumably would have a different perspective where the overall effects of torture, including but not limited to the value of the information received, informed the question of whether it was moral. And even under a rights based system one can argue that if another person participates in or plans a terrorist act that they waive any rights against torture (though we don't apply this to domestic criminals).

With that out of the way, arguing about externalities is still too broad. Almost all law enforcement techniques benefit the perpetrator or state while imposing costs on a suspect. This is true of Terry stops, executing search warrants, interrogations, arrests, imprisonment, etc. It's also true of fighting wars, even defensive wars such as in WWII versus Japan. That torture imposes a costs on one person while benefitting another can't in and of itself be the reason for prohibiting it.

And the above paragraph is also my rebuttal to your response to my second point. When it comes to the areas of both law enforcement and national protection (among others), virtually everyone accepts there are actions that the government can take that private citizens should be prohibited from. The question becomes why torture is outside the acts that we let government do, which can't be answered by saying that there are some acts we prohibit government from doing.
4.23.2009 2:36pm
rosetta's stones:
You're right, it's not too difficult to follow the timeline, and this guy in the article that you're trumpeting told us that the FBI "could have no part in the investigation" once it went waterboard. So his timeline ended right then. And yet this same guy is claiming that he knows what happened in the investigation after it went waterboard. Nope, sorry, nary a fact in sight, there.

He has an opinion. Just like you and me and Cheney and the admiral.... and Barrack, who appears to be reserving coercive interrogations as policy.

I think that's what's bothering you guys more than anything. It ain't Darth Cheney stonewalling your holy work... it's Barrack and Holder. Believe me, you won't get no traction with those 2. They see you guys gulping the boob bait, so they'll keep throwing it.

If you want any satisfaction, you better plan on getting this into a Congressional investigation. Hey, I got no dog in this fight. If we don't want to waterboard terrorists, then we shouldn't waterboard terrorists. But there's 535 opinions I DO want consulted, and on the record.
4.23.2009 2:41pm
dr:
CONFIDENTIAL TO ROSETTA'S STONE:

Referring to the president of the United States only by his first name -- and intentionally misspelling that name -- is a sure way to be taken seriously! I gather you picked up this custom after arguing with people about Duh!bya, yes? And surely you held these people in higher regard than you would have otherwise? Keep up the good work!
4.23.2009 2:42pm
rosetta's stones:
And Anderson, how are you making out reviewing Barrack's "Special Interagency Task Force" on interrogations?

I think it's cute how he added the "special" in that title... it's like a little shiny spinner on a bass lure.
4.23.2009 2:47pm
rosetta's stones:
Thanks, dr, I will!

And no, I don't spend much time arguing partisan politics, for or against either branch of the democratipublicans, or your evil enemy Bush. And I actually sorta like Barrack, even if he is a repodemapublican.

Hey, I'm just trying to help these poor guys, they seem to be floundering.
4.23.2009 2:54pm
PC:
Holder is testifying in front of the House right now. It's on CSPAN3, fwiw.
4.23.2009 3:04pm
dr:
My evil enemy Bush?

Another sure way to be taken seriously: Assume that anyone who isn't wildly impressed by you must clearly be a raving liberal. You're doing great!
4.23.2009 3:05pm
rosetta's stones:
I don't assume anything, dr, you posited the partisan squabble, remember?

You seem fixated on a need to be "taken seriously". Is there anything we can do?
4.23.2009 3:19pm
dr:

I don't assume anything, dr, you posited the partisan squabble, remember?


I pointed out that your intentional misspelling of the president's name is about as impressive as those who refer to his predecessor in similarly juvenile ways.

You responded by suggesting that I consider the former president "my evil enemy."

Yup, Rosetta's Stones is a must-read.
4.23.2009 3:25pm
rosetta's stones:
No, actually, you "gathered" that I argue with some unseen mispellers, and posited a partisan basis for some fantasy posts I MUST somehow be making elsewhere. And of course these obviously evil posts I'm making here must be equally nefarious because ...(horrors)... I'm mispelling Obama's name!

Glad you enjoy my posts though.
4.23.2009 3:44pm
dr:
Wow. You see things that aren't there, like a real superhero. Hat's off to you.

Sorry everyone, I'll stop feeding now.
4.23.2009 3:47pm
rosetta's stones:
Fair enough. Let us know if you need any help with the "taken seriously" thing.
4.23.2009 3:50pm
zuch (mail) (www):
[McCain and Lieberman]: We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client – the U.S. Government – with their best legal advice.
Beg pardon to disagree, but criminal sanctions for murder don't seem to inhibit Hollywood's creative potential, nor the efficient operation of Microsoft or UPS. I don't see a problem with saying "best legal advice" doesn't include advice that verges on -- if not constitutes -- the criminal. If we encourage gummint lawyers not to break the law (by prosecuting any such transgressions), it can only improve their "work output".

<*SHEESH*>

Cheers,
4.23.2009 3:56pm
Just an Observer:
dr,

What comes through most clearly in rosetta stones' trolling is his contempt for the law and lawyers. He claims to be nonpartisan, but readers can judge for themselves whose interests his trolling serves and whose talking points such comments most resemble. Cui bono.
4.23.2009 3:57pm
zuch (mail) (www):
JaO:
Except, of course, that the Torture Act is specifically written to outlaw torture by government actors. That is the statute's whole purpose. The very definition of the crime in 18 USC 2340 begins, "'torture' means an act committed by a person acting under the color of law ..."
Good point. Kind of puts to rest the meme that we should ban torture except by the duly trained and authorised gummint people as 'necessary' for national security.

Cheers,
4.23.2009 4:03pm
Steve P. (mail):
He claims to be nonpartisan

Wait, really? Is that stuff about 'blackrobed fascists' and 'Barrack' supposed to throw us off the scent?
4.23.2009 4:08pm
MarkField (mail):

With that out of the way, arguing about externalities is still too broad. Almost all law enforcement techniques benefit the perpetrator or state while imposing costs on a suspect. This is true of Terry stops, executing search warrants, interrogations, arrests, imprisonment, etc. It's also true of fighting wars, even defensive wars such as in WWII versus Japan. That torture imposes a costs on one person while benefitting another can't in and of itself be the reason for prohibiting it.


My argument did focus on the benefit to the perpetrator because that was the context of the argument I was rebutting. However, in both posts I said that we criminalize behavior (a) when it's wrong; and (b) when it benefits the perpetrator.* So I've included a determination that the conduct is, in the first instance, wrongful.

Most of the examples you give in return involve cases where governmental sanction either doesn't exist or has failed (war) or where we allow the government to act (in limited ways, generally) because the perpetrator has committed the wrong.

The only point I'm trying to make is that those who gleefully claim that "we got information" (i.e., that we benefited) aren't thereby distinguishing torture from other crimes, they're pointing to one of the very reasons torture is criminal (a feature it shares with most crimes). Their argument undercuts their own position.

*We criminalize in other cases too; this isn't intended to be a universal statement, just a pragmatic explanation.
4.23.2009 4:12pm
rosetta's stones:
What come through most from you fierce partisans is your "you're either with us or you're ag'in us" attitude.

You and poor dr are caught up in that, I'm afraid. Because afterall, one must be on one side or the other in the partisan squabble, mustn't one? I must admit I do have contempt for that attitude.
4.23.2009 4:12pm
Anderson (mail):
your "you're either with us or you're ag'in us" attitude

I guess when we see the article, "Torture: Room for Compromise," we'll know Rosetta wrote it.
4.23.2009 4:29pm
rosetta's stones:
You know what, Anderson? I believe Barrack and Holder are writing that article, even as we speak.

Seriously, your arguments aren't with me, OR evil Cheney. They're with the 44th president, and you should have figured that out by now. I see you chomping at their boob bait, clearly so. Get it into the Congress, as believe me, satisfaction can only be found there. They will continue to block you everywhere else.
4.23.2009 4:41pm
Just an Observer:
What come through most from you fierce partisans is your "you're either with us or you're ag'in us" attitude.

"Fierce partisans?" LMAO. I am an independent who votes and pays attention between elections. I respect mainstream legal conservatism -- which used to involve reverence for the Constitution and respect for criminal law -- and I have voted Republican much of the time.

When the legal malfeasance by the Bush administration was surfacing a few years ago, I looked first to principled Republican senators to stop it, but instead they fell into line defending the Bush-Cheney regime. If the GOP is ever able to abandon its platform of torture, illegal surveillance and unbridled executive power from that era, it may be eligible for my vote again someday. But so far the party is rallying around Cheney's flag because it seems to have no other flag to follow.

As for Democratic "partisans," I notice that most identifiable Democratic critics of torture here have taken on Obama over these matters, when he follows his perceived political interest and tries to run from enforcing past violations of the law. It seems to be uber-partisans like Raum Emanuel who counsel him to move that way because they don't want to spend the political capital.

Both party establishments seem to feel a vested interest in "looking forward, not back."

I also notice that the "rosetta's stones" persona, while pretending to dislike the "repodemapublican" establishment, has the mission here of parroting its main talking point -- repeating the Big Lie that torture is all just a matter of "policy" rather than law. Somehow, when we read that meme from a blog troll, it is supposed to have more credibility than when Karl Rove says it on TV?

Cui bono.
4.23.2009 5:26pm
MarkField (mail):

I respect mainstream legal conservatism -- which used to involve reverence for the Constitution and respect for criminal law


One of the things which I've found most peculiar in these debates is the extent to which adherence to the rule of law has somehow become a "liberal" value. I'm a committed liberal, in large part because of values, but I never thought of the rule of law as a peculiarly liberal value. I thought of it as an American value.
4.23.2009 5:32pm
John Moore (www):

I guess when we see the article, "Torture: Room for Compromise," we'll know Rosetta wrote it.

You see compromise as laughable. I don't. Compromise on the definitions and on the conditions of application.
4.23.2009 5:42pm
dr:
John, I think you may have mis-read Anderson's barb. I don't think he was mocking compromise, I think he was mocking a previous commenter.
4.23.2009 5:47pm
Just an Observer:
One of the things which I've found most peculiar in these debates is the extent to which adherence to the rule of law has somehow become a "liberal" value. I'm a committed liberal, in large part because of values, but I never thought of the rule of law as a peculiarly liberal value. I thought of it as an American value.

Yes. It is surreal. The meme that only "the left" opposes torture, illegal surveillance, etc., is repeated so much that I -- who will always remember campaigning for Barry Goldwater against LBJ, and George H.W. Bush against Smilin' Ralph Yarborough -- wonder if I have really been a "liberal" my whole life.

With dismay I look at today's generation of "conservative" intellectuals at National Review. Despite a few recent twinges of dissonance over torture, as a body they can't get beyond the denial phase. It is as if mass hypnosis took over the movement during the Bush-Cheney years.
4.23.2009 5:50pm
rosetta's stones:
Gosh, all those words to say nothing. Somehow, reading the comments of a verbose, sanctimonious blog troll, who fills discussion comments day after day with the same talking points, pointing out that same attribute in somebody else is... ironic.

Look, chief, I'm just pointing out the obvious. It's up to you whether you choose to open your eyes, or simply swallow the boob bait. I look at people's actions, and right now, Barrack's/Holder's actions appear to be (mostly) absorbing coercive interrogations as policy. Watching you poor souls flailing about, breathlessly awaiting the frogmarch, is just depressingly inefficient.

Look ahead of you. Do you see as clearly as I see where this is going? If you don't like what you see, you better check with your Congressional rep, because it'll be there shortly.
4.23.2009 5:50pm
rosetta's stones:
And for you too, Mark. If you think the law is being misapplied here, you better check with the president and his attorney general. So far, they appear to be treating this as a policy disagreement, your fervent desires notwithstanding.

Congress. Hearings. tv cameras. Witnesses. Racks as exhibits. That is the avenue for you, Mark.

You can't whine about somebody else, while swallowing the WH boob bait. It don't work that way.
4.23.2009 5:56pm
Anderson (mail):
John, I think you may have mis-read Anderson's barb. I don't think he was mocking compromise, I think he was mocking a previous commenter.

Thanks for the barb, Doc, but I was mocking both.

My attitude towards torture is Shep Smith's, as opposed to "America doesn't fucking torture, except some of the time."

Torture is malum in se.
4.23.2009 6:14pm
Leo Marvin (mail):
Mark Field:

People here are celebrating all the information we supposedly learned from torture. That, however, is precisely why we ban it -- *we* get to benefit at the expense of *someone else's* suffering.

Aren't you confusing correlation with causation? Do you really think torture would be less categorically prohibited if it was motivated only by retribution and sadism? I don't think so. I hope not.


Anderson:
and the perpetrator can benefit from the act

Indeed, intent to benefit is usually the motive for committing crimes. We don't usually have to pass laws against cutting off one's own fingers with a hatchet.

Again, we don't usually have to, but I can't think of many things we prohibit that we wouldn't anyway, even if they were stripped of potential gain.
4.23.2009 6:22pm
Leo Marvin (mail):
Mark Field:

People here are celebrating all the information we supposedly learned from torture. That, however, is precisely why we ban it — *we* get to benefit at the expense of *someone else's* suffering.

Aren't you confusing correlation with causation? Do you really think torture would be less categorically prohibited if it was motivated only by retribution and sadism? I don't think so. I certainly hope not.


Anderson:
and the perpetrator can benefit from the act

Indeed, intent to benefit is usually the motive for committing crimes. We don't usually have to pass laws against cutting off one's own fingers with a hatchet.

Again, we don't usually have to, but I can't think of many things we prohibit that we wouldn't if they were stripped of potential gain.
4.23.2009 6:23pm
Leo Marvin (mail):
(Why does it do that? First it didn't post, and then it posted both?)
4.23.2009 6:26pm
John Moore (www):

Aren't you confusing correlation with causation? Do you really think torture would be less categorically prohibited if it was motivated only by retribution and sadism? I don't think so. I certainly hope not.

Homicide may be justifiable or punishable by death, depending on the motivation. Why not torture?
4.23.2009 6:43pm
einhverfr (mail) (www):
geokstr:


Einhverfr, you are saying that X amount of attacks proves that the intel was ineffective. I would ask you to prove that if we hadn't gotten the intel we did and/or forced the fanatics to fight in Iraq instead of having their assets freed up to come here that we would not have had (X + Y)squared number of attacks on the West instead. In case you didn't notice until Bush was elected, the jihad has been going on for decades already, but as our new Fearless Leader has abjectly confessed to the entire world, it's all our own fault too.


I did notice. The Carter-era "Join the Jihad" posters regarding Afghanistan and all that jazz....

Also I was fairly careful about saying "public information." As it is there is NO empirical evidence available to the public that the rate of interception of attacks relative to the number of attacks has gone up. Until there is, I have to conclude that we are better off sticking with what worked in WWII than abandoning treaties we entered into just because we are feeling a bit insecure at the moment.
4.23.2009 7:06pm
MarkField (mail):

Aren't you confusing correlation with causation? Do you really think torture would be less categorically prohibited if it was motivated only by retribution and sadism? I don't think so. I hope not.


In my view, torture is and should be illegal regardless of whether it "works". Those who are confused are those who try to justify torture on the ground that we (supposedly) got information that way. I'm arguing against them, pointing out that accepting their claim of benefit actually undermines their entire argument.
4.23.2009 7:09pm
PC:
Homicide may be justifiable or punishable by death, depending on the motivation. Why not torture?

Torture is a specific bad act that is often justified post hoc with good intentions (road to hell, etc.). Do you doubt that Japanese WW2 soldiers were torturing American POWs in order to gain valuable intelligence to save innocent Japanese lives? The Spanish Inquisition had an authority even higher than that: God.

I agree with Oren on this: If someone believes that torture is the only way to prevent the loss of life and they decide to torture a suspect, they should stand trial and be able to offer an affirmative defense of necessity. This is a tradition in our system of justice and should remain available for the torturers. If waterboarding KSM actually stopped active plans (versus the time travel BS we've been fed), let the people responsible for the torture answer for it.

Laws v. Men (Enlightenment)
4.23.2009 7:11pm
jukeboxgrad (mail):
rosetta:

the guy's offering opinion, not a fact in sight


As PC said, we could use some smarter trolls. You seem to be having a lot of trouble understanding the meaning of some simple English words: 'fact' and 'opinion.' Consider these two statements:

A) Interrogating Larry using conventional methods was effective in producing valuable information. Torturing him was not.

B) Chocolate is better than vanilla.

Do you understand that one of those statements is a statement of fact, and one is an opinion? Can you tell which is which?

Of course it's important to understand that not every statement of fact is truthful. So if one day Person X says A, that doesn't necessarily mean that A is true. However, when Person X says A, they are purporting to be presenting a fact.

Soufan made a number of statements similar to A. Those statements are not statements of opinion. They are statements of fact. You are free to claim that he's wrong, which would essentially mean that you're calling him a liar. However, if you claim that he's presenting an opinion rather than a fact, you're just demonstrating that you're too dumb to speak English properly.

Cheney and the rest of the Fourth Reich are offering opinions


They're doing more than that. They are making statements of fact. For example, they have claimed that torturing KSM prevented AQ from knocking down a building in LA. Trouble is, that is a statement of fact that is demonstrably false.

You missed what box saw right off, that the guy couldn't know what "backfired" in those coercive interrogations, because he also admitted in that article that he wasn't involved with the investigations after they went waterboard


You're confused, and it's partially because I incorrectly conceded too much in my prior statement. Here is our earlier exchange:

How does he know what went on after he left?


Duh. He wasn't in the room ("after he left"), but he probably has personal relationships with people who were. He is not claiming to be offering speculation and opinion (when he says "alternative methods … backfired"). He is claiming to be offering fact.


I was assuming, and conceding, that Soufan wasn't in the room when the CIA was using "alternative methods." Now I realize that he was in the room while CIA used certain torture methods.

More information about Zubaydah's interrogation can be found in a DOJ report that was issued last year (pdf; p. 110 in Adobe Reader). Soufan mentioned this report. The report explains that there was a period of time when both FBI and CIA were involved in interrogating Zubaydah. It seems that there was a gradual transition of control from the former to the latter, and finally the FBI pulled out entirely.

CIA didn't waterboard Zubaydah until 8/02, after FBI left. But CIA did introduce certain other "enhanced techniques" prior to that time, while FBI was still there.

Soufan says "harsh techniques were introduced later in August." That term ("harsh techniques") seems to be a reference to waterboarding. But other torture techniques (what he calls "enhanced techniques") were introduced by CIA earlier, and he witnessed those directly.

So Soufan is not expressing "opinions." He's reporting what he witnessed directly. He had left before the waterboarding started, but he witnessed the effects of other torture.

Thanks for pointing out that he was "reading between the lines" on those memos, rather than having first hand knowledge.


Wrong. He did have first-hand knowledge.

The FBI wasn't involved with these investigations after they went waterboard, by this guy's own admission.


But other forms of torture started before the waterboarding started, and Soufan was present for that.

I see PC also explained this.

this same guy is claiming that he knows what happened in the investigation after it went waterboard.


Wrong. He "is claiming that he knows what happened in the investigation after" CIA started using torture. Because various other forms of torture were used before the waterboard was used.

Aside from that, it's very likely that Soufan has detailed knowledge of what happened even after he left, because he most likely has personal relationships with the other guys involved, both FBI and CIA. He spoke favorably about the CIA personnel. They are probably his friends, since they worked together closely, under high-stress conditions, far from home. He makes it clear that the pressure to torture came from elsewhere, and not from the CIA personnel on the scene.

Cheney and the rest of the Fourth Reich are offering opinions, but at least they have read the reports, unlike this FBI agent. The admiral has likely read all of it, and we have his opinion(s) as well.


It's funny how you're impressed with people who read "reports." Those "reports" were probably written by Soufan and his friends. I guess you think reading "reports" is superior to actually being there.

I don't assume anything


Really? Then there must be someone else using your name who claimed that Bush was dr's "evil enemy," even though dr had said nothing to indicate that he views Bush as an "evil enemy." That other guy using your name is bad for your credibility. You should try to get him to stop.

Barrack's/Holder's actions appear to be (mostly) absorbing coercive interrogations as policy.


If he wants to try to gain your support and lose mine, then he should actually do what you claim he is doing.

=================
tsotha:

It's possible they arrested Padilla on a different charge and then rearrested him based on something they learned as a result of Zubaida's testimony.


That's a creative theory, but unfortunately it doesn't correspond to reality. "Rearrested him" implies that he was released after he was arrested for the first time. But that didn't happen. Padilla was arrested on 5/8/02 and has continuously been in US custody ever since. So when NR told us that torturing KSM led to Padilla's arrest, NR was doing this: bullshitting.

And here's the other interesting thing about that particular nugget of bullshit: it was obvious that it was bullshit as soon as they said it. Because Padilla's arrest in 2002 was public information soon after it happened, and KSM arrest in 2003 was public information soon after it happened. So NR's bogus claim is proof that they lack rudimentary fact-checking. Either that, or they don't mind lying. (Or both, of course.)

The bogus claim also tends to create the impression that NR's readers are brain-dead. How come there's no correction on the article? Either no readers noticed the blatant error and informed NR, or NR decided to blithely let the error stand, despite being notified. Either scenario is not impressive.

I dimly remember Padilla's status changing a couple of times, though I couldn't google up anything authoritative.


What I just said (regarding Padilla being in custody continuously) is clearly explained and documented in his wiki article, which is painfully easy to find. I think you need to have your google checked, because it seems to not be working properly.
4.23.2009 7:21pm
einhverfr (mail) (www):
JBG:

A "few minutes?" How about 183 times? And how did waterboarding KSM in 3/03 lead to the arrest of Padilla on 5/8/02? Answer: time travel.


And the Government has now unwittingly revealed the "alien technology" they were reverse-engineering in Area 51. This technology allows them to travel backwards in time to capture those implicated in torture-laden confessions, so that they can be captured before they know someone related to their plot is being tortured! Brilliant!

The next step will naturally be an end-run against ex post facto laws by passing them before the act in question occurs!
4.23.2009 7:23pm
PC:
And the Government has now unwittingly revealed the "alien technology" they were reverse-engineering in Area 51. This technology allows them to travel backwards in time to capture those implicated in torture-laden confessions, so that they can be captured before they know someone related to their plot is being tortured! Brilliant!

Can you imagine if DemoncRats had access to this...oh shi-
4.23.2009 7:42pm
John Moore (www):

I agree with Oren on this: If someone believes that torture is the only way to prevent the loss of life and they decide to torture a suspect, they should stand trial and be able to offer an affirmative defense of necessity.


That is a policy choice, which would, of course, prevent torture from ever being used, no matter how critical, except by Jack Bauer.
4.23.2009 7:45pm
PC:
That is a policy choice

A policy choice involves deciding whether or not you can operate inside the law, not to make post hoc justifications for breaking the law. Is it coincidence that two of the actors from the Nixon administration (if I have to point out who, this discussion is meaningless) were also involved with this crap?

...which would, of course, prevent torture from ever being used, no matter how critical, except by Jack Bauer.

Which is the point. Jack Bauer uses torture in extremis and requires an affirmative defense when he's called to account for his crimes.

I don't understand what the problem is? Do you think torture should become legal? If torture is so effective why don't we let our domestic forces use it? Do you hate the children?
4.23.2009 8:00pm
John Moore (www):


I don't understand what the problem is? Do you think torture should become legal?

Yes, specific kinds (I said before, waterboarding, which many not on this board do not consider to be torture) under tightly constrained restrictions.


If torture is so effective why don't we let our domestic forces use it?

The Bill of Rights?

Do you hate the children?

When will you stop beating...?
4.23.2009 8:19pm
Andrew J. Lazarus (mail):
Moore: Where in the Bill of Rights is torture during a domestic interrogation prohibited? I suppose the 8th Amendment prohibits post-conviction torture, but not investigative. Besides, with torture as such an amazing tool that has saved countless lives already, even if this were true, surely the only responsible act would be a Constitutional Amendment.
4.23.2009 8:33pm
rosetta's stones:
Hey box, you don't seriously expect me to wade through all that spam, do you?

No read to read between the lines on this one, man. That FBI agent was removed from the investigaton when it went waterboard, because of FBI policy re coercive interrogations. That's what he said... not me.

He has an opinion on what happened during those investigations, after he left them, formulated by reading between the lines, in his words... same as you and me and Cheney.
4.23.2009 8:58pm
einhverfr (mail) (www):
Andrew Lazarus:

I suppose the 8th Amendment prohibits post-conviction torture, but not investigative.


Actually by this logic, torture of a defendant during the trial or even jury deliberations would be entirely Constitutional, right?

Actually, I would argue that the combination of 4th, 8th, and 14th amendments ban torture both prior to and following conviction. Certainly a necessary element of torture is the deprivation of liberty, and certainly this deprivation of liberty is more profound than mere imprisonment, correct?
4.23.2009 9:15pm
Andrew J. Lazarus (mail):
Speaking seriously, I'd say torture during an investigation is banned by the 5th Amendment. But then, who ever thought we would live to see Americans figuring out how to explain and excuse torture?
4.23.2009 9:33pm
PC:
Where in the Bill of Rights is torture during a domestic interrogation prohibited? I suppose the 8th Amendment prohibits post-conviction torture, but not investigative.

Oh Scalia, you scamp.
4.23.2009 9:36pm
jukeboxgrad (mail):
rosetta:

you don't seriously expect me to wade through all that spam, do you?


I see that I overestimated and exceeded your attention span. My mistake. This time I'll make the key point so simple that even you'll be able to understand: you're completely full of shit.

He has an opinion on what happened during those investigations, after he left them


It's true that Soufan "has an opinion on what happened during those investigations, after he left them." But that's not the heart of what he said. The heart of what he said is a factual statement, not an opinion. And it's a factual statement regarding what he witnessed personally, not "what happened during those investigations, after he left them." The fact that he is a personal eyewitness to CIA torture is clearly documented in the DOJ report I cited earlier (pdf; p. 110 in Adobe Reader). And since you apparently weren't able to find the relevant text yourself, here it is:

I. The Interrogation of Abu Zubaydah

The first major incident involving the use of aggressive interrogation techniques on a detainee that was reported to senior executives at FBI Headquarters was the case of a detainee known as Abu Zubaydah. … In late March 2002, he was captured in Faisalabad, Pakistan. … He was then taken to a secret CIA facility for medical treatment and interrogation.

Initially, the FBI and the CIA planned a joint effort to obtain intelligence from Zubaydah … The FBI selected SSAs Gibson and Thomas to travel to the CIA facility to interview Zubaydah. Gibson and Thomas were selected for the assignment because they were familiar with al-Qaeda and the Zubaydah investigation, were skilled interviewers, and spoke Arabic. [Note: Thomas and Gibson are pseudonyms. Soufan is apparently Thomas.]

A. FBI Agents Interview Zubaydah and Report to FBI Headquarters on CIA Techniques

Gibson and Thomas were instructed by their FBI supervisor, Charles Frahm … that the CIA was in charge of the Zubaydah matter and that the FBI agents were there to provide assistance. …

Gibson said that he and Thomas initially took the lead in interviewing Zubaydah at the CIA facility because the CIA interrogators were not at the scene when Zubaydah arrived. Gibson said he used relationship-building techniques with Zubaydah and succeeded in getting Zubaydah to admit his identity. When Zubaydah's medical condition became grave, he was taken to a hospital and Gibson assisted in giving him care, even to the point of cleaning him up after bowel movements. Gibson told us he continued interviewing Zubaydah in the hospital, and Zubaydah identified a photograph of Khalid Sheik Muhammad as "Muktar," the mastermind of the September 11 attacks.

Within a few days, CIA personnel assumed control over the interviews, although they asked Gibson and Thomas to observe and assist. Gibson told the OIG that the CIA interrogators said Zubaydah was only providing "throw-away information" and that they needed to diminish his capacity to resist.

Thomas described for the OIG the techniques that he saw the CIA interrogators use on Zubaydah after they took control of the interrogation. Thomas said he raised objections to these techniques to the CIA and told the CIA it was "borderline torture." He stated that Zubaydah was responding to the FBI's rapport-based approach before the CIA assumed control over the interrogation, but became uncooperative after being subjected to the CIA's techniques.…

Thomas communicated his concerns about the CIA's methods to FBI Counterterrorism Assistant Director Pasquale D'Amuro by telephone. D'Amuro and Thomas told the OIG that D'Amuro ultimately gave the instruction that Thomas and Gibson should come home and not participate in the CIA interrogation.


(Emphasis added.) Would you grasp this more easily if it was written in crayon? Thomas/Soufan personally witnessed what he described as "borderline torture." This is not an expression of "opinion on what happened during those investigations, after he left them." It's a statement of fact, based on his personal presence as an eyewitness. So feel free to call him a liar, because that's the only way you can deny what he reported. And when you repeatedly pretend that he's only talking about "what happened during those investigations, after he left them," you're doing nothing other than making a fool of yourself. You are demonstrating that you have the same relationship with reality as the folks who believe in time travel.
4.23.2009 9:37pm
PC:
That FBI agent was removed from the investigaton when it went waterboard, because of FBI policy re coercive interrogations. That's what he said... not me.

Let's go back to the contentious "cite?" At what point was it claimed that the officer was removed removed "when it went waterboard?"

Boop. Beep. Boop. Beep.
4.23.2009 9:40pm
jukeboxgrad (mail):
andrew:

But then, who ever thought we would live to see Americans figuring out how to explain and excuse torture?


Indeed. And who thought we would ever have "a president determined to torture a prisoner to get false evidence on which to justify a war."
4.23.2009 9:44pm
rosetta's stones:
Come on, box, I ain't reading all that!

Look, I'm sure the FBI guy is a fine man, and wants to do the right thing, but when he blurts out "I saw that using these alternative methods on other terrorists backfired on more than a few occasions...", at the same time he's acknowledging that the FBI wouldn't allow him to participate in ANY investigations involving these "alternative methods", let's just say that this presumed good man is confused.

The 2 statement don't jibe. "More than a few" and "zero" are a ways apart.
4.23.2009 9:48pm
Leo Marvin (mail):
Mark,

In my view, torture is and should be illegal regardless of whether it "works". Those who are confused are those who try to justify torture on the ground that we (supposedly) got information that way. I'm arguing against them, pointing out that accepting their claim of benefit actually undermines their entire argument.

I agree right up to "undermines." The claimed benefit doesn't help their argument unless they can prove an occurrence of the proverbial ticking time bomb. But how does it undermine it, unless you believe torture wouldn't be categorically prohibited if no one claimed it yielded useful intel?
4.23.2009 9:52pm
Leo Marvin (mail):
To be clear, even the ticking time bomb scenario doesn't help those arguing for legality. It would be an affirmative defense to charges of what should in every circumstance be presumed criminal. That is, of course, assuming a ticking time bomb scenario ever actually occurred outside of 24. They've become this generation's Klaus Voorman. Everybody's heard about them, but nobody's ever seen one. (I've got a shiny nickel for anyone who recognizes that reference. No fair googling.)
4.23.2009 10:09pm
MarkField (mail):

I agree right up to "undermines." The claimed benefit doesn't help their argument unless they can prove an occurrence of the proverbial ticking time bomb. But how does it undermine it, unless you believe torture wouldn't be categorically prohibited if no one claimed it yielded useful intel?


It undermines it because it's like saying "sure I robbed the bank, but I got the money". We criminalize conduct not just because it's wrong in itself (though that is an important part of the reason and in some cases alone a sufficient ground), but because the wrongdoer benefits by his conduct. This explains why it's against the law for me to cut off your finger but not my own.

The benefit gained by the wrongdoer does not mitigate the offense, it's part of the reason why the conduct is banned. By continuing to claim "we benefited", torture advocates are reinforcing a reason why we have banned it.
4.23.2009 10:20pm
MarkField (mail):

Speaking seriously, I'd say torture during an investigation is banned by the 5th Amendment.


Yes, it's a due process violation. See Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944):

“There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”
4.23.2009 10:23pm
jukeboxgrad (mail):
rosetta:

he's acknowledging that the FBI wouldn't allow him to participate in ANY investigations involving these "alternative methods"


Duh. Why do you think he left? He didn't leave before the CIA started torturing. He left after the CIA started torturing. He left because the CIA had started torturing. In other words, he witnessed the CIA torturing.

I see that I was correct to lump you in with the time travel crowd. You have a hard to time grasping the concept of events happening in a sequence.

"More than a few" and "zero" are a ways apart.


That phrase ("more than a few") comes from the following passage:

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.


He seems to be saying that the scenario he witnessed with Zubaydah was something he also witnessed with other prisoners. Do you have any evidence that this claim is false? Let us know when you find some.

I ain't reading all that!


Hmm, let's see. You're obviously very confused about what happened. You're also announcing that you refuse to read the official account of what happened. I wonder if those two facts are connected in any way.

We can see that keeping up with stuff like this is too complicated for you. Maybe you should stick with reading stuff like this.
4.23.2009 10:31pm
jukeboxgrad (mail):
moore:

Yes, specific kinds (I said before, waterboarding, which many not on this board do not consider to be torture) under tightly constrained restrictions.


If waterboarding is permitted, why not sodomy? Because it's icky? Why not electric shocks to the genitals? Compared to waterboarding, it would be easier and more practical to articulate "tightly constrained restrictions." After all, regulating and measuring a flow of electricity is probably easier and less messy than doing the same with a flow of water. So what's the problem? Why get stuck with a technique that goes back to the Spanish Inquisition? Why not take advantage of modern technology?

Do you feel squeamish about these proposals? How many lives are you willing to sacrifice in order to avoid facing your squeamishness?

I realize you've ducked this question many times in the last few days, but I was hoping that maybe by now you'd finally be ready to share your reasoning. If you have any.
4.23.2009 10:39pm
rosetta's stones:
box, Zero and more than a few are pretty much mutually exclusive. But maybe it's the new math!

Shorten up your posts, bud. And tighten up the formatting... those things read like a kidnapper's note.
4.23.2009 10:56pm
Anderson (mail):
Those who are confused are those who try to justify torture on the ground that we (supposedly) got information that way.

Sullivan was quoting a fellow who pointed out that "it works" cannot possibly justify torture.

That's because the argument proves too much.

Suppose that sodomizing KSM's children before his eyes would break him and make him tell everything he knows. Ex hypothesis, that "works."

Is it justified?

(1) "Yes." Thanks for playing; you're sick; Vanna has a nice ride to the nuthouse for you.

(2) "No." Ah. Then there are *some* things that we simply WILL NOT DO, whether they "work" or not.

The question then becomes one of degree, and it becomes clear that whether torture "works" is not the only issue to be addressed.
4.23.2009 10:56pm
Leo Marvin (mail):
Mark,

It undermines it because it's like saying "sure I robbed the bank, but I got the money". We criminalize conduct not just because it's wrong in itself (though that is an important part of the reason and in some cases alone a sufficient ground), but because the wrongdoer benefits by his conduct.

But this assumes the conclusion. What's your basis for saying we criminalize certain behavior because it benefits the perpetrator? Can you give some examples of crimes that would be permissible if we were able to prevent any possibility of benefit to the perpetrator?

This explains why it's against the law for me to cut off your finger but not my own.

I don't think so. What benefit do you get from one and not the other? I think we treat those differently because you've presumably consented to cutting your own finger off, but we're properly skeptical of the quality of consent to others doing us serious harm.

Again, none of this legitimizes any of the pro-torture arguments. I just don't think they're self-defeating in that particular way, or that it matters, given that the Kantian rationale is absolute.
4.23.2009 11:39pm
jukeboxgrad (mail):
rosetta:

Zero and more than a few are pretty much mutually exclusive.


Here's what's "mutually exclusive:" your fantasies and reality. "Zero" is your claim with regard to how much CIA torture was witnessed by Soufan. Trouble is, that claim came straight from your imagination. So whatever you do, don't pay any attention to the DOJ report which documents that Soufan witnessed CIA torture. Because we can see that you're very attached to your fantasies, and you shouldn't give them up until you're clearly ready to handle reality. I think it's going to be a while.

Shorten up your posts, bud. And tighten up the formatting... those things read like a kidnapper's note.


Do you think you might be able to put together a complete set of writing tips for me? Because I'd love to learn how to write posts just like yours: disingenuous counterfactual claims backed by not even a pretense of supporting evidence. What's your secret? How did you learn how to do that? Does the GOP have a special school? I promise I won't share your secrets with anyone.
4.24.2009 12:00am
MarkField (mail):

I just don't think they're self-defeating in that particular way, or that it matters, given that the Kantian rationale is absolute.


Fine, then they're self-defeating for those who don't accept a Kantian rationale. Which, it appears, includes all torture advocates.


What's your basis for saying we criminalize certain behavior because it benefits the perpetrator?


It's hard to think of a crime which does NOT benefit the perpetrator, at least in some sense. Of course, many things which do benefit an actor are not crimes.


Can you give some examples of crimes that would be permissible if we were able to prevent any possibility of benefit to the perpetrator?


Bribery, depending on the statute.
4.24.2009 12:03am
John Moore (www):
Box:

If waterboarding is permitted, why not sodomy? Because it's icky? Why not electric shocks to the genitals? Compared to waterboarding, it would be easier and more practical to articulate "tightly constrained restrictions." After all, regulating and measuring a flow of electricity is probably easier and less messy than doing the same with a flow of water. So what's the problem? Why get stuck with a technique that goes back to the Spanish Inquisition? Why not take advantage of modern technology?

Do you feel squeamish about these proposals? How many lives are you willing to sacrifice in order to avoid facing your squeamishness?

I realize you've ducked this question many times in the last few days, but I was hoping that maybe by now you'd finally be ready to share your reasoning. If you have any.

It's very simple, box. I believe waterboarding to be sufficient, effect and more appropriate than the various straw man proposals you have provided.
4.24.2009 12:17am
PC:
It's very simple, box. I believe waterboarding to be sufficient, effect and more appropriate than the various straw man proposals you have provided.

Would you like to share with us the specific intelligence that you have gained from waterboarding? Agent Soufan has already given his point of view.
4.24.2009 2:08am
jukeboxgrad (mail):
moore:

I believe waterboarding to be sufficient, effect and more appropriate than the various straw man proposals you have provided.


I suggest you review the meaning of the term "straw man," because you're using the term inappropriately. I am not misrepresenting your position. I'm simply asking you to explain it.

And you're still doing what you've been doing all along; you're reporting your opinion, but refusing to offer any rational basis for it.

You claim waterboarding is "sufficient." Really? How do you know? What about when it's not? What about when the time bomb is ticking, and lives hang in the balance? Let's recall Krauhammer's classic formulation: "A terrorist has planted a nuclear bomb in New York City. It will go off in one hour. A million people will die. You capture the terrorist. He knows where it is. He's not talking."

What if the waterboarding you call "sufficient" has already been tried 183 times? Notice how some people have interpreted that number: to mean that the subject "has figured out that his captors are not actually going to kill him and has stopped fearing the technique." And that it was something he "got used to rather quickly and decided it wasn't all that bad and certainly worth holding out."

If it was "sufficient," why did we need 183 repetitions? Doesn't that mean "it wasn't all that bad?" Doesn't that mean the subject "has stopped fearing the technique?" And how can you afford to take the time for so many repetitions when the nuclear time bomb is ticking, and there are a million lives in the balance?

The idea that waterboarding is "sufficient" (i.e., able to fully crack anyone very quickly) is one of the biggest lies we've been told (in the discussion of torture; the other Big Lie is that torture saved LA, via time travel). The fact that the torturers tried so many repetitions means that the torturers themselves didn't believe the lie they were promoting. And many, many times we've been fed crap like this (Mr. K. again): "According to CIA sources cited by ABC News [that darn liberal media], Khalid Sheikh Mohammed 'was able to last between two and 2 1/2 minutes before begging to confess.' " Now that we know that claim is baloney, why should anyone still believe that waterboarding is "sufficient?" (Saying that we found waterboarding "sufficient" reminds me of my friend who knows exactly how to quit smoking, and he's so good at quitting that he does it over and over again.) And just to be clear: it's possible that KSM was indeed "begging to confess" after the very first "2 1/2 minutes." But if so, we apparently didn't trust that it was a full confession, because we repeated the cycle 182 more times. Which means we didn't believe the lie we were telling ourselves about "sufficient."

And when you are called to console the next-of-kin, how are you going to explain the choice you made that apparently contributed to the deaths of their loved ones? How are you going to explain (K again) your "abdication of the duty to protect the victims of a potentially preventable mass murder?"

How are you going to explain why you ruled out certain techniques that perhaps would not have required 183 repetitions? Techniques that would have caused no permanent physical damage to the terrorist who was in your hands?

These are serious questions. Your insistence on ducking them is a vivid demonstration of your manifest unseriousness, and your deep intellectual cowardice.
4.24.2009 6:52am
jukeboxgrad (mail):
pc:

I agree with Oren on this: If someone believes that torture is the only way to prevent the loss of life and they decide to torture a suspect, they should stand trial and be able to offer an affirmative defense of necessity. This is a tradition in our system of justice and should remain available for the torturers.


This is a very important point (and well said), and it's the proper answer to the moral dilemma of the ticking time bomb.

In reviewing the words of the depraved Krauthammer from over three years ago, I'm surprised to notice that he supports this view, in a way. But I'm sure he doesn't want us to notice that he's doing so. Recall what he said:

I would propose … a ban against all forms of torture … except in two contingencies: (1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM). … These exceptions to the no-torture rule would … be reserved for highly specialized agents … Nor would they be acting on their own. They would be required to obtain written permission … from the highest political authorities in the country … or from a quasi-judicial body modeled on the Foreign Intelligence Surveillance Court …. Or, if the bomb was truly ticking and there was no time, the interrogators would be allowed to act on their own, but would require post facto authorization within, say, 24 hours of their interrogation, so that they knew that whatever they did would be subject to review by others and be justified only under the most stringent terms.


(Emphasis added.) The comparison to FISA is interesting. FISA indeed has a mechanism for "post facto authorization." As a matter of historical practice, the FISA court has almost always said yes. But what if they say no? Then the wiretapping has to stop, but there's no punishment for the eager wiretapper.

But what about in K's proposed scenario? What if I torture in a hurry, on account of a TTB, and then seek "post facto authorization" from the court he envisions? And what if the court says no? What happens? Is it possible that K envisions that I simply stop the torture (which is analogous to ending the wiretapping in a FISA situation), and that I am then subject to no penalty? Such a system would be absurd, because it would mean that potential torturers have a free pass to torture for 24 hours (or whatever the stipulated period is), with no penalty.

The FISA system is essentially a free pass to wiretap for a certain period, and that's a weakness in the system, but it's a very tolerable weakness. A wiretap for a limited period does no great harm to someone, especially if we're constrained from keeping or using the information gained (which is what happens if the FISA court denies the request for "post facto authorization"). But torturing someone for 24 hours is indeed a chance to do great harm. And torturers are inclined to claim (and indeed have been claiming) that 24 hours is much more than they really need, to get everything they want from a prisoner, if ostensibly "sufficient" techniques like waterboarding are permitted.

So K could certainly not be envisioning that there are no penalties on the torturer if the court says no (i.e., rejects the request for post facto authorization). Such a proposal would be nuts, even for him. The two situations are very incomparable (wiretapping and torture). A wiretapper is likely to have relatively limited interest in a wiretap if he knows it's likely to be struck down quickly by a court. Productive wiretapping generally takes time. Whereas a torturer might have great interest in torturing for 24 hours, even if he knows full well that the court is going to reject his request for post facto authorization, if he also knows the court has no power to punish him for yanking their chain. So surely K is not envisioning such a toothless court.

In other words, the system K is proposing is quite similar to what you, Oren and many others (including me) have advocated: that torturers "should stand trial and be able to offer an affirmative defense of necessity." This is nothing but a form of "post facto authorization." With penalties, if the authorization is not granted.

I don't think K would be willing to admit the similarity in the two proposals. I think he's hoping that no one will notice that his proposed "quasi-judicial body modeled on the Foreign Intelligence Surveillance Court" is a complete joke if it has no power to impose penalties on a torturer who fails to present what amounts to "an affirmative defense of necessity."

So here's the proper answer to the crowd making a big fuss about the mythical TTB: the torturer should be free to torture, as long as they are willing to later present themselves to a court that can either grant or deny "post facto authorization." Which is, surprisingly, very similar to what K proposed. And if an uber-wingnut like him thinks it's a good idea, what lesser wingnut could possibly object?
4.24.2009 8:09am
Just an Observer:
jukeboxgrad: The comparison to FISA is interesting. FISA indeed has a mechanism for "post facto authorization." As a matter of historical practice, the FISA court has almost always said yes. But what if they say no? Then the wiretapping has to stop, but there's no punishment for the eager wiretapper.

You apparently are referring to the "emergency" provision of FISA that has allowed warrantless wiretapping prior to court approval. I think you are mistaken about the consequences.

Actually, under that provision, if the emergency surveillance is undertaken prior to the court order, and the FISA judge later finds that there had been insufficient cause, there would be uncomfortable consequences for the government: The court will direct that the target of the secret wiretap be notified, unless the government can show cause not to. 50 USC 1806(j) (If all you mean in that the criminal sanctions in FISA would not be triggered, that is something different. No one would be prosecuted at all because the FISA procedures were followed.) AFAIK, the "emergency" mechanism has seldom been used anyway, because FISA judges are ready to act on very short notice to approve warrants.

Such a notification mechanism obviously would be meaningless in the case of torture, because the victim would already be acutely aware of it.
4.24.2009 10:11am
jukeboxgrad (mail):
You apparently are referring to the "emergency" provision of FISA that has allowed warrantless wiretapping prior to court approval.


Yes.

The court will direct that the target of the secret wiretap be notified, unless the government can show cause not to.


I didn't know, and I'm sure you're right, and I appreciate you pointing that out.

So I should not have implied that the FISA court is completely toothless, in the event where the emergency provision is abused. It does have a mechanism to discourage frivolous use of the emergency provision.

But I'm sure you realize my larger point is unaffected. In fact, your observation makes my point stronger. K is making a comparison between torture and wiretapping, and he suggests the former should have an emergency provision similar to the latter. And surely he would agree that a torturer who abuses the emergency provision must be punished somehow.

Before I argued why this torturer would need to be punished, even though an analogous wiretapper isn't punished. But you're pointing out that an analogous wiretapper is indeed punished (at least to the degree that they have to notify the target). All the more reason to expect K to acknowledge that some penalty must apply to a torturer who abuses the emergency provision that K proposed.

Which means there is quite a bit of similarity between what K proposed and what PC, Oren et al suggested. And I think K would prefer for this similarity to be overlooked, because it leads in the direction of his pals being prosecuted.

Such a notification mechanism obviously would be meaningless in the case of torture, because the victim would already be acutely aware of it.


Right. Which means the court would need some other means to discourage frivolous use of the emergency provision. Maybe even something resembling a criminal penalty. Which brings us back to the question I'm raising: if K's proposal makes sense, then why not just let the torturer submit himself to our normal judicial process? The process and outcomes would probably be fairly similar. I realize there could be concerns about classified information, but there are probably various methods of dealing with that, and this kind of case should be exceedingly rare.
4.24.2009 1:39pm
Richard Aubrey (mail):
If you are arguing that the argument that torture is not justified just "because it works", since most crimes are designed to benefit the perp, you have to face the reverse.
Is torture to be avoided even though it works?
Yes or no?
You can't argue the first without having to have given up on "it never works", so you're kind of nekkid here.
Now that it sometimes works, you should be concerned about the reverse of arguing that "it works" is not justification.
IOW, we are going to pay a price for eschewing it.
Make the case to the potential victims, please.
Pretend you're explaining to parents why a group home for pedophiles near an elementary school is a good idea. You can start out with--"Shut up."
Same thing with why avoiding torture altogether even though it might save lives is a good idea.
"Shut up." ought to do it.
4.24.2009 11:43pm
Leo Marvin (mail):
Richard,

We choose not to do lots of things that might save lives. Like having cops execute every suspect they catch. Obviously there's a value we ascribe to the forbearance that makes it the greater good. I'm sure you can figure out the rest.
4.25.2009 6:40pm

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